Reforming jurisdictions often look to other jurisdictions as models for legal and microeconomic reform.
Australia looked to NZ in the 1990s when it introduced the performance based building code. Japan looked to Australian building regulatory law reforms in the late 1990s when it investigated the introduction of private certification of building approvals. I myself looked to the French-based liability concepts of “liabilitie decennial” 10-year liability capping when I headed up the team that developed the Australian National Model Building Act in the early 1990s.
Jurisdictions often derive and extract that which is considered to be best practice building regulation when they reform their Building Acts and Codes from other jurisdictions that are revered and venerated for their supposedly enlightened approach to building control. This is an established law reform methodology, but nevertheless is attended by considerable danger if the reforming jurisdiction fails to carry out thorough due diligence on that which purports or is sometimes “spruiked” as being best practice.
If indeed a reforming jurisdiction is found wanting in its due diligence and comparative analyses, it runs the risk of importing regulatory concepts and innovations that (absent the “laboratory of the passing of time and the studying of new regulatory systems in operation”) are flawed. This can compromise the new regulatory paradigm and give rise to unintended consequences.
The Japanese law reformers are very live to this possibility and their reforming philosophy, or regulatory law reform “scientific method” as it were, is very much concerned with the notion of that which has been observed to fail.
This method has everything to do with “fail-proofing” current and future Japanese building regulation. The Japanese are very careful to ensure that they divorce the rhetoric and representations proffered from well meaning advocates of given systems from the hard facts and the empirical evidence that determines whether those representations resonate with the evidence derived from systems in operation.
This, needless to say, takes great skill and the Japanese are very astute when it comes to determining which people or more precisely which legal and microeconomic reform experts are best qualified to determine whether a regulatory regime is endowed with regulatory elements that are worthy of adopting. The Japanese don’t shy away from consulting with international experts in their quest to get it right.
It follows that when one is fashioning, designing or redesigning building regulation, one does indeed ensure that regulations that are held up as being best practice or desirable practice regulations are indeed that. The analyses of any regulatory regime that is under consideration must be both rigorous and vigorous, and one needs to have access to those highly skilled “artisans” or knowledge tsars who can clinically and impartially apply the intellectual blow torch to the notion of whether to adopt or reject a non-indigenous regulatory concept or innovation.
It is also very important to ensure that where ostensibly enlightened approaches to building control are adopted, a piecemeal approach to adoption is not adopted. The most holistic statutes, regardless of whether they are domiciled in the building regulatory domain or any other regulatory regulatory paradigm, are often complete and comprehensively integrated law reform packages.
Further, they are often ill-suited to partial adoption – somewhat reminiscent of a jigsaw puzzle where the puzzle is only complete if every piece of the puzzle is present. If a reforming jurisdiction is selective in terms of parts of the “puzzle” it wishes to adopt, it may find that the imported regulatory element does not marry with the “host body” of regulation and this may compromise the integrity of the “host Act.”
A case in point was the introduction proportionate liability in Australia in the mid-1990s. Only two jurisdictions introduced proportionate liability with the vital complement of mandatory insurance in Australia. Yet the introduction of proportionate liability was supposed to be accompanied by mandatory insurance for all building practitioners. The net effect was that consumer protection was, in the eyes of certain critics, compromised in the States of Australia that neglected to introduce the full suite of holistic reforms. In other words, an important piece of the “holistic jigsaw puzzle” was considered by some to be left out.
Law reform is very challenging and can have a profound impact for the better when the policymakers get it right. Conversely, it can have an extremely deleterious and pernicious effect when policymakers get it wrong. The leaky building syndrome in NZ illustrates a sad state of affairs where they got it wrong; misery was visited upon a great many New Zealanders as a result of that debacle. It is axiomatic that the law reformer is burdened with immense responsibility in terms of getting it right.