Huge Efforts to Raise Construction Practices and Standards

Significant effort is underway to improve standards and practices within Australia’s building sector, according to the co-author of a 2018 report which is widely seen as a blueprint for reform.

Speaking during an online session hosted by the Australian Institute of Architects, construction lawyer Bronwyn Weir said that little happened for more than a year after the final copy of the Building Confidence report which she prepared along with Professor Peter Shergold was delivered to the Building Ministers Forum (BMF) in February 2018 and published two months later.

Amid pressure from industry and media attention following debacles at Opal Tower and Mascot Tower however, action commenced in earnest after the BMF agreed in July 2019 to adopt a national approach toward implementation of the report’s recommendations.

As part of that agreement, an implementation team was established within the Australian Building Codes Board (ABCB) to develop and report on a national framework for the for the consistent implementation of the recommendations.

Since then, Weir says progress has been made on many fronts.

National Level Action

Federally, the aforementioned implementation team sits within the Commonwealth Department of Industry and Resources and is being led by building surveyor and construction regulation specialist Matt McDonald.

This team is supported by a six-member expert panel (of which Weir is one) which provides expert advice along with a fifteen-member industry leaders group made up of members from industry associations.

The team has made progress in several areas.

• On 1 June 2020, an amendment to the National Construction Code (NCC) came into force which sets out a process to be followed when creating and documenting performance solutions.
• A large volume of supporting material is now available to help practitioners to understand and apply the NCC.
• In March, a consultation paper was released in respect of a model code of conduct for building surveyors. Publication of the final model code is expected shortly.
• On June 26, the team put out a discussion paper for a national framework for the registration of building practitioners who are involved in the design, construction or approval of buildings. Described by Weir as an ‘impressive document’, this sets out specific categories of practitioner for which registration should be required, the types of work for which registration in specific practitioner categories should be required and minimum qualification and experience which should be required for each practitioner category. The aim is to establish minimum requirements for practitioner categories and classes of practitioner within each category. States/territories will be able to use this model in order to benchmark the adequacy or otherwise of their own accreditation regimes.
• On regulatory enforcement of building regulations, a survey on audit reporting by regulators went out recently with the aim of identifying how to help states and territories to adopt an auditing strategy for commercial buildings.
• On the much-publicised issue of non-conforming products, work is progressing toward a framework for product safety. Weir has seen some impressive documents which are not yet in the public domain but are being circulated through other consultation avenues. These deal with issues such as how a product safety framework should work, supply chain laws, the CodeMark scheme and consideration of a national regulator for product safety.
• A National specification for the content of building manuals has been produced by Engineers Australia and Strata Communities Australia which deals with information about the building’s construction that should be provided to owners upon the building’s completion via an owner’s manual.
• A national data-sharing framework has been released which deals with information that building regulators should collect and how this might form the development of the Code and other regulatory intelligence assessments.

Since powers in respect of building regulation remain with states and territories, how if at all these frameworks and models will be adopted within state/territory regulation will be decided by each jurisdiction.

Here, Weir says approaches could differ.

Take, for instance, the framework for mandatory registration of building professionals. Queensland already has a comprehensive registration regime in place and may wish to simply retain this as is. Western Australia, by contrast, may implement the framework over an extended period. Other state/territories may adopt a version of the model with their own modifications.

State/Territory Action

At the state/territory level, the biggest mover over the past twelve months has been New South Wales, which appointed David Chandler as Building Commissioner in August last year who is driving a six-pillar program of reform.

The Design Building Practitioners Act 2020 requires that designs for certain types of building be signed off by registered designers and that registered builders declare that the final built form complies with the design. The Act also enable consumers to take legal action in relation to defects where practitioners fail to exercise reasonable care in the performance of their work.

As well, Residential Apartment Buildings (Enforcement Powers) Act will enable the Building Commissioner to prevent the issue of Occupation Certificates where the construction of a building is unsatisfactory.

Parliamentary inquiries have occurred in in respect of the regulation of building standards, building quality and building disputes along with a bill for the registration of professional engineers.

Finally, on 1 July 2020, new regulations came into force under the Building and Development Certifiers Act which imposed requirements upon building certifiers including in respect of registration, insurance, conflict of interest and other matters.

In Victoria, the primary focus has been around cladding rectification and enforcement of building regulation.

On cladding, a new body known as Cladding Safety Victoria sits within the Victorian Building Authority (VBBA) and is overseeing a $600 million program to rectify privately owned buildings which have combustible cladding.

On enforcement, the VBA is now conducting site inspections for 10 percent of building permits.

The state has also undertaken several measures which are not directly related to the Building Confidence report. This includes the registration of trades and the appointment of a new state building surveyor and principal engineer.

Beyond this, broader reforms are likely to arise out of an expert panel review announced last December to review the state’s building systems.

In Queensland, the state already had what is regarded as a robust regime with a well-regarded regulator in the Queensland Building and Construction Commission.

As well, the state already had a reform process under way prior to the BCR through the 10-point Queensland Building Plan released in 2017.

Two key areas of action relate to building product compliance and protection of subcontractor payments.

On the former issue, legislation introduced in 2017 imposed a duty of care on participants throughout the product supply chain to take reasonable action to prevent the use of products which are unsafe or non-compliant with building regulations.

On subcontractor protection, the Building Industry Fairness (Security of Payment Ac) Act 2017 mandated the use of project bank accounts for particular building contracts, granted an entitlement to progress payments, established procedures for making and responding to project claims, and established a statutory charge in favour of subcontractors for payment of work.

Whilst little has happened in in Western Australia, the state has issued two consultation papers regarding policy direction which relate to the private certification of single residential buildings and approval processes for commercial buildings. A further paper dealing with registration is under development.

One issue being considered is a move enable private certifiers to issue occupancy permits on Class 1 and 10 buildings. As things stand, permits in WA are issued by local government certifiers.

Challenges Ahead

Still, Weir says challenges remain.

Given the economic importance of the building sector along with the amount of income it produces for governments at all levels (stamp duty, income tax etc.), some governments may be reluctant to push too hard on enforcement for fear of jeopardising building activity levels. At any rate, government is the largest single purchaser of construction services. Many problems with contracts and resource limitations, some industry participants say, occur on government projects. Global supply chains and international workforces pose extra challenges as does the need to make better use of data to inform decisions. As offsite construction becomes more prevalent, this will need to be incorporated into the regulatory system. Reforms to promote innovation and flexibility will need to be balanced against the need for oversight of building activity. Courses and education provided must be adequate to equip young professionals coming through. Whilst much has been done to reduce phoenixing, dealing with this remains an ongoing issue.

To help meet these challenges, Weir says industry needs to help through consulting with government, co-regulation through industry accreditation schemes, codes of practice and CPD delivery and through holding governments to account for implementation of promised reforms.

Whilst decisions regarding BCR implementation remain with governments, Weir says industry bodies should apply pressure to ensure that reforms which are implemented deliver on promised responses to BCR implementation.

“I’ve always taken the view that it is still very much a matter for governments as to what they implement from the BCR and that they have the ultimate decision,” Weir said.

“But what I would like to see is that if they say they are going to implement or if they say one of our recommendations have been implemented then we really need to make sure that that is what has happened and that it is not just fudging the numbers to be able to say they have met BCR when in fact the reforms don’t do it or there are still gaps in reforms.

“Industry has an important role to play in that accountability for governments.”