In 2018, Australia’s regulatory mechanisms for building control and compliance remain fragmented by the federated landscape of individual state and territory jurisdictions. Sure, our National Construction Code (NCC) is national, but it is confined to technical provisions for construction of new buildings. The process for approval of such buildings to build and occupy, the roles and responsibilities of practitioners involved, the enforcement of compliance, requirements for retrospective upgrades and expectations for routine servicing and maintenance are anything but national, however.
Geographically Australia is a big country. It’s a continent where the tyranny of distance meant that at the dawn of states and territories, individual controls for regulating construction were more necessity than mere parochialism.
We still are a big country, and although our population is pushing 25 million, we are more connected than ever and the capital cities don’t seem as far apart as they once did. Yet our population remains tiny by global standards, given the land mass we call home.
This 21st Century reality means that when it comes to building control, individuality of states and territories is redundant. Our continued silo approach directly impacts compliance, productivity and economic prosperity, consumer confidence and safety. It does not matter one iota what we amend or insert into the NCC or Australian Standards if these are not consistently implemented, or not implemented at all. The combustible cladding issue is a perfect example; the NCC has appropriately prohibited use of combustible cladding for decades, but a lack of vigilance in relation to education, compliance and enforcement is costing us all dearly now, and accountability seems difficult, rather than swift.
Not that this is news to those working in the industry long term. We’ve been grappling with this since the post-war construction boom. In the mid-1980s through the early 1990s, the work of the Australian Uniform Building Regulations Co-ordinating Council (AUBRCC) delivered us the Building Code of Australia. As a sign of broad acceptance, the state and territory variations to this technical code have continued to diminish ever since. However, for a national code to be implemented successfully, national administrative provisions are required. Any progress on this front has been extremely limited.
Following a recent spate of high profile fire incidents at home and abroad regarding a single building component, and numerous other issues emerging that indicate systemic regulatory failures, public confidence is waning. As a result, in mid-2017 political attention escalated.
The Building Ministers’ Forum (BMF) commissioned Professor Peter Shergold AC and Ms Bronwyn Weir to undertake an assessment of the effectiveness of compliance and enforcement systems for the building and construction industry across Australia.
This appointment coincided with the UK government’s appointment of Dame Judith Hackitt following the Grenfell tragedy to explore the health and appropriateness of their regulatory system. The most damning of Hackitt’s findings was that in the UK “the current regulatory system for ensuring fire safety in high-rise and complex buildings is not fit for purpose” and “there is a need for significant improvement in the current system in a number of areas. These relate to matters of: regulation and guidance; roles and responsibilities; competence; process, compliance and enforcement; residents’ voice and raising concerns; and quality assurance and products”.
Hackitt’s final report found amongst a number of key recommendations that “…if there is to be a stronger focus on creating and maintaining safe buildings. It must strengthen regulatory oversight to create both positive incentives to comply with building safety requirements and to effectively deter non-compliance.”
Shergold and Weir, meanwhile, made 24 recommendations in their report released in February 2018. These recommendations can be grouped into a handful of themes. Unsurprisingly, these themes echo the findings of Dame Judith.
What are the roles, responsibilities and expectations of individuals doing the work, and how are they consistently recognised?
Compliance Culture & Enforcement
Regulators need to be proactive in generating a compliance culture and empowering practitioners to deliver on this, whilst implementing effective enforcement regimes and collecting and exchanging relevant data to inform decision making.
Appropriate documentation of design and expectations for ongoing lifecycle requirements is critical. This documentation must be available and respected by appropriate stakeholders and maintained for future reference.
The philosophical concept of performance-based design remains appropriate and should continue to be pursued, but the process for approval and documentation must be more consistent.
Independent Inspection & Review
The privatisation of building approval can only continue if supported by independent inspection and review.
Product Safety & Consistent Terminology
We need to improve confidence and vigilance regarding product safety. Surely we can also agree on some consistent national terminology.
So there you have it. Our national technical code is a great achievement, but publishing nationally consistent technical provisions doesn’t mean these will actually be implemented without nationally consistent administrative provisions that prescribe expected process. So why don’t we have this already? When I talk to each jurisdiction individually as part of my role at FPA Australia, a number of things are common in terms of the attitude to change:
- We already have requirements in place; why do you want change and what’s in it for the government?
- Who stands to benefit versus who misses out?
- Yes, we understand other jurisdictions do it differently, but this is [insert jurisdiction here].
- We don’t have the resources.
- We need direction from the Minister to investigate that.
- Industry needs to improve.
I readily accept that it’s always important for industry to strive for better outcomes and that one of the key roles of peak industry bodies like FPA Australia and our counterparts is to lead and promote this. Regulation is not the only solution and de-regulation strategies have been welcomed to cut unnecessary red tape.
But some red tape, the right red tape, is necessary. It binds us together and builds confidence in technical and economic outcomes. Deregulation has a limit. My current observation is that there is unprecedented enthusiasm and agreement from industry bodies in the construction space to support the kind of change outlined by Shergold and Weir. And it’s true that there is much more industry can do, but we cannot do it alone.
Reflecting back to the current UK climate post-Grenfell, the only resistance or disappointment from industry to Hackitt’s final report was that it didn’t go far enough. There is consistency in the reported reactions from stakeholders that change is necessary, and in fact industry had been advocating for this long before the Grenfell tragedy.
If there is this sense of united industry desire for improvement, which I strongly believe there is, who are the blockers? I don’t think it’s the consumers paying to remedy non-compliant or defective work, or the practitioners worried about their insurance. I don’t think it’s the community who expect that safety and compliance is a priority. It’s certainly not the individuals in industry desperately trying to comply whilst facing a commercial avalanche of other individuals who aren’t. Is it the investors seeking quick bang for buck before pheonixing their company of responsibility and moving on? How much influence do they have?
What I do know is that state and territory governments have an opportunity, perhaps even a responsibility, to confront the lack of consistency in our administrative provisions.
There should be no sense that conceding to change is an admission of failure. Jurisdictions should instead have pride that they championed change. Ignoring the problems by putting their head in the sand to do nothing is failure.
It was recently mentioned to me that “sunlight is the best disinfectant”. Shergold-Weir’s report gives us the best opportunity in a generation to start shining a light on the areas that need to change. Whatever the costs are in terms of work required by state and territory governments, these can be reduced by sharing the load with a supportive industry and by working with the federal government to finish the good work that started with the BCA.
As referenced in the Shergold-Weir report, FPA Australia has stated that “If there was one area of focus that could be immediately sought to pursue improvement, it should be seeking a commitment to develop a model NCC Administrative Code to harmonise expectations regarding the aspects identified in the terms of reference for this assessment”. We will continue to pursue this vision with government and industry stakeholders alike and challenge the BMF to seek a national process, not just a token acknowledgement from each jurisdiction that they will do some things independently.
To effect this, at the most recent BMF meeting we and others in the industry presented a combined proposal on how to address the next steps following the Shergold-Weir report’s recommendations, including regular meetings between industry and the BMF, and critically the establishment of a new taskforce between government and industry to oversee nationally-consistent regulatory reforms.
The proposed taskforce is intended to draw together government and industry to manage the development of a model administrative code for the National Construction Code (NCC) to harmonise requirements and compliance with the NCC across all states and territories wherever possible.
We’re pleased to report that the BMF was receptive to the proposal, and further discussion along these lines is expected.
It’s an important start. Both government and industry have a shared responsibility to provide leadership and restore confidence in the building and construction industry, and we can do that through national consistency.
For more information, go to www.fpaa.com.au