For some time, I have been hearing of issues with the Tasmanian Building Act. Brought into force in 2016, the act enumerates four different categories of work, based on the level of risk involved.
The act also allows for so-named "competent persons" and "owner-builders" to undertake a wider range of works in the lower-risk categories. However, the act has failed to provide clear guidance on how that work should be undertaken to maximise safety, consistency and legality.
The Building Act is supplemented by directives issued by the director of building control. These directives are for the "making of determinations for miscellaneous procedural requirements" or the "issuing of guidelines to assist in complying with the act".
What has occurred in reality are rules being made up on the run, with little scrutiny or input from those working in the industry. As a result, the operation of the act has had the perverse effect of increasing red tape by making the categories of works harder to understand.
As work becomes more difficult to undertake and riskier to complete, insurance for builders and building surveyors may fail to cover the work. Consequently, insurance becomes more expensive to obtain, especially where builders or surveyors are working to advice which is difficult to properly comply with.
This is especially relevant to professional indemnity insurance, the nature of which requires a policy-holder to mitigate all risks as much as possible. This made headlines in Launceston last year when Building Surveyor Protek closed after the company's insurance premiums rose from $25,000 to $80,000 and its excess from $5000 to $50,000. Seven people lost their jobs.
Owing to misunderstandings of the act and difficulty in knowing when permits and reports are required, much of the defective work being carried out residentially leaves homeowners with little prospect to recover damages. Residential work is being completed by "competent persons" and not necessarily registered builders. The Building Act allows this for certain jobs that are defined by the act as being "lower risk".
However, even jobs that are "lower risk" can have a significant effect on the overall quality of a home. Consequently, the only legal option for those seeking recompense for defective work is to personally sue the person who did the work - assuming they can afford a lawyer and the person being sued could actually afford a payout. A typical family who buys a residence that has had unlawful and/or unregistered work may therefore be purchasing a liability, not an asset.
The Building Act does not seem to have delivered the benefits it promised. To be transparent, I voted to pass this bill in 2016. I particularly believed that it was important that small building works could be undertaken by an owner-builder or a competent person, in order to make things easier for residential developments such as construction of a lean-to or a carport.
Over time the practical effects have become clearer, and not only have industry practitioners had difficulty adapting to the requirements of the act, non-professionals do not possess the expertise to understand what these rules actually mean. The number of determinations issued in the interim has also meant that the system of rules and regulations is now manifestly different to what it was when the act was initially passed.
In 2018, the Building Confidence report (the Shergold Weir report) examined the building industry nationwide, identifying a number of issues and made suggestions for remediation. One issue identified was the inconsistent requirements for registration for industry practitioners to operate between jurisdictions.
"Some states and territories have been reluctant to register practitioners in other jurisdictions on the basis that they believe the registration standards set by other jurisdictions are of a lower level," according to the report.
There is one case I am aware of where the Victorian Administrative Appeals Tribunal determined that conditions for registration under the Tasmanian act were so radically different to the conditions in the Victorian act that a Tasmanian practitioner was refused permission to work in Victoria - even though they were actually capable of doing the work in question. Reading between the lines, one could argue that the judiciary is making a statement about the quality of the Tasmanian act.
Practitioners I have spoken to are increasingly dissatisfied and, in some cases, are looking to get out of the industry entirely. They are working harder than ever before and are competing with unqualified practitioners who suffer minimal consequences if their project fails, as they work in an occupation (such as landscaping) which falls outside of the act.
What is clear is that the act needs to be reviewed to improve safety outcomes, provide certainty to those working in the industry and bring some degree of flexibility to lower risk jobs.
This will require meaningful consultation with those who work across this entire industry for the safest and most productive outcome for all Tasmanian building projects.
- Rosemary Armitage is an Independent MLC for Launceston.