Company: Productivity Commission

5

Our Ref:	04/ 18161
Contact:	Ain Kuru Telephone (07) 323 54123
Facsimile:	(07) 3237 1248
Email:	
2 2 0 C T 2004
Building Productivity
Commission PO Box 80
BELCONNEN ACT 2616
Dear Sir/Madam

I refer to the recently released draft Research report on the Reform of Building Regulation.

The Queensland Government has not had sufficient time to consider the draft Report and its recommendations. Therefore this response cannot be considered as an endorsement or otherwise of the draft Report.

Attached are Departmental comments on the recommendations based on the Queensland Government's previous submission. In addition to these comments, the Department believes the Commission needs to give further consideration to the following issues:

1.	The role of the Board in dealing with complex policy issues outside its core responsibility of building safety; and

2. How to speed up the BCA amendment process, with further examination of the relationship between the ABCB and the States and Territories

Should you have any further enquiries please contact Mr Ain Kuru, General Manager Building Codes Queensland on telephone number (07) 32354123.

Yours sincerely
DR TED CAMPBELL Director-General

COMMENTS ON SPECIFIC RECOMMENDATIONS

5.1 	The objectives of the ABCB (or its replacement) should be clarified in order to remove unnecessary conflict, overlap and imprecision.

The safety of people in and around buildings is a primary responsibility of the Board. This responsibility includes the development of building safety standards dealing with issues such as structural sufficiency, fall prevention and fire safety.

The Board also plays a key role in implementing other government policy objectives where they are relevant to the BCA. Examples include access, amenity and sustainability. The Board does this by ensuring that standards designed to protect public safety, also implement other relevant policy objectives. Therefore the proposed objectives need further clarification to address what are primary (core) and secondary responsibilities of the Board.

The primary objective of the Board should be to protect the safety of people in and around buildings by establishing cost effective building codes and standards.

The secondary objective of the Board should be to ensure building codes and standards are consistent with other government policy objectives relating to matters such as public health, amenity and the environment.

It is also noted that further meaning needs to be given to amenity if it is to remain as a primary objective. Amenity is subjective, as community expectations of appropriate standards will vary between major urban, regional, rural and indigenous communities. For example, it may not be necessary to apply sound insulation standards for Class 2 buildings outside major urban areas. Similarly, indigenous communities may have different expectations to urban communities.

5.4 	The BCA and related regulations should require that buildings continue to meet the health and safety requirements of the BCA throughout their life, irrespective of whether they were constructed using alternative solutions or deemed-to-satisfy provisions.

This is a matter for the State and Territory laws. Under Queensland law, it is an offence for a person to contravene a development approval or condition.

6.6 	The ABCB (or its replacement) should set up a rigorous framework to assess whether it is appropriate to include any additional mandatory requirements in relation to environmental objectives in the BCA.

The Board has already agreed to a program to improve the environmental performance of buildings. However, as noted in 5.1 above, this should be addressed within the context of a broader policy framework for sustainability.

2
6.9 	The future work agenda for the ABCB (or its replacement) should include an examination of ways to reduce the scope for the national consistency objective of building regulation to be eroded inappropriately by Local Governments through their planning approval processes. Avenues for this include:
•	the possibility of Local Governments being required to seek prior approval from the relevant State Government to apply building requirements that are inconsistent with the BCA;
•	these requirements should be assessed as to whether net benefits would accrue.
To assist the design of such a system, the ABCB (or its replacement), in consultation with key stakeholders, should examine the possibility of defining a clear delineation between those issues to be addressed by planning regulation and those issues to be addressed by building regulation.

This is a matter for the State and Territory laws. Under Queensland law, a planning scheme cannot override the BCA.

As noted in the Queensland Government submission, if the scope of the BCA is to expand to include for example environmental issues, then the potential for conflict with planning schemes and the growth of a more complex regulatory environment will increase with demands for unique local solutions.

If conflict with planning instruments is to be avoided, consideration needs to be given to using mechanisms to allow, in defined circumstances, local variations to be made to the BCA, or cross-references to higher standards in planning instruments. This would allow communities to introduce higher building standards in response to local issues, yet addresses building industry concerns about complexity, by ensuring a consistent and uniform approach to standard setting. For example, a local government may wish to introduce additional building standards which provide noise attenuation for residential units in an entertainment precinct.

A mechanism already exists in the BCA to deal with development in bushfire prone areas. The local government declares in its planning scheme when an area has a high risk of bushfire. The BCA then implements the relevant standards for development in that area.

This would assist in delineating between planning and building issues and follow the relationship established between the BCA and Australian Standards. The BCA advises what is required and Australian Standards how to do it. The planning scheme could then advise where the provisions should be applied.

3
The Queensland Development Code, referred to in the Government's submission, includes Statewide and model standards for building issues relevant to Queensland. Local governments can adopt the model standards using their planning scheme, however the assessment is undertaken as part of the building application rather than the planning scheme.

7.1 	The ABCB (or its replacement) should work to facilitate a national template for home building contracts.

In 2000, the Domestic Building Contracts Act 2000 was introduced. This legislation establishes extensive requirements governing, in part, terms of payment, cooling-off periods and restrictions providing for greater certainty of contract price. The legislation also establishes statutory warranties relating to issues such as standards of work, carrying out work with reasonable diligence and adherence to plans and specifications.

The Domestic Building Contracts Act 2000 was drafted after detailed consideration of the Victorian model as encapsulated in the Victorian Domestic Building Contracts Act 1995. The Acts are complementary in nature sharing a wide range of provisions.

Much of the preliminary work required for developing a national template for domestic building contracts has been addressed in the development of Queensland's Domestic Building Contracts Act 2000. The legislation will prove of substantial assistance to the Australian Building Codes Board should it proceed with the development of a national template for home building contracts.

8.5 	The ABCB (or its replacement), as a high priority, should continue to work towards maintaining and updating the core technical requirements in the BCA.

See comments on 5.1.

8.6 	The ABCB's cost recovery arrangements should be amended to be made consistent with the Australian Government's cost recovery guidelines. The revised IGA, when presenting future funding for building regulation reform, should be structured so as to provide sufficient funding for the reform agenda and to enable a minimum level of access to the BCA, free of charge.

As previously advised in the Queensland submission, the cost of accessing the BCA serves as a disincentive for builders, and potentially reduces compliance levels and the application of innovative performance solutions.

4
Legislation makes the building owner and/or end user responsible for compliance with the BCA, which is difficult to access. Hence, owners are subject to expert opinion of whether they comply or not. Another aspect of the problem is that an assessment may hold some significant implications for an owner eg cost, siting or the like, and therefore many owners/end users expect to access the BCA.

In addition, because the BCA is increasingly dealing with a broader range of policy issues, the public also expect to be able to access it free of charge through government offices and on-line. Greater access could also improve public scrutiny of the BCA and therefore transparency.

While recent changes to the format, on-line accessibility and marketing have improved industry access. For example, publishing the BCA in modules (e.g. glazing, termite control), may improve access by the industry and particular subcontractors. In addition, the current review of the BCA should ensure the structure, presentation and language in the BCA is accessible to all potential users. Similarly, the reach of current education programs on the BCA to the small builder and manufacturing sector appears limited.

However further work is necessary to identify alternative funding sources and strategies aimed at improving access to the BCA before compliance with the cost recovery guidelines can be resolved.

9.1	 The ABCB (or its replacement) should enhance its BCA awareness campaign, including investigating opportunities for further partnerships with industry in the provision of training.

The development of a user guide, or a series of guides, is supported. However, rather than a voluminous, albeit plain English, guide such as the South Australian Housing Code, it is suggested that the BCA itself should be progressively converted to plain English. At the same time the ABCB should consider preparing and disseminating Facts Sheets or User Information Pamphlet's on the various technical and regulatory aspects of the BCA that summarise key points and provide directions to the BCA and other recognised documents. These documents should maximise the use of diagrammatical presentation, include short statements of key facts, summarise roles and responsibilities of parties involved in the building process and provide examples of building types. They could be produced progressively according to an established priority order and made available via the web sites of the ABCB, State building control agencies and industry organisations.

10.1 There should be a recommitment by governments, in a revised IGA, to the objective of consistency across jurisdictions for building regulation. State and Territory Governments should ensure that BCA amendments determined by the ABCB (or its replacement) are automatically referenced in State and Territory legislation and that jurisdictional variations and additions are minimised.

While this could be feasible for core public safety issues, many of the current issues involve broader policy issues such as access for people with disabilities and the environment. As these impact significantly on other policy initiatives and programs at the State level, it may not be appropriate for such changes to be automatically referenced in the BCA.

11.2 The objectives of the ABCB (or its replacement) should be amended to: Proposed Objective 1
Establish building codes and standards that are the minimum necessary to address efficiently relevant health, safety, amenity and environmental concerns.
In determining the area of regulation and the level of the requirements, the Board should ensure that:
•	there is a rigorously tested rationale for the regulation;
•	the regulation would generate benefits to the community greater than the costs (i.e. net benefits);
•	there is no regulatory or non-regulatory alternative (whether available to the Board or not) that would generate higher net benefits.

Proposed Objective 2
Ensure that, to the extent practicable, mandatory requirements are:
•	consistent across the States and Territories
•	performance based
•	based on international standards
•	expressed in plain language. Proposed Objective 3
Identify and seek implementation of improvements to compliance and enforcement systems for building regulation.

6
Proposed Objective 4
Identify and seek to implement ways to reduce reliance on regulation by exploring alternative mechanisms for delivering outcomes, including:
•	non-mandatory guidelines
•	training to increase skill levels of building practitioners and certifiers.

See comments at 5.1.

11.3 The ABCB's name should be changed to the Australian Building Regulation Board (ABRB), to better reflect its proposed wider responsibilities and future work agenda.

This could be misleading as States and Territories are responsible for regulation.

In addition, there does not seem to be any good reason for the name change. One of the complaints of industry is the rate of change, and changes that are simply cosmetic may reinforce a view that changes are not always necessary or in the public interest.

11.4 A new Intergovernmental Agreement should be negotiated by all nine
governments, so as to implement many of this study's recommendations:
•	establish the Australian Building Regulation Board (ABRB) in
place of the ABCB
•	clarify the ABRB's mission statement and objectives
•	agree to shared funding and removal of charges for the BCA
•	re-confirm the commitment to national consistency
•	strengthen the use of regulatory impact statements to enhance rigour for mandatory regulations
•	outline the future work program, as proposed.

See previous comments.

Other

The Productivity Commission also sought further comment on training and education.

The report focuses on the issue of whether existing training is adequate and applicable to current work practices. However the effectiveness of training may also depend on nature of regulation which "relies" on that training. For example, the Licence Class Review completed and implemented by the Queensland Building Services Authority in 2003 sought to align the scopes of work which are allowable under licences with training outcomes. Thus, builders licences were restructured (low rise, medium rise and open licence) to achieve direct alignment with Levels 4, 5 and 6 of the Australian Qualifications Framework.

This process has also been extended to licences for trade contractor classes. Apart from certain specialised licences (such as fire protection and design licences), all trade contractor licences are directly aligned with Level 3 qualifications drawn from the

7
Australian Qualifications Framework. In this way, training outcomes can be identified and to structure scopes of work allowable under licences with these outcomes. This approach is an effective means by which State regulators are able to give effect to the National Training Agenda and should be taken into account in consideration of the effectiveness of the current training agenda.