The Australian Capital Territory government has lashed back at accusations from the property lobby that its new bill to stop shoddy construction work in the territory – inspired at least in part by the work of New South Wales Building Commissioner David Chandler – was rushed and that there was a lack of consultation.
After last week’s news that the ACT was heading down the route of improving protection for consumers in the wake of failures of quality and accountability for poor construction work – leading to sometimes dangerous outcomes – the ACT government has finally gone public in its defence of its proposed legislation.
The Fifth Estate’s article last week on the ACT’s controversial proposed legislation that targets shonky developers was roundly criticised by property and building industry in The Fifth Estate last week. The Property Developers Bill 2023, introduced to the Legislative Assembly on Thursday, means that developers who fall foul of proposed new laws in the ACT will be personally liable for defects, including actions taken on their behalf by builders.
In response to requests for comment last week ahead of publication, the Sustainable Building and Construction Minister Rebecca Vassarotti, who introduced the bill, has now voiced her rejection of multiple criticisms around the bill.
The Property Council ACT’s executive director, Shane Martin, told The Fifth Estate that the bill was too rushed, that industry stakeholders were not consulted face-to-face until August this year, and that the minister should have started the consultation process in January to meet her promised deadline.
The article noted that the ACT government website provided scant information regarding the new bill. The minister’s office has now elaborated on details and these are included below.
Was the proposed legislation a rush job?
According to Martin last week, concepts around the bill were first released in 2018 in a discussion paper, but there was no opportunity for submissions until the end of 2022. He claimed that many stakeholders in the industry, including himself, were not given a voice until late August.
“Consultation started in late August, where we sat in a room and the government was like, ‘this is what we are thinking’. There’s been no independent economic assessment done, no looking at the potential impact.”
In response, a spokesperson for Vassarotti said, “The ACT government has undertaken extensive engagement over the last 12 months with key community and industry stakeholders to inform the policy development and drafting of the Property Developers Bill, including the ACT Property Council.
“EPSDD [Environment, Planning and Sustainable Development Directorate] has been engaged with the Property Council through meetings, phone calls, emails and letters since December 2022.
Who else will be held accountable?
Master Builders Association of ACT chief executive Michael Hopkins noted that as the state’s building regulatory system was the weakest in the country when it comes to holding trade contractors accountable, designers and architects were often left out of the accountability chain, leaving developers and builders responsible for the failures of others.
In response, Vassarotti’s spokesperson replied: “The ACT government will consider future reforms for the appropriate regulation of building designers and architects, noting recommendations from the Building Confidence Report on building practitioners and a national registration framework. The ACT will carefully consider the NSW Design and Building Practitioners Act 2020 as a relevant example.
“Earlier in 2023, the ACT government introduced a registration scheme for professional engineers. Future professional and trade licensing and/or registration is being considered in the broader context of the building regulatory system.”
How will developers be held accountable?
“The Property Developers Bill requires a property developer licence to be held for relevant planning and building applications to be lodged, or to enter into, or advertise, off-the-plan contracts,” said Vassarotti’s spokesperson.
“A planning or building application will not be able to be lodged without a licence. It is an offence to advertise an off-the-plan contract without a licence. A stop work order and other regulatory powers can be exercised for unlicensed property developers.”
NSW has a better deterrent
Recently, NSW Building Commissioner David Chandler OAM introduced similar legislation, where NSW builders are forced to fix defects before finishing a new home. According to Martin, the NSW model f is worth considering, and the Property Developers Bill should act “in line with other states and territories”.
Vassarotti’s spokesperson replied that the new ACT bill was created after considering recent reforms in other jurisdictions, which included the NSW reforms in the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020.
“The NSW RAB Act allows regulatory orders to be issued against property developers as well as principal builders, and these powers have been reflected in the ACT Property Developers Bill.
“The ACT government has also carefully reviewed other market-led initiatives in NSW, such as iCIRT (independent construction industry rating tool) and decennial liability insurance [covering potential collapse of a building after completion] and incorporated these into the licensing and regulation scheme under the ACT Property Developers Bill.”
– With Tina Perinotto