Building and Development Certifiers Bill 2018
(Bills - Second Reading Debate, Legislative Assembly, Parliament House)
Private certification has been plagued by reports of defects, heritage destruction, non-compliance, poor oversight and inadequate enforcement action. Major problems have arisen from the conflict of interest inherent in the system, which allows developers and builders to select and pay the person who checks and confirms whether their development complies with requirements.
I regularly hear from constituents concerned about work endorsed by private certifiers. I hear from neighbours of new developments who have lost sunlight or their privacy because a private certifier signed off on noncompliant setbacks. I hear from home owners who have ended up with defects because the private certifier signed off on faulty or substandard work. The proliferation of exempt and complying development has made private certification, and therefore illegal building work, more widespread. As the local member, I have referred many constituents to the Building Professionals Board but constituents have rarely been satisfied with action taken. It has long been clear that the board lacks the teeth to deal with complaints and rogue operators.
I welcome the Building and Development Certifiers Bill, which is a positive step in improving the private certification system through much-needed reform to enforcement and compliance. The bill will abolish the Building Professionals Board and transfer its regulatory role to the Department of Finance, Services and Innovation while strengthening its powers to address complaints and poor performance. The bill includes a more streamlined disciplinary process for private certifiers. The "show cause" approach will replace the existing two‑stage process and make it easier to take disciplinary action against noncompliant certification work. Higher penalties for not complying with one's obligations and requirements will complement this new process and encourage better conduct. The bill attempts to address the problem of improper relationships between a private certifier and builders and developers. The notion of private influence will be introduced into the Act, making it clear that the chief role of a private certifier is to protect the public interest, with statutory objectives to set out that private certifiers have a duty to protect public health, safety and amenity. The bill puts a greater focus on private certifiers being public officials, in contrast to the role of serving developers and builders.
I welcome the new test for professional misconduct or unprofessional conduct, which is in line with the obligations on council certifiers not to accept benefits. I also welcome new bans on builder contracts that aim to influence the appointment of a particular certifier. However, if private certifiers continue to be hired and paid for by builders and developers, there will always be pressure on them to sign off on construction in order to maintain good commercial employer relations. Removing this problematic relationship would solve many of the problems with the private certification system. I understand that the Government is consulting on a rotation system of private certifiers, thereby removing the ability of developers and builders to select certifiers. I strongly support such a change. It is also vital that the department conduct regular audits of construction signed off by private certifiers to check for compliance. A monitoring system is needed in the system. Developments that pose any threat to heritage, the environment or neighbourhood amenity, for example, should never be ticked off by a private developer due to their sensitivity and therefore not be classed as complying development.
Local Government NSW states that many problems have arisen from the lack of clarity over the roles and responsibilities of private certifiers. The bill provides clarification both in strengthening definitions for certification work and providing the community with more information about private certification. The success in fixing the private certification industry and improving building compliance will depend on whether the Department of Finance, Services and Innovation is properly resourced to take on its new role in replacing the Building Professionals Board and to provide the oversight required of the industry. The board's funding should be used entirely for improving the system, including to ensure the department can audit developments signed off by private certifiers and appropriately monitor the system. While I support the bill, a lot of the detail will come with the regulations. I ask that the Government introduces draft regulations for industry consultation as quickly as possible. I commend the bill.