The Need for Cross-jurisdictional Regulatory Harmonisation
By Kim Lovegrove FAIB
What is remarkable about Trans-Tasman neighbours NZ and the 8 jurisdictions of Australia is the lack of regulatory harmonisation in the building industry. This impacts upon skills portability, construction efficiency and seamless migration of construction material and supplies. Trade barriers are one thing, regulatory barriers are another and it is naive to consider NZ any more remote from the likes of Victoria for instance than NSW in terms of building regulatory common denominators. There are more similarities apparent between the NZ Building Act and the Victorian and Northern Territory Building Acts than there are between those two Acts and the Environmental Planning and Assessment Act of NSW, which is quite remarkable when you think about it.
When it comes around to benchmarking the potpourri of Antipodian Building Acts from a consumer protection point of view, the recently maligned Victorian Building Act still measures up pretty well on a comparative analyses point of view. Why? Well save for the NT the Victorian Act is the only Act that requires all building practitioners to be registered and insured. Only this week I was on the blower with an Auckland colleague who was asking whether we could help out a draftsperson being sued down South who was implicated in multi defendant legal proceedings. The poor devil, I was told, wasn’t insured and couldn’t fund his defence, so he was having to run his own case. I said that he was in an invidious position to put it mildly. This would not be the case in Victoria because designers have to be insured, so he would have been indemnified, his legal fees would have been picked up by the insurer and the plaintiff would not have a man of straw defendant to contend with. Pity the poor Territorial Authorities in NZ where “TAs” are still being bludgeoned by the operation of that vexed doctrine of joint and several liability. In NZ unlike Australia solvent defendants are still by law required to pick up the liability of impecunious co-defendants which of course is a considerable burden on local government and the rate paying consumer. Mind you any jurisdiction should be loath to introduce proportionate liability unless compulsory insurance is mandated and jurisdictions like NSW have not done this. So we live in hope that Antipodian cross border neighbours can find a way to increase regulatory harmonisation because the combined population of 27 odd million can ill afford the luxury of conflicting Acts of parliament.
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© Lovegrove Solicitors 2013