Articles

By Kim Lovegrove FAIB of Lovegrove & Cotton – Construction and Planning Lawyers

In recent years, the Japanese government had decided to reform its Building Act because of public disquiet concerning a number of buildings with compromised engineering design.

Over the past decade, those charged with reforming building law in the antipodes have tended to rely upon internal resources – civil servants employed within the arm of government that is tasked with reforming a Building Act. There is reluctance to resource skill sets from outside the silo of the department for reasons that I am not privy to.

The Japanese go about the task in a different way. From what I have observed through my participation in this reform, those charged with carriage of a law reform initiative tend not to be civil servants sourced from the department. Rather, the department identifies a group of external experts that come under the stewardship of an independent chair, someone who is held in the highest esteem.

The reform team has a mandate to review the existing legislation with the view to identifying weaknesses and strengths so that ultimately a set of law reform recommendations can materialise.  The first phase of such an endeavour involves extensive and comprehensive international comparative analyses where the researchers study other countries that show case best practice building regulation.

The purpose of the exercise is to identify whether other countries have developed superior building regulatory regimes or have come up with regulatory innovations that produce a stronger utilitarian dividend within the confines of the as-built product. Travel is involved and members of the reform fly abroad in order to meet with and extrapolate best practice know how. As the Japanese are very thorough and careful people, they appear to prefer to see the whites of the eyes when grappling with the intricacies of the inner workings and machinations of regulation, its implementation, operation and dividends for the building industry and the public; be they positive or negative dividends. It follows that they do not shy away from getting into a plane so that they can meet with civil servants, information tsars and experts in other jurisdictions.

Once the offshore comparative analysis phase ends, the research and interview extrapolations are synthesised and analysed.  The reform team then identifies a small sampling of offshore experts – experts that have an intimate understanding of their own building regulations and their attendant benefits and limitations – and invites them over to participate in a “think tank” that runs for a number of days.

Having participated in two such think tanks, I can attest to the fact that they can be intellectually gruelling affairs. The invitees are subjected to a regime of very intensive and rigorous questioning that is fashioned to drill into not only the finer details of regulation, but more importantly its impact upon the community and the built environment. The questioning regime is akin to being cross examined by senior counsel in that a skilled cross examiner is obsessed with uncovering every stone, leaving nothing unanswered, arriving at the truth rather than the hyperbole or the mask that hides the actual facts. But it is very effective because the reform team gets the complete picture devoid of any propaganda, self-justification or misconceived aggrandisement of a given regime under consideration.

I remember being grilled about the connotations of the word probity and what probity meant to building control.  My Japanese colleagues were very preoccupied with probity considerations because they felt a sound probity regime was a critical element of best practice building regulation. It was interesting to note that when I said that one of the real shortcomings of Australia building regulations was the lack of a mandatory auditing regime where every building surveyor would be audited at least once a year, they said “we get that, we legislated this requirement some time ago.”

The final phase of the law reform team is to generate a report on the findings of the investigation along with recommendations, be they to reform regulation or to maintain the status quo.

So like the Mitsubishi advertisement used to say, “please consider.” Australian and NZ policy makers may wish to consider an alternative approach to law reform which simply summarised would involve:

• Some outsourcing of research, analysis and investigation
• An appropriately chosen luminary to serve as chair
• Local and offshore comparative analysis
• Think tanking
• A rigorous fact-finding investigatory approach that is preoccupied with identifying the quantifiable impact of enacted reforms upon the public and the built environment.

Hopefully this is food for thought.