Meetings with New Zealand MBIE Delegation Regarding Australian Approaches to Building Regulation
From left to right – Antonia Reid, Policy Director, David Hall, General Manager of Building Systems Performance, Kieth Ryan CEO Housing Industry Association Victoria, Justin Cotton Director Lovegrove & Cotton Construction Lawyers and HIA Industrial Relation and Legal Services Committee Chair, Adjunct Professor Kim Lovegrove. and Dr. Michael Warren, Manager of Systems and Markets Policy
The writer, together with members of the senior team at Lovegrove & Cotton Lawyers, recently hosted a meeting in Melbourne with senior civil servants from New Zealand’s Ministry of Business, Innovation, and Employment (MBIE).
The New Zealand delegation included David Hall, General Manager of Building Systems Performance, Antonia Reid, Policy Director, and Dr. Michael Warren, Manager of System and Markets Policy.
This meeting was part of a fact-finding mission as New Zealand considers reforms to its Building Act, aiming to gain insights from Australia’s diverse building control regimes.
The meetings fostered an exchange of information, drawing insights from various Australian regulatory approaches and how they can inform New Zealand’s reform efforts. The discussions also addressed the evolving nature of building regulation, with senior industry and public sector figures contributing to the dialogue on matters of public and industry policy in the building sector.
Australia’s Diverse Approach to Building Control
The writer advised that Australia’s approach to building control is highly fragmented, varying significantly across states and territories. He often refers to this federated system as the “eight countries of Australia” approach, emphasizing that jurisdictions like Victoria have more in common with New Zealand’s Building Act than others, such as Western Australia. Lovegrove suggested that a ‘cherry-picking’ approach, selecting best practices from different Acts of Parliament, would hold significant merit.
Both the writer and Justin Cotton, being New Zealanders and alumni of Auckland University Law School, were especially pleased to provide their insights to their fellow countrymen.
Kim Lovegrove, who is also Chair of the International Building Quality Centre (IBQC), participated in discussions alongside Keith Ryan, Chief Executive of the Housing Industry Association, and Efy Karagiannis, CEO of the Victorian Managed Insurance Authority.
The Role of the Victorian Managed Insurance Authority
Efy Karagiannis gave a very informative presentation on the VMIA, the state agency that manages all insurance for the Victorian Government. The CEO also provided a comprehensive explanation of the domestic building insurance scheme in Victoria, as the VMIA is the provider of this cover. In New Zealand, no such scheme exists, and there is no requirement by law for there to be a statutory form of residential warranty cover.
From left to right – Efy Karagiannis, CEO of the Victorian Managed Insurance Authority, David Hall, General Manager of Building Systems Performance, Antonia Reid, Policy Director, and Dr. Michael Warren, Manager of System and Markets Policy and Kim Lovegrove.
Key Discussions on Private Certification and Liability Regimes
Key topics of discussion included building systems, private certification, insurance frameworks, and the proportionate liability regime that has been in place for over three decades—areas New Zealand is currently exploring for possible reform.
Justin Cotton, soon to be re-admitted to practice in New Zealand, is Director of Lovegrove & Cotton. Tsigereda Lovegrove, the practice manager, joined the discussions, bringing expertise in construction and planning law. With over 20 years of cross-jurisdictional experience, Justin provided valuable legal insights into the regulatory challenges, strengths, and weaknesses of building regulations across the ACT, Victoria, and NSW. He provided a front-row litigator’s perspective.
Tsigereda Lovegrove extolled the benefits of mandatory mediation in the early stages of construction dispute resolution. She advised that making mediation compulsory at the outset of litigation, where both parties share the mediator’s cost on a 50/50 basis, has compelling merit.
From left to right – Tsigereda Lovegrove, Practice Manager and Construction Lawyers at Lovegrove & Cotton, Efy Karagiannis, CEO of the Victorian Managed Insurance Authority, David Hall, General Manager of Building Systems Performance, Antonia Reid, Policy Director, and Dr. Michael Warren, Manager of System and Markets Policy.
She also emphasized the value of specialist construction law lists and divisions, such as those in the Victorian Civil and Administrative Tribunal (VCAT) and the County Court. These dedicated lists provide a focused and efficient resolution pathway by concentrating bespoke judicial expertise on construction matters.
Insights from the Building Fraternity’s Perspective
Keith Ryan offered his insights from the builder’s perspective, focusing on key issues such as building contracts, private certification, home warranty cover, and the Domestic Building Contracts Act, which regulates the contracting affairs between property owners and residential builders. His contributions provided the delegation with practical knowledge of how builders navigate regulatory frameworks in Victoria.
A key takeaway from Keith was the importance of Acts of Parliament evolving over time. What worked a couple of decades ago may no longer be relevant in today’s contemporary setting. Kim Lovegrove agreed, adding that legislation must evolve to stay calibrated with changing industry dynamics and consumer expectations.
To round off the New Zealand delegation’s understanding, the writer suggested they meet with key Australian figures, including Neil Savery in Canberra, representatives from the Victorian Building Authority (VBA), the NSW Building Commission, and Mr. Dan O’Brien, head of Cladding Victoria, as well as Professor Robert Whitaker AM, Deputy Chair of the IBQC. These additional engagements provided deeper and more rounded insights into Australia’s regulatory landscape.
Importance of International Collaboration in Regulatory Frameworks
Countries can learn much from one another, and if approaches to regulation have been road-tested elsewhere, why not take advantage of that learning? Notably, in the early 1990s, the Australian Building Codes Board (in its earlier form as the Australian Uniform Building Regulations Coordinating Council) modeled the BCA 1996 on New Zealand’s Building Code, which was one of the first performance-based codes in the world. Victoria’s 10-year liability limitation period was an import from France, and it is the writer’s understanding that the NZ Building Practitioners Board was, in part, modeled along the lines of the previous practitioners board incarnation in Victoria.
The interactions underscored the importance of international collaboration and shared expertise in shaping effective regulatory frameworks for the future. This approach is very much the raison d’être of the IBQC.
Lovegrove & Cotton Will Soon Be Expanding into New Zealand
Adjunct Professor Kim Lovegrove is admitted to practice in New Zealand through the New Zealand arm of the firm, and Justin Cotton will shortly be re-admitted to practice in New Zealand. The firm will expand into New Zealand’s construction law sector, further solidifying its presence in the region.
