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Residential Building (Miscellaneous Consumer Protection Amendments) Bill 2022

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 28 March 2023

Tags: Housing, Legislation

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I want to make some comments from the Greens on this very important and overdue reform. In the Chamber are two people who have been severely and very painfully affected by the circumstances which gave rise to this: Belle, Adriane and Gillian Creamer. Their story has been much publicised, as have those of other Tasmanians. The member for Lyons went through some of those. They are incredibly painful, because building is stressful.

From the consumer's point of view, building is really stressful. It is actually stressful for other parties, particularly people who are working as builders on a small scale, but just speaking from the owner's point of view, it is very stressful, full stop, end of story. Money, decisions, timing of the build, putting the rest of your life on hold, having all of your life's desires and needs and expectations to be fulfilled by a person you have generally never met before. You are trusting a lot. You are handing over the keys to your life, essentially. The person who is the builder has the responsibility of taking your desires and needs and goodwill and your chequebook, and going off and doing the work that you have asked them to do.

Let us face it, most people who contract a builder - particularly somebody who is not in a very large firm - do not really have the skills to assess the quality of the builder, or their previous work. There is an obvious bias that occurs if you ask a builder to provide you with some information about their building quality, their skills. They will, if they have had previous problems, cherry-pick the least problematic previous claims, or leave people out altogether.

You are really reliant on a person self-deciding their own qualities and ability. Unless you have a lot of skills and time, you really cannot do very much about that. There is a lot of faith involved, a lot of money involved - and those costs go up all the time.

Although we did, in the early stages of the COVID-19 pandemic, support the Government's financial incentives for people to advance housing builds in Tasmania, we have for years now been concerned at the impact of this Government on overheating the housing market. An overheated housing market means that people who are seeking to have a home built are utterly at the mercy of their builders. The builders themselves, let us face it, are utterly at the mercy of the supply chain.

There is inherent power imbalance between builders and consumers. It can also go the other way, absolutely, from consumers to builders. People might get a house built and then are overly onerous and attentive to things which are reasonably outside a builder's control and have already been completed to what the average person might consider a good job. It is a very difficult one to call and is obviously on a situation-by-situation basis. However, what we are talking about in this bill is fixing gross defects, the sorts of things that the Creamers have suffered. They have really enormous gaps between floors and walls, a complete failure of cladding, appalling wet area sealing and, basically, just a grim job, a really bad job.

Once something has been done and you have had a builder come and say, 'That's it, it's finished. There it is, it's built', you have to be a builder or have trade skills yourself to really be able to go back with any authority and demand to have the work redone, so you need support. People ought to have support and it should be the job of the Government to provide an agency that provides support for both parties.

This bill is long overdue because CBOS, from the very beginning, has done what happens under agencies under the Liberals: they have stonewalled. They should not be saying from the beginning, 'Wow, this is a bad situation, I can see that we've got these standards but there's nothing you can do'. Is that reasonable? No, actually that stinks. We should do something about this. These people's lives have been damaged through no fault of their own. People are getting away with doing rubbish work and they are out of pocket.

Wouldn't that be what a government should do? Should they not have a concern about the fact that the regulations, the standards and CBOS's capacity to intervene was hampered by inadequate regulations and poor legislation, out of step with other jurisdictions? Wouldn't that have been cause for CBOS to contact the minister and say, 'We need to do something about this'? No. Yet again, under this Liberal Government, the only way things ever get changed is when people go to the media. People have to put their whole lives on the table for public display - not just one couple but multiple couples. If we did not have the media doing this independent investigation, if the media was not there telling the stories of people, of whistleblowers, there would be no change because the reflexive response of this Government is just to put their hands up and say, 'No, it's all fine'.

They have dinners with the MBA and the HIA. They have their own interests to peddle and good on them, so they should. No-one is having dinners with the people who are suffering because their houses have been shoddily built. The minister is not doing that. She is not hearing those voices. The only way those voices get elevated, when agencies push back, is to go through the media. It is exactly the same with the Office of Racing Integrity - it is identical.

I know the minister has taken carriage of this bill and has brought some really important changes in, but it has been hard. It has been a struggle the whole way and there is resistance. I am here on behalf of the Greens to say that is really pathetically bad.

Ms Archer - Any credit for introducing reform, perhaps?

Dr WOODRUFF - I did that along the way but it has taken such a long time and there has been so much pain that could have been avoided. I am sick of standing in this place and hearing from this Government that we are the best in the country. We are always hearing we are the best at everything. It is not true and just saying it does not make it real. There are many things we can improve and this is the start.

There are some important changes that have been brought on here but there are a lot of questions this bill raises and I will go through some of them now.

I strongly support the dispute resolution process outlined. I have questions about it but overall it is a great advancement on where we are. The defective work orders are an important area and the mandated inspection times where a builder has to notify a surveyor are critical - covering foundations, pouring of concrete, cladding external walls and the completion of the job, bare minimum. I accept we cannot have a building surveyor stand on the job every single day so there has to be a balance between never there and always there, and a line has to be drawn.

The minister and the Government have drawn the line at adding in two more areas. Let us not forget that every time a building surveyor is called in it does have a cost. There is paperwork and if you are an owner/builder there is a lot more paperwork, so it is about making sure that the essential issues are covered. Waterproofing of wet areas is now included. I find it shocking that it was not there in the first place, but here it is.

Penetration of fire rating is also included. I have a couple of questions about that if the minister could comment. The Institute of Architects made a submission and one of their comments was in relation to additional mandatory notifications, which I notice are not here. They support the additional wet area, waterproofing and penetration of fire rating inspections. They suggested an additional mandatory notification stage after the building has been wrapped and the roof, windows and doors have been installed, but before any cladding is installed. The purpose of that is to make sure that the building wrap and the roofing has been installed correctly along with the window and door flashing.

These micro-details very much matter. They matter in a climate-resilient world and they matter in a low-emissions world. We have to have houses that are a combination of keeping us protected from the outside temperatures, either very hot or very cold, but also providing suitable ventilation for the health of the inhabitants of the house and also to prevent mould.

The institute has said that having a point before the cladding is installed would mean it would be a further protection for the consumer and they went as far as imploring the Government to go further and look at buildings being properly ventilated in these inspections to prevent future condensation, which can lead to mould more likely than two years after a building has been completed. That can be a serious health issue for occupants. I note that in social housing in Tasmania this is a regular issue, the issue of mould building up inside ancient houses, which are typically where people in social housing live at the moment. There are still many of them like that. Living in a house where walls are wet and mould occurs is a health issue. Can the minister explain why those two suggestions from the institute were not adopted?

The other one was in relation to the fire rating. The Master Builders Association, in relation to work on class 29 buildings, questions whether affected building surveyors and fire engineers are prepared, and have the capacity and expertise to undertake these additional mandatory inspection stages. They say that most of the class 29 buildings are commercial, likely to be undertaken by commercial contractors. If there is a holdup because there is a lack of fire engineers or building surveyors capable of doing this work, that is a problem. I am not arguing against this additional safety measure. What do we understand is available in Tasmania in terms of these skilled people? Is there extra vocational training required to bring people up to standard to be able to fulfil these inspections?

They are the main questions from the MBA.

The other massive area is dispute resolutions. Minister, you said in your second reading speech that TASCAT will have the power to determine a range of matters, a building dispute application lodged at TASCAT and then TASCAT will have the power to determine a range of matters and to make a range of orders. You said these changes will deliver a significant reduction in time and cost to consumers seeking rectification of defective work and/or resolution of contract disputes. Can you please to talk through what you think the time lines for TASCAT would be when you say 'a significant reduction' in time? What are you basing that estimate on? Regarding a significant reduction in cost, can you please give us a comparison of what you think the costs will be and why they will be cheaper?

Ms Archer - You do not need legal representation.

Dr WOODRUFF - Simply in relation to that matter? Okay, thanks.

Ms Archer - With the indulgence of the Chair, regarding the time lines, it will be much faster to get a matter on before TASCAT than the courts simply because it is a tribunal and the listing - there are a lot of different members that can be called on, as opposed to a limited number of magistrates in the Magistrates Court, or judges in the Supreme Court.

Dr WOODRUFF - If Hansard did not hear that, it was about -

Ms Archer - I can repeat it when I get up.

Dr WOODRUFF - Thank you, minister. Some other questions I have in relation to dispute resolution come from the Local Government Association in their submission. They provided a suggestion to help reduce ratepayer subsidisation and move toward a more self-sustaining user pays system. This would be for the revenue collected from the building administration fee to be invested toward compliance and enforcement action. They urged CBOS to consider those sorts of measures to ensure that the building regulation system is adequately and sustainably resourced to achieve its objectives. Could you comment on that suggestion from LGAT, minister?

The MBA has asked, in relation to dispute resolution of residential building works, what the process is for the appointment of mediators to the Director of Building Control. They have recommended that the definition of acceptable standards and the measures used to assess acceptable standards of building work be very clearly defined. I expect that building surveyors would have a requirement that they are ticking off on things. You mentioned in your second reading speech that guidelines would be developed and that you would be consulting with stakeholders. I am not sure if it was in relation to this matter. It is about the acceptable standards of building work, which I would have thought is the role of building surveyors. I do not know if you had a conversation with the MBA and can provide any more guidance on that. When you were talking earlier about guidelines being developed, I asked whether consumers would be consulted, and which consumer bodies would be consulted as part of the development of those guidelines.

The MBA also asks how matters managed under contracts entered into after 1 July 2021, which contain alternate dispute resolution clauses, will be dealt with?

Ms Archer - Did you say post-?

Dr WOODRUFF - Yes. The question was how would contracts made since 1 July 2021, which have alternative dispute resolution clauses contained in them which would, I assume, be in conflict with what is being proposed in this bill, be dealt with?

Regarding the additional orders of the tribunal, what reasonable time frames are specified for parties to comply with orders for information and for payment and/or rectification? I understand from the bill that TASCAT will make orders in relation to the rectification for completion of residential building work. I am seeking clarification about whether it is your understanding, or it is detailed in the bill, that TASCAT will not only specify what needs to change but the time frame in which it needs to change, as well as the cost to the consumer and the manner of payment. Clearly, once it has reached TASCAT there are parties in serious dispute so any extra costs required to be paid by either party would need to be very clearly detailed. I do not understand what the process for that would be.

The mediation costs related to hearing a matter at TASCAT - are they made clear to complainants prior to that occurring, or is it as long as a piece of string? As you said, you do not have to engage legal representatives, but there are other costs involved. How clearly is that outlined for people, so they can make a decision - after they have already lost a lot of money and they are seeking to be redressed - about how much additional future costs they are going to incur in the process of trying to get justice, essentially.

I believe Labor will go into Committee and we will talk through quite a few clauses and there is an amendment. I have some other questions that I will leave to that process.

Thank you very much. It was last year - it feels like a long time ago - but I remember it was a fantastic briefing. I thank your staff for the work they have done and for the briefing they gave on this bill.

We really hope this will bring not just a better process for people in future to hopefully prevent, circumvent, damage in the relationship - and to buildings - between builders and their customers, but also that it will bring some justice to the people who have lost money and suffered so far. That is why we look forward to discussing Labor's proposed amendment.

I commend this bill and thank the people who are watching, who have been personally affected, and say how sorry we are for the situation that people have experienced. We hope this is the change that is needed to make sure it does not happen to other people.