The following post is a snippet of a manuscript I wrote for the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction. The overall paper discusses how building inspections need to change in response to the risks associated with it. Now, with the planned abolition of the ABCC (Australian Building and Construction Commission), it is all the more important to consider what risks are faced within a construction site by those with responsibilities of statutory enforcement, such as building surveyors and building inspectors. This was written prior to the release of the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Bill 2022.
Building inspections
The building surveyor/certifier of a project, known as the Relevant Building Surveyor (RBS) has statutory duties for issuing building and occupancy permits and causing mandatory building inspections to be undertaken. In instances of non-compliance, the RBS is meant to issue building notices, and if action is still unsatisfactory, to be followed by building orders. The most senior building surveyor in an LGA, known as the Municipal Building Surveyor (MBS) has additional powers of being able to issue an emergency order prohibiting the entry/occupation/use of a building, and ordering building rectification works to be carried out if risks are deemed a danger to life and property.
The future of building inspections
Figure 1 diagrams the current process for building approvals in Victoria. Although there are two possible processes, namely private or LGA (council), the overwhelming majority of the permit and inspection work has been handled though private practitioners.
The Building Reform Expert Panel observed that the “regulatory responsibility for building approvals in Victoria lies primarily with non-government practitioners, playing a significant regulatory role”. Noting that such an arrangement was not ideal due to the conflicts of interests earlier mentioned, the panel went on to propose four alternative models that would ameliorate the conflicts of interests inherent to a private model. One of these options is presented in Figure 2. In this VMBSG Model, the LGA, as Permit Authority, will issue the building permit in lieu of the private building surveyor. The LGA will also be responsible for either undertaking mandatory inspections or contracting this work to the private building surveyor/inspector.
The Australian Building Codes Board (ABCB), following through on Recommendation 18 of the Building Confidence Report (Shergold and Weir 2018) “that each jurisdiction requires on-site inspections of building work at identified notification stages,” proposed, in a discussion paper, a risk-based model for determining the number of mandatory inspections based on a building’s complexity (ABCB (Australian Building Codes Board) 2020). For the lowest building complexity, ABCB’s proposal had similar mandatory inspection stages as found in Victoria, with the additional inspection for the waterproofing of wet areas. Naturally, the inspections for more complex buildings will far exceed current mandatory minimums.
The additional work of supervising inspections, should Victoria adopt the VMBSG model, will require substantial additional manpower for LGAs to undertake or supervise all building inspections hitherto managed by private practitioners. This workload may be further multiplied by the increased number of stages for which mandatory inspections are to be undertaken in ABCB’s discussion paper. The level of detail of inspection will also be radically transformed when the priority shifts from a commercial value-proposition of private companies, to one aimed at the public good. However, as seen from the experience of the NSW Building Commissioner, the power to withhold permits is likely to face pushback from property developers and building practitioners, thus a degree of fortitude will be required from statutory decision-makers to enforce compliance.
Since private building surveying and inspection involved a cooperative relationship that led to a conflict of interest, would the removal of conflicts of interest with the LGAs (albeit well intended to protect public interests) mean that inspections would then become more austere and demanding, and which could potentially trend towards an adversarial relationship? What would the new dynamics be under a VMBSG model, where resentment by a builder or developer may be more suppressed seeing the LGA has monopoly over permits and inspections, and that the MBS wields additional powers compared to the PBS?
The risk of building inspections
It is worthwhile, in the face of the LGAs assuming more inspection responsibility, to consider the extant and emerging risks to safety, health and well-being in their theater of activity.
In a dispute at a construction site in Victoria’s Mill Park, a construction worker had allegedly threatened to kill an inspector from the ABCC (Australian Building and Construction Commission) (Schubert 2007). ABCC Commissioner John Lloyd said, “The unions are behind a threat to kill one of my people, it’s with the police now.” (McIlveen 2007)
The ABCC has, for years, been pursuing the construction union CFMEU for corruption, leading to long-standing tensions between the two (Hannan 2020; Metherell 2014). Investigations of organized crime links to the building and construction sector have been conducted by the Australian Crime Commission, NSW Police, NSW Crime Commission and Victorian Police (McKenzie and Baker 2014). After blowing the whistle on CFMEU NSW for money laundering, corruption and criminal associations, a senior industrial officer received death threats from a senior union organizer (McKenzie and Baker 2014).
John Setka, Victorian State Secretary of CFMEU, had threatened to reveal the addresses of ABCC inspectors, having put flyers at building sites around Melbourne with the name and address of an ABCC inspector (Clure 2017). At a 2017 Melbourne rally, he said,
“Let me give a dire warning to them ABCC inspectors, be careful what you do. You’re out there to destroy our lives… We will lobby their neighborhoods, we will tell them who lives in that house and what he does for a living, or she, and we will go to their local footy club. We’ll go to their local shopping center. They will not be able to show their faces anywhere… Their kids will be ashamed of who their parents are when we expose all these ABCC inspectors.” (Clure 2017)
The innuendo in Setka’s speech mirrors Turnbull’s attitude: the officials have gone too far, they are pushing us to the brink and we will not be pushed any further.
Setka had been convicted of two charges of domestic violence against his wife. The friend of his wife, a credible witness — being a former senior lawyer who also sat on the Fair Work Commission — wrote:
“John’s behaviour was not simply a few abusive emails or text messages. His conduct drove my friend out of her home and at one time out of the state. I was not surprised that John did not stand down or that he targeted those who did not support him as I never believed that he had any real insight into his behaviour. It was always someone else’s fault or he downplayed his conduct.” Anne Gooley, in Schneiders (2021)
With a history of violence, his threats of retaliation should not be taken lightly.
Setka likes to say to colleagues: “You throw a stone at me and I’ll throw a mountain back.” Since the leak of his speech [behind closed doors to the national executive of the union], Setka has tossed back many mountains. (Schneiders 2021)
However, it should not be perceived that the unions are the only threat. On 30 Jun 2020, two CFMEU officials attended a Hawthorn East building site and were refused entry. In an ensuing scuffle with the builder’s workers, the two union officials were injured, one being knocked unconscious (Koob 2020; Paynter 2020).
Conclusion
Construction sites can be risky venues for anyone from anywhere attempting to scrutinize it. It would be naive to send inspectors of any kind into these venues assuming that existing law enforcement and the threat of prosecutorial processes were enough to protect the inspectors.
[The full article “The Premises for Not Being On-Premises: The Case for Virtual Building Inspections” has been accepted will be published by the American Society of Civil Engineers (ASCE) later in 2022.]