Legislative Council, Wednesday 25 May 2023

Ms FORREST (Murchison) - Mr President, I do not intend to speak at length on this bill. There will be a lot more debate to be had in the Committee stage when we get to the various provisions of it. I will say that I absolutely welcome this bill.

In my experience, I have had very good builders, with absolutely no complaints about their work, the way they conducted themselves or the way they have developed their contracts; and during that period where defects can be managed, they were also very responsive. I have absolutely no personal complaint about a builder; but I am sure we do not have to go very far to hear a horror story about people who have had troubles. I appreciate the representation we received this morning in the briefing, from people who have been deeply harmed by works that have been done on their prize possession - their own home - that have seen them completely let down; completely done over in every way; cost them a huge amount of money; and pushed them to the point of taking their own life, only to be prevented by their loved ones.

That is an extraordinary position for anyone to be put in; but when you hear the stories and you listen to what they have been through, I can see why they may get to that point. They feel like failures, they feel like it is their fault and they simply have no tangible avenue for redress.

I was here, as other members were, when we brought forward some of the legislation that sits as part of this package around building control, when CBOS was established. I look back at that time and I am pretty convinced we talked about a lot of these sort of things and the intention of CBOSS to take that role, to be able to step in where things were not going well and to be the body there for the consumer, but clearly, it has failed. It has absolutely failed, not everyone, but for some people it has failed and it has failed dramatically, spectacularly, and in ways I certainly did not envisage when we initially put the legislative framework in place to try and provide consumer protection against shoddy workmanship or basically just being ripped off. For these people to be shut out of their homes so they cannot even really see what is going on adds to the stress, adds to the cost, and is completely destructive for some people's lives.

It is important that we get a balance right and I commend the Attorney-General for her work getting TASCAT up, but also, this is the most appropriate framework to enable a stream within our civil and administrative appeals tribunal. That is where it should sit, but I also recognise there needs to be front end mechanisms, too, to enable orders to be issued for correction or remediation of works to be done.

As indicated in the briefing, in this case, back to the so-called Contracts Act. that the remediation and judication has not worked as intended in that and basically, it was narrowed down to only on completion. You had to wait till the job was notionally finished, even though you might not be able to even take possession of the property because it is so unsafe or shoddy, you cannot fit your car in the car port or open the doors, or whatever it is. You had to get to that point before that would actually kick in to any degree.

The bill and the second one, especially, is very extensive and goes through all those provisions. You could go through the bill and look at the provisions and think, 'So, what's missing, how could this possibly not work', because that is what we did last time. It was a massive piece of legislation last time too. We did talk about some of these matters on disputes with neighbours, disputes with a builder, disputes with your building surveyor, all of those things and, in many respects, it comes back to we hope it works and I hope we have done better this time.

Through the consultation process, which, again, I note was extensive and seemed to have been undertaken with the appropriate parties and a range of stakeholders, I hope some of these failings have been adequately addressed and will actually result in outcomes for people. Obviously, mediation is unlikely to work. If you have one party who refuses to participate willingly and should that be the case, CBOS can actually say this is not working and they can refer to the TASCAT approach.

Mediation is always a preferable option, because once you get two parties in a room together, you often can work things out. Sometimes, obviously, you cannot and when things have gone as badly for as long for some of the people we have heard from, the people who spoke to us, but also the other stories they shared with us, to even be in the same room as the builder or even building surveyor, whoever it is you have the grievance with, could be so traumatic it becomes impossible for the person who really wants to sort it out.

We need to recognise it may not always be a workable option, mediation and restoration through those processes, it may actually be more harmful for those people if they were forced into it but it should not get to that point. If these problems, defects, whatever the problem, are identified early, if they can be discussed and resolved early, we should not see that many cases go to TASCAT quite frankly. That would be the ideal, surely.

The bill seeks to address the challenges that sadly too many people - one is too many but you know there is more than one, there is several, who knows how many actually - who have had real challenges in this. I asked in the briefing and I ask the Leader to address this in her reply, if an order is made to pay damages, and the day after that order is issued a builder declares bankruptcy, what happens then?

People can take this fight on and again, they may seek to get legal advice and support for the process depending on the circumstances. They spend more money to try to deal with the problem and then the builder goes bankrupt or declares bankruptcy. How does this interact with the legislation that would protect the consumer there?

I understand the mandatory home warranty insurance is going to be re-enlivened but I would like the Leader to talk about that as was discussed in the briefing so it becomes part of this whole conversation about how we protect consumers.

I also note the time limitation in the bill as it is and I acknowledge that the member for Rumney is proposing an amendment to backdate the effect of this for a longer period. I will listen to the debate in that but my gut feeling on this, and, I am open to hearing all views of course, is we thought we had this right in 2016 when we brought this legislation forward. That legislation has comprehensively failed some people, so why do we have we this arbitrary cut-off point if that was the point, that it was supposed to deal with it? Okay, we will help people but not this lot, even though they were operating under the same piece of legislation that we brought in. The parliament agreed it was actually going to provide that level of protection for the consumer. When it has failed, I do not see how you can draw this arbitrary line and say 'well, we will help you, but not you.'

There are some other carve-out provisions in the bill that talk about when it may not be appropriate to do that, the matter is currently on foot in another area, but I will be very interested to understand why the Government may or may not support that. Happy to support it, I do not think it will be a problem, but, if they are not, I think they will have to make a pretty good case as to why I would not support that.

In broad terms, I do not have particular questions about the content of the provisions in the bill that cannot be answered in the Committee stage when they are getting more nuanced into the detail. Overall, the approach appears to be a really positive one, a much more front-ended approach where people, hopefully though a fairly considered public education process when you are signing a contract, when you are engaged with a builder, this is what you need to know. If there is a dispute or you believe there is a problem with the build or the builder is not building the property according to the DA or the contract that you have signed, then you can intervene early, and this is how you do it.

You cannot just rely on social media to point out dodgy builders. Whilst that can be effective it is also perhaps a bit of an unfair process too because there are very little rights for reply with social media. It would be much better to have a proper, robust legal framework that enables these matters to be dealt with in a timely manner in a way that seeks resolutions rather than big legal bills and people can actually get on and have their homes built in a way that they want. Of course, sometimes when builders are starting a build they will see things that need to change and that is what variations in contracts are for, but it should always be in writing in my view rather than verbal.

We have renovated a very old house and once you get into one of them you know about variations. When you realise the piers under the floorboards are rotted so if you do not fix them now you will have to fix them in a couple of years' time when the whole floor sinks or something. Most people would recognise getting into an old house to renovate it you never know quite what it is going to throw up. That is why you then have the discussion with the builder about a contract variation and say, how are we going to deal with this?

I support the principle of the bill. I believe it is a positive step. I hope it does work as intended but we do need to look at some of the other aspects that will no doubt be debated in the committee stage. I support the bill.