Tasmanians who have defects with their new home builds could soon have access to a tribunal to hear their disputes with builders, but only if the issue occurred after mid-2021.
This has caused concern that many will be unable to access justice, including those who have repeatedly raised issues in recent years.
The government's residential building law reforms are due to be debated in parliament next week, proposed after growing concern that the state had no mechanism — other than potentially expensive legal action — for Tasmanians to resolve disputes with builders.
David and Bronwyn Barber's new home in Old Beach, north of Hobart, was finished in late 2020 but they started noticing issues well before the completion date.
Water was pooling around the house, and they believed the damp-proof course had been installed incorrectly, potentially creating mould issues down the track via water inundation of the structure.
They also noticed their sewerage system had been installed 30 centimetres too deep in the ground in front of their house, causing water to build up on top and "bubble".
This last issue has been the most costly at this stage, after Brighton Council issued the family a notice to rectify the issue within 14 days.
The Barbers had to create their own channel to help the flow of drainage, but overall, the works have cost them $10,000.
Mr Barber said the family had no expertise in home building, and had put their faith in builders and surveyors that everything would be done correctly.
He said they had received little response to their concerns.
"Every time we brought this up with the builder, it was always there's an excuse, there's a reason for it, it's meant to be like that," Mr Barber said.
"The main thing kept coming back to — in Tasmania, it's done this way."
They tried going through the regulator, the Consumer Building and Occupational Services, but were unable to get a solution, even with renewed building surveyor reports.
Despite their issues, the Barbers won't be able to get a hearing under the government's reforms, which will create a new stream in the Tasmanian Civil and Administrative Tribunal (TASCAT) to hear residential building disputes.
This is because their main dispute occurred before mid-2021.
"It's good enough for all the new people that are building, but for people like us that have raised all these issues and we've been lobbying politicians to help us and discussing it with some others, it's not really good enough that we don't have justice," Mr Barber said.
Ms Barber said "nobody" should go through what they did.
"It's excellent that it's not going to happen to people moving forward, but what about everyone else that it's happened to before mid-21?" she said.
"It's not good enough that we don't get any help either."
Their only recourse would be costly legal action.
Room for improvement in proposed reforms
The government's proposed reforms have been broadly welcomed by the construction sector and consumer groups, but some say there is room for improvement.
The Australian Institute of Building Surveyors (AIBS) noted there was no ability to deal with defective workers beyond 24 months from the completion certificate, which could be inconsistent with other states' laws.
AIBS national technical manager Jeremy Turner said this time frame should be extended to 36 months, allowing more time for surveyors to issue directions and notices if issues arise.
"There should be an additional year, where the attorney-general can actually authorise the building surveyor to take action in relation to a defect that's got a public interest outcome," he said.
"If there's a significant interest for the public that something be done beyond three years, we're suggesting that that's something that perhaps a court could [handle]."
Mr Turner said residential defects could have broader ramifications than just the individuals involved, as once a house is completed, there's a likelihood that future owners will also be lumped with the same problems.
He said 24 months was not a lot of time for defects to be noticed.
"Some defects are not able to be identified for some years after a building has been built," Mr Turner said.
"So it's not fair for the public to suffer a detriment if there's no ability in the legislation to actually deal with those sorts of defects. The Tasmanian government probably could do a little bit more in that respect."
Time frames selected after consultation
The legislation focuses on three areas: dispute resolution, addressing defective building work and the accountability of statutory office holders.
It's designed to update laws that were introduced at the start of 2017, which Labor argues did not go far enough in providing consumer protection.
A Right to Information request revealed that only two arbitrations had been undertaken by Consumer, Building and Occupational Services (CBOS) since the laws came into effect.
Labor construction spokesperson Jen Butler said the new laws should cover this entire five-year period, rather than just issues that arose after mid-2021.
"We've spoken to people who have had marriage breakdowns, people that have become extremely depressed over the fact that they weren't able to resolve building disputes through a dispute resolution program," she said.
"We think that we have an obligation to make sure those people who were good enough to share their stories, good enough to stand with us and share their stories, to make sure this didn't happen to people in the future.
"The least we could do is make sure that they're also looked after."
Attorney-General Elise Archer said the time frames in the legislation were chosen after consultation.
"Following community consultation earlier this year, the government made a decision to provide that contracts entered into since 1 July, 2021, would be eligible for the dispute resolution processes provided within the Bill," she said.
"Parties to a dispute will be able to attend mediation facilitated by Tasmania's building regulator CBOS, and if still necessary following mediation, to the TASCAT to determine the matter.
"This, of course, does not prevent parties from pursuing action in a court of competent jurisdiction."