Twyford Phil: Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Twyford Phil: Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Bill — In Committee 
[Sitting date: 07 July 2011. Volume:673;Page:19933. Text is incorporated into the Bound Volume.] 
PHIL TWYFORD (Labour) 
: 
 I refer briefly back to the issue about Crown immunity or immunity for the Department of Building and Housing assessors. I saw the look on the face of the Minister in the chair the Minister of Building and Construction querying my suggestion that his Department of Building and Housing officials had advised that there was no need for Department of Building and Housing assessors to have this immunity. I refer him to page 7 of the regulatory impact statement. It states: “The Department of Building and Housing considers that it is appropriate for the Department/Crown to be held accountable for the work that it is responsible for.” That is after a lengthy passage that states that it is perfectly manageable for the assessors to be accountable in the normal way under the law. 
I will talk about my amendment to section 125F which is on Supplementary Order Paper 250. I am disappointed by the response we have had from the Minister about this amendment. This amendment deals with the bar on third-party claims over houses that are subject to the repair agreement under this package. The bill states that if a builder or a designer is sued by a homeowner they cannot enjoin a council that is already party to the agreement. We heard from submitters—and it is spelt out in the regulatory impact statement—that that takes away a property right. I expect the member for ACT to prick up her ears at that suggestion. This takes away a property right. It takes away a right under the common law for a third party a builder or a designer to enjoin a council to legal action. Imagine this as the situation: a builder is sued by a homeowner. They say: “Crikey we are not the ones who are fully responsible; the council was even more to blame than we were for this leaky home. Why should we be the last man standing? The council should be part of this conversation and should share some of the liability.” Under this bill that legal right is taken away from those third parties. That seems unfair to me. I know that there is a political justification. The Minister has said councils made it very clear that they would not pony up and be part of this package unless they were fully protected. 
Supplementary Order Paper 250 offers a balanced and reasonable compromise. It still limits the liability of the councils. It says that if a third party—like a builder or an architect—finds themselves being sued by the homeowner and wants to enjoin the council then they have to prove to the tribunal or the court that they have a good case that stands a reasonable chance of being successful and that the liability of the council in question is likely to be significantly more than the amount that they are already committed to under the 25 percent in the repair agreement. There is a significant threshold that the third party would have to reach if they were going to then enjoin a council in this legal action. 
When the Minister took a call on this earlier I did not hear a substantive response to this Supplementary Order Paper. When we are taking away the legal rights of people like builders and architects in this situation we do at our peril. So it is only fair that we think very very carefully about it. We offered in this Supplementary Order Paper a balanced approach that does not expose councils to unrestricted liability. It would require that a third party front up to the tribunal or a court of law and make the case that the third party would stand a good probability of winning.