Performance-Based Codes: The need for improved understanding of Statutory Interpretation

摘要

This paper is not a call for industry and educators to become overly legalistic, rather, the emphasis is on the need to take a broader approach when considering the introduction of a performance-based code with a view to realising that not every performance-based provision can be satisfactorily addressed by calculation. A broader approach should identify the imperative that the users of a performance-based code understand the legislative framework within which the code resides in order to properly interpret and apply the performance-based code. Statutes require compliance with relevant legal obligations. These obligations can be supported by sanctions. Decisions regarding the application of performance based provisions could be reviewed by practitioner registration bodies which are typically comprised of industry peers, or, for more serious issues a judicial review of the administrative process associated with the grant of the permit, approval or consent, may be undertaken. In graver circumstances, litigation may occur based on breach of contract, breach of statutory duty or negligence. Probably the most serious consequences for practitioners could be a Coronial review in the case of loss of life. In these circumstances the entire design and approval process including the actions and/or inactions of designers and approval authorities could come under scrutiny. The introduction of performance-based codes should be implemented pragmatically. If performance-based codes are introduced without considering the broader consequences of how industry will adopt and use the code then there may be unforeseen consequences as to how the code is understood and applied. When considering the introduction of a performance-based code the need for specialised training must be addressed. Designers and approval authorities may be able to undertake training in common for the introductory concepts however, there is a need for each practitioner group to better understand its role, hence a need for specialised training would seem to exist. It is important that industry appreciate how a performance-based code can increase the burden on designers and approval authorities. Each practitioner group should approach the performance-based code from its perspective and not confuse its industry role and specialist responsibilities. The real issue is not only for industry to belter understand the benefits of reading the performance-based code in an improved manner, but also for the educators to better understand the need to improve their approach to interpreting and applying the performance requirements of the code.