NSW Government waters down building products legislation

Building industry stakeholders are outraged that the NSW government has covertly and substantially watered down legislation to reduce non-compliant and non-conforming building product use. And the fear is that this will be replicated around the nation.

A draft of the Building Products (Safety) Bill 2017 was presented to industry stakeholders at a meeting on 6 October. Those attending included the Housing Industry Association, Australian Industry Group, Engineers Australia, Fire Protection Association of Australia, Property Council of Australia, Master Builders Association NSW, Owners Corporation Network, Australian Industry Group, Strata Choice, Strata Communities Australia NSW, Australian Institute of Architects and the Building Products Innovation Council.

According to BPIC executive officer Rodger Hills, everyone present agreed the legislation was sound and would ensure better supply chain accountability.

However, between that meeting and the tabling of the draft of the bill in parliament on Thursday 16 November, someone managed to convince the government to remove around 80 clauses addressing supply chain responsibility and other key matters.

The draft that was shown to industry, Mr Hills wrote, would have enabled the government to enact its 10-point plan to put in place a building products scheme that would prevent non-conforming and non-compliant use of products in buildings.

Having almost 80 clauses cut was the “antithesis of good regulation”, he said, and has resulted in a bill that will see the public exposed to “unacceptable building health and safety risks”.

Among the deleted clauses are provisions for:

• issuing product recalls
• banning the supply of non-conforming or non-compliant products
• making it an offence to use non-conforming products
• powers to issue directions for building inspections or audits
• duties for all parties in the supply chain to provide evidence of product conformance and suitability
• consumer protections

“The bill has major flaws,” Greens MP David Shoebridge said. “In its current form it doesn’t grapple with the supply chain. There is no responsibility there.”

Under the proposed legislation, Fair Trading would have the power to ban “unsafe” products, but only after they have already been used. It would also have the power to issue rectification notices for existing buildings that also have either non-compliant product use, such as flammable aluminium composite cladding, or where non-conforming products have been used.

However, this approach is like “having the ambulance at the bottom of the cliff,” Mr Shoebridge said. “An intelligent government would design a policy that would stop the cladding being used in the first place, instead of relying on ad-hoc reporting after the fact.”

Once Fair Trading identifies properties where building products have been used inappropriately, local councils will be notified. Companies that continue to use a banned product will be liable to fines of up to $1.1 million, with fines of up to $220,000 for individuals.