Confidence in the materials we use to build our domestic,
commercial and public buildings is of paramount importance to all. Australians
have a right to feel secure and safe in their built environment. As such,
safety has always been a key motivator in the design and implementation of
modern building regulations and construction codes. Often it is impossible for
consumers and end users of building products to know whether a product is
fit-for-purpose; trust is placed in those with the appropriate technical knowledge
to ensure Australians are protected when they purchase or use building
products, or that the appropriate product has been used in the place where they
may work or live.
Recent failures, such as the importation of
asbestos-containing building products and the 2014 Lacrosse apartment building
fire in Melbourne's Docklands, have highlighted the need for continued
vigilance of building materials used in Australia. This is to ensure that
building products and building practices in general, conform with the relevant
building regulations and standards to guarantee public safety, along with
building integrity and investment confidence in Australian building and
Non-conforming building products in Australia
This inquiry into non-conforming building products in
Australia was brought about following a number of industry-led forums that
highlighted the growing body of evidence of the use of non-conforming building
materials in the Australian construction industry. The inquiry has examined a
range of issues surrounding the production, sourcing and use of non-conforming
and non-compliant building products.
A non-conforming product or material is one that claims to
be something it is not, and does not meet the required Australian standard for
the material—for example, the use of inferior grade material, or a product that
contains illegal materials such as asbestos. A non-compliant building product
is, one that has been used in a situation where its use does not comply with
the requirements for such a material under the National Construction Code
As the inquiry's terms of reference detail, significant
issues were raised by stakeholders regarding the impact of non-conforming
products in industry supply chains (including the importers of products and the
manufacturers and fabricators of products), workplace safety and the variety of
risks and costs that could be passed on to Australian customers. Alongside
these issues, the committee took evidence relating to the use of non-compliant
building materials. The inquiry also considered and examined the effectiveness
of the current Australian building regulatory frameworks that are designed to
ensure that building products conform to, and have been used or installed in
compliance with, the relevant Australian Standards.
Inquiry's interim reports
Through the course of the inquiry, the committee has tabled
three interim reports in relation to the issues raised by submitters and at
public hearings as outlined in
The interim reports were:
- Interim report: Safety—'not a matter of good luck'—4 May
- Interim report: aluminium composite cladding—6 September
- Interim report: protecting Australians from the threat of
asbestos— 22 November 2017.
The first interim report, in May 2016, raised a range of
concerns; including, the illegal importation of building products containing
asbestos; the 2014 Lacrosse apartment fire in Melbourne and the use of
non-compliant aluminium composite cladding; and the national recall of Infinity
electric cable. The committee found that there had been a serious breakdown in
the regulation and oversight of both non-conforming and
non-compliant building products. In particular, the committee highlighted the
weakness in the regulatory regime, including the certification process and the
disjointed regulation of the use of building products, both manufactured in
Australia and overseas. Based on the findings in the first interim report, the
committee made one recommendation which was to continue the inquiry.
In September 2017, the committee tabled its second interim
report—Interim report: aluminium composite cladding. This report focused
on the issues raised around the use of polyethylene (PE) core Aluminium
Composite Panels (ACPs) that had significantly contributed to the Lacrosse fire
in Melbourne in 2014 and the tragic Grenfell Tower fire in London in 2017. The
report found that deregulation and privatisation of building certification
processes and the absence of proper regulatory controls, coupled with the
increase in ACP product importation, led to the proliferation and installation
of non-compliant building products. Importantly, the report was also critical
of the lack of any timely government response to the Lacrosse fire, as well as
any meaningful resolution between governments, the Building Ministers' Forum,
and the Senior Officers' Group on possible steps forward in dealing with the
proliferation of ACP panels. The committee's report put forward eight
recommendations to address the importation and use of ACP panels and strengthen
the regulatory system including recommending banning the importation of ACP
panels and a national licencing scheme for all trades and professionals (See
Appendix 3 for list of recommendations).
In November 2017, the committee tabled its third interim report
titled, Interim report: protecting Australians from the threat of asbestos.
Like its predecessor, this report concentrated on one topic, the illegal
importation of asbestos. This report made
26 recommendations addressing how best to combat the intentional and
unintentional importation of asbestos in building and other materials,
including complete machinery (See Appendix 4 for list of recommendations).
Final inquiry report
This final report outlines many of the common issues across
the prior three reports. It also supports the compliance concerns raised in the
Building Ministers' Forum report, Building Confidence—Improving the
effectiveness of compliance and enforcement systems for the building and
construction industry across Australia, prepared by Professor Peter Shergold
and Ms Bronwyn Weir, and draws attention to the progress being made in dealing
with non-conforming products in some jurisdictions. Specifically, the committee
was encouraged by the proactive work undertaken by the Queensland Government in
their new legislation designed to strengthen the chain of responsibility for
the importation and distribution of building materials. As such, Recommendation
6 of this report suggests that other jurisdictions also move to implement
similar legislation to ensure responsibility and accountability is spread more
evenly across supply chains.
3.86 The committee recommends that the Building
Ministers' Forum give further consideration to introduce a nationally
consistent approach that increases accountability for participants across the
supply chain. Specifically, the committee recommends that other states and
territories pass legislation similar to Queensland's Building and Construction
Legislation (Non-conforming Building Products—Chain of Responsibility and Other
Matters) Amendment Act 2017.
Where to next?
By and large, many of the 13 recommendations of this final
report echo those recommendations put forward in the previous interim reports.
The committee is cognisant that the Building Ministers' Forum is already moving
on some of these issues as highlighted by the Shergold and Weir report.
Nevertheless, the committee would encourage both the government and the
Building Ministers' Forum to increase the level of momentum in implementing
these recommendations and, moreover, those recommendations that have been
raised previously. These include, expediting mandatory third party
certification for high risk products, including a national register of
non-compliant products if feasible, and the introduction of a national
A simple change that the committee put forward previously, and one which it
strongly believes would assist stakeholders, is to consider making all Australian
Standards freely available. All forms of legal requirements should be freely
available, where feasible, so that stakeholders can inform themselves
adequately of their obligations under the relevant law.
Final report recommendations
The recommendations contained in this report are aimed at
strengthening accountability and compliance and providing greater information
to stakeholders, in turn, allowing stakeholders to make informed choices and
ensuring the development of a coherent and robust regulatory regime for
building materials in Australia.
The committee believes that the areas that would benefit
from urgent action by the Building Ministers' Forum include the following recommendations:
1, 3, 5, 6 and 10.
3.69 The committee recommends that the Building
Ministers' Forum develop improved consultative mechanisms with industry
stakeholders. In addition, the Building Ministers' Forum should amend the terms
of reference for the Senior Officers' Group and the Building Regulators Forum
to include annual reporting requirements on progress to address non-conforming
3.78 The committee calls on the Building Ministers'
Forum to expedite its consideration of a mandatory third-party certification
scheme for high-risk building products and a national register for these
3.80 The committee recommends that the Building
Ministers' Forum, through the Senior Officers' Group, examine international
approaches—including the European Union's regulations and processes—for testing
of high-risk products prior to import and determine if they can be suitably
adapted to benefit and enhance Australian requirements.
5.13 The committee gives in-principle support to
Recommendation 12 of the Shergold and Weir Report '[t]hat each jurisdiction
establishes a building information database that provides a centralised source
of building design and construction documentation' so regulators are better
placed to identify where non-compliant building products have been installed.
The committee has also identified a range of specific recommendations
(numbers: 2, 4, 7, 8, 9, 11, 12, and 13) that it believes are best placed for
government to progress and, as indicated earlier, a number of these have been
proposed in earlier interim reports.
3.74 The committee recommends that the Australian
Government develop a confidential reporting mechanism through which industry
and other stakeholders can report non-conforming building products.
3.79 The committee recommends that where an importer
intends to import goods that have been deemed high-risk, the Australian
Government require the importer, prior to the importation of the goods, to
conduct sampling and testing by a NATA accredited authority (or a NATA
equivalent testing authority in a another country that is a signatory to a
Mutual Recognition Arrangement).
4.21 The committee recommends that the Australian Government
work with state and territory governments to establish a national licensing
scheme, with requirements for continued professional development for all
4.40 The committee strongly recommends that the
Australian Government consider making all Australian Standards freely
5.10 The committee recommends that the Australian
Government consult with industry stakeholders to determine the feasibility of
developing a national database of conforming and non-conforming products.
5.22 The committee recommends the Australian
Government consider imposing a penalties regime for non-compliance with the
National Construction Code such as revocation of accreditation or a ban from tendering
for Commonwealth funded construction work and substantial financial penalties.
5.27 The committee recommends that the Australian
Government consider the merits of requiring manufacturers, importers and
suppliers to hold mandatory recall insurance for high-risk building products.
5.42 The committee recommends that the Australian
Government review the Customs Act 1901 (and other relevant legislation)
to address the challenges of enforcing the existing importation of asbestos
offence, with the aim to close loopholes and improve the capacity of
prosecutors to obtain convictions against entities and individuals importing
asbestos. This review should include consideration of increasing the threshold
required to use 'mistake of fact' as a legal defence.
The committee strongly advocates that the Australian Government
and Building Ministers' Forum move quickly to adopt and implement these
recommendations to provide greater confidence in building products and to
protect all Australians.
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