Senate Inquiry into non-conforming products

Immediately following the Grenfell Tower tragedy, the existing federal Senate inquiry into non-conforming building products was asked to also focus on non-compliant cladding.  Public hearings concentrating on the use of non-compliant external cladding materials in Australia were held on 14 July 2017 in Melbourne, on 19 July 2017 in Sydney and on 31 July 2017 in South Australia. Submissions have been received by the Committee.

The inquiry released its interim report regarding non-conforming building products on 6 September 2017.

The committee acknowledged that:

• there are compliant uses for polyethylene (PE) core aluminium composite panels (ACPs) in low-rise buildings,
• there are performance-based solutions that allow for the use of PE core ACPs in high-rise buildings, and
• the signage industry uses PE core ACPs.

Despite these acknowledgments, the committee considered that there were no legitimate uses of ACPs with a PE core on any building type and recommended the urgent implementation of a total ban on the importation, sale and use of ACPs with a PE core (recommendation 1).

The committee also recommended:

• the development of a national licensing scheme with requirements for continued professional development for all building practitioners (recommendation 2);
• the introduction of nationally consistent measures to increase accountability for participants across the supply chain (recommendation 3);
• making all Australian Standards and codes freely available (recommendation 4);
• the imposition of a penalties regime for non-compliance with the National Construction Code (NCC), such as revocation of accreditation, a ban from tendering for Commonwealth funded construction work or substantial financial penalties (recommendation 5);
• ensuring the Federal Safety Commissioner is adequately resourced to ensure that the office is able to carry out its duties in line with the new audit function and projected work flow (recommendation 6);
• that the government implement the use of Director Identification Numbers to prevent directors from engaging in illegal phoenix activity (recommendation 7);
• that state and territory governments develop a nationally consistent statutory duty of care protection for end users in the residential strata sector (recommendation 8).

The Coalition Senators released a dissenting report, disagreeing with recommendations 1 and 5, considering that:

• banning an individual product will not solve the issue - instead consideration should be given to mechanisms ensuring better identification and evidence of suitability for use of the materials along the supply chain; and
• the Commonwealth government has limited powers to impose penalties.

The final report of the inquiry is due on 31 October 2017.

Customs Amendment (Safer Cladding) Bill 2017

Hot on the heels of the Senate Economics Reference Committee's recommendation 1, Senator Nick Xenophon introduced the Customs Amendment (Safer Cladding) Bill 2017 into the Senate on 11 September 2017. The bill is to amend the Customs Act 1901 to prohibit the importation of 'polyethylene core aluminium composite panels'.

Building Ministers Forum

At the end of June, the Building Ministers Forum (BMF) announced that it:

• will direct the Australian Building Codes Board (ABCB) to expedite the implementation of measures through the NCC preventing the non-complaint use of cladding;
• has directed the finalisation of implementation of recommendations set out in the Strategies to Address Risks Related to Non-Conforming Building Products report published in 2016, particularly the establishment of a national forum of building regulators;
• has, with the ABCB, created a website providing information about non-compliant building products and allowing members of the public to submit a complaint or enquiry about a product; and
• will commission a report by an independent expert on the compliance and enforcement problems affecting the implementation of the NCC.

In August, the BMF announced the commissioning of two independent experts to carry out that assessment of broader compliance and enforcement problems and set terms of reference.

The BMF is set to reconvene in October 2017. ABCB's 2016 Advisory Note on the fire performance of external walls and cladding was published last year.

ABCB

As a result of the BMF's direction to expedite the implementation of measures addressing the non-compliant use of cladding, the ABCB has released its out-of-cycle NCC 2016 Volume One Amendment 1 public comment draft, with responses due by 10 September 2017. Measures highlighted as addressing fire safety are:

• completing and publishing AS 5113 as a method for fire propagation testing and classification of external walls as part of a Performance Solution;
• improving the clarity of wording in the relevant provisions of the NCC, particularly in relation to the use of external wall claddings and attachments;
• enhancing evidence of suitability provisions and developing a new supporting handbook to complement them;
• updating the National Advisory Note in respect to external wall claddings and assemblies to reflect any changes associated with the out-of-cycle amendment; and
• improving the CodeMark product certification scheme.

A new partnership between the Australian Made Campaign and Master Builders Australia has been announced aiming to increase the use of locally made products by the building and construction industry.

The government announced on 3 July 2017 that it will establish an expert taskforce to investigate the extent of use of non-compliant cladding on Victorian buildings. The taskforce is jointly chaired by Ted Baillieu and John Thwaites. Worksafe Victoria, the Metropolitan Fire Brigade, the Victorian Building Authority (VBA), the Municipal Association of Victoria and Emergency Management Victoria will be represented on the taskforce. The taskforce will:

• oversee the continuing audit initiated by the VBA following the 2014 Lacrosse Building fire (as set out in the VBA's 2016 external audit cladding report); and
• make recommendations to the Government on how to improve compliance and enforcement of building regulations to better protect building occupants.

MinterEllison has previously written articles regarding the VBA's combustible cladding.

The New South Wales government has established a Fire Safety and External Wall Cladding Taskforce.

The Taskforce's priorities include:

• conducting a data audit to identify the buildings most likely to contain aluminium and other types of cladding;
• mandating that buildings declare to the state and local governments if their building has cladding on it;
• conducting, through NSW Fire and Rescue, Pre-Incident Plans and Home Fire Safety Checks at buildings identified through the audit;
• strengthening fire safety legislation through amendments to the Environmental Planning and Assessment Act 1979 (NSW), with reforms to commence on 1 October 2017;
• reforming the building certification system; and
• stopping the use of non-compliant building products by introducing legislation that prevents people in the building supply chain from importing, supplying, selling or using building products

The Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 (NSW) come into effect on 1 October 2017. The amendment introduces new requirements affecting the design, approval, construction and maintenance of fire safety measures.

The NSW Minister for Better Regulation has outlined the NSW government's response in a 10 point plan:

• A comprehensive building product safety scheme that would prevent the use of dangerous products on buildings.
• Identifying buildings that might have aluminium or other cladding.
• Writing to the building/strata managers or owners of those buildings to encourage them to inspect the cladding and installation of cladding, if it exists.
• NSW Fire and Rescue visiting all buildings on the list, as part of a fire safety education program. This will allow them to gather information they need to prepare for a potential fire at that building, and provide additional information to building owners.
• Creating a new fire safety declaration that will require high rise residential buildings to inform state and local governments as well as NSW Fire and Rescue if their building has cladding on it.
• Expediting reforms to toughen up the regulation of building certifiers.
• Reforms to create an industry based accreditation, that will ensure only skilled and experienced people can do fire safety inspections.
• Establishing a whole of government taskforce that will coordinate and roll out the reforms.
• Instructing all government departments to audit their buildings and determine if they have aluminium cladding, with an initial focus on social housing.
• Writing to local councils to follow up on correspondence they received from the state government, after Melbourne's Lacrosse Tower fire in 2016.

Individual councils in the Sydney area have introduced programs and audits aimed at identifying buildings with non-compliant cladding.

Insofar as introducing new legislation aimed at providing a solution with respect to non-conforming products (including non-conforming cladding), Queensland has been first off the rank.

In May this year, the Queensland Minister for Housing and Public Works introduced a bill aimed at improving the State's building regulatory system. The bill addresses both non-conforming products as well as building workplace safety. The Explanatory Memorandum states that the objectives of the bill are to:

• confer responsibilities on building product supply chain participants to ensure that a building product is not a non-conforming product;
• broaden compliance and enforcement powers of the Queensland Building and Construction Commission (QBCC);
• require QBCC licensees to report to the QBCC regarding activities on a site that might present a work health and safety issue in certain circumstances;
• require the QBCC to report to regulatory agencies regarding work health and safety issues where there is a serious injury or death;
• enable the QBCC to share information with other regulatory agencies, particularly in relation to work health and safety issues; and
• widen the grounds for the QBCC to take disciplinary action against a licensee and include convictions relating to laws that can impact on health and safety. 

A public hearing was held on 10 July 2017. The Public Works and Utilities Committee tabled its report on the bill on 4 August 2017, in which it recommended that the bill be passed.

The bill was passed on 24 August with some amendments. According to the explanatory notes, those amendments will:

• provide greater clarity as to the QBCC's information sharing ability;
• alter the definition of "safe" so as to ensure the test is not impossible to comply with for persons with a duty;
• expressly provide for extraterritorial application of the Act;
• provide the Minister with the ability to make codes of practice, which will be prescribed in subordinate legislation;
• provide that representations must not be made about the intended use of a building product complying with the relevant regulatory provisions if it does not; and
• provide protections for the Minister when making a recall order.

An Audit Taskforce has also been established by the Queensland government following the detection of potentially non-conforming cladding on the Princess Alexandra Hospital at Buranda. The Taskforce will conduct an audit primarily focusing on buildings constructed between 1994 and 2004 using aluminium composite cladding, and will start by examining hospitals and aged care facilities, accommodation buildings, high occupancy public and private buildings and high rise office buildings. Former Deputy Premier and Treasurer Terry Mackenroth has been appointed as honorary chair of the taskforce.

The Queensland government has announced that following testing it became clear that cladding on the Princess Alexandra Hospital should be removed, and this process of removing and replacing the cladding is expected to take up to 18 months.

An audit led by the Department of Planning, Transport and Infrastructure has been accelerated by the South Australian government, with the audit's initial findings due to be reported by the end of July 2017. The audit will initially focus on buildings in the City of Adelaide. Where buildings are identified as containing aluminium composite panel cladding, a risk assessment will be conducted. If a building is deemed unsafe, cladding may need to be removed or fire prevention features may need to be installed.

The audit is now entering its second phase, which will involve an examination of the fire safety systems in the 77 buildings identified as warranting further investigation to confirm that cladding is installed in compliance with the NCC and fire safety measures.

In the Tasmanian government's submission to the Senate Inquiry on Non-Conforming Building Products, the Tasmanian Minister for Building and Construction confirmed that Tasmania will conduct a further audit of 'buildings where non-compliant use of claddings could result in an unacceptable risk to the community'.

The WA Building Commission is broadening its audit of APCs which was initiated after the 2014 Lacrosse building fire. The new scope includes all high-risk, high-rise buildings in WA with cladding attached. Buildings such as apartments, hotels and other short-stay accommodation will be prioritised in the audit.

The Australian Capital Territory government has announced that it will create a taskforce to determine whether any further actions, including physical inspections of buildings, may be required on developments where aluminium composite panels have been used.