Cladding: To Ban or not to Ban, that is the Question

Since the Grenfell Tower fire on 14 June 2017, it has been revealed that the Grenfell Tower was recently clad with polyethylene (PE) core aluminium composite panels (ACPs). ACPs with a PE core have been banned in countries such as the USA and Germany. Banning, however, did not filter through globally. Here in Australia, the Senate Economics Reference Committee last week recommended that the importation of ACPs with a PE core be banned in Australia. This Alert reports on the introduction of a bill by Senator Xenophon yesterday afternoon that seeks to ban the importation of ACPs with a PE core into Australia.

The Xenophon factor

Immediately following the Grenfell tragedy, the federal Senate inquiry into non-conforming building products was asked to also focus on non-compliant cladding. The inquiry released its interim report regarding non-conforming building products on 6 September 2017, in effect, calling for a ban on the importation of ACPs with a PE core. Responding quickly to the Committee's recommendations, Senator Xenophon introduced into parliament yesterday afternoon the Customs Amendment (Safer Cladding) Bill 2017. The bill is intended to amend the Customs Act 1901 (Cth) to introduce an express prohibition on the importation of 'polyethylene core aluminium composite panels'. The Explanatory Memorandum accompanying the bill states that "this bill is urgently needed in the interests of public safety".

Is this a solution?

Whilst the bill appears to be a step in the right direction, a number of notable issues arise with the proposed solution.

First, the bill does not define what constitutes a 'polyethylene core aluminium composite panel'. Are only ACPs with a 100% PE core to be banned? What if an ACP has a 30% PE core – will it be banned? Clarity as to what percentage of polyethylene core is required before the importation of a particular panel is prohibited would be welcomed.

Secondly, the bill provides that ACPs with a PE core are taken to be 'prohibited imports' under the Customs (Prohibited Imports) Regulations 1956. However, it does not specify whether the importation is prohibited absolutely or whether they could fall within the class of products that could be imported in the future by permission of the Minister in certain circumstances.

Thirdly, the bill does not affect ACPs with a PE core that are presently in the country. It only applies to ACPs with a PE core imported after the bill receives Royal Assent.

Finally, whilst importation is intended to be banned, the use of ACPs with a PE core is currently not. Having said that, the increased focus on the use and risks associated with ACPs may mean that although their use is not banned, having their use signed off by a building surveyor or fire engineer (and any relevant authorities) on a project nowadays may be remote.

Visit Cladding: the Australian landscape since Grenfell for a more fulsome summary, by State and Commonwealth, of the recent activities embarked upon as the Federal government and each State tries to measure the size of the problem and determine how to deal with it.