Building Products (Safety) Bill 2017 NSW: Awaiting Assent
Monday 27 November 2017 @ 9.51 a.m. | Industrial Law | Trade & Commerce
The Building Products (Safety) Bill 2017 (the Bill) intended to address the safety risks which arise from the use of non-conforming building products has been passed through both houses of the NSW parliament with amendments on 23 November 2017 and is now awaiting assent.
The Bill is part of the NSW government's policy response to the Lacrosse fire in Victoria and the Grenfell Tower fire in London, which resulted in a large number of deaths. In both fires it has been determined that there was a link to the use of "aluminium composite panels", as cladding for those buildings.
According to the Minister for Innovation and Better Regulation, Matt Kean (the Minister) in his second reading speech:
Included in that plan was an audit of NSW buildings by the inter-agency Fire Safety and External Wall Cladding Taskforce, whose findings discovered over 1,000 buildings out of some 178,000 audited to be at risk from "dangerous cladding".
Objectives of the Bill
The objectives of the Bill are as follows:
(a) to prevent the unsafe use of building products in buildings, by giving the Commissioner for Fair Trading (the Secretary) power to prohibit the use of a building product in a building if the Secretary is satisfied on reasonable grounds that the use is unsafe,
(b) to enable the Secretary to identify buildings in which building products have been used in a way that is prohibited (including buildings in which building products were used before the prohibition was imposed),
(c) to enable councils or other relevant enforcement authorities to require the use of the relevant building product in the building to be rectified, by giving the council or other relevant enforcement authority power to order that the safety risk posed by the use of the building product in the building be eliminated or minimised,
(d) to confer other powers in connection with the investigation and assessment of building products so that unsafe uses of building products can be identified and prevented.
In effect the Bill will enable the Secretary to:
- ban the use of unsafe building products;
- issue affected building notices;
- permit the enforcement authorities to make building product rectification orders; and
- confers a range of investigation powers on authorities to allow them to identify and eliminate unsafe building products.
Use Ban
The Bill provides as a basic principle that the Secretary is able to ban specified uses with respect to a building product when it is satisfied on reasonable grounds that a particular use is unsafe. "Unsafe" is determined as follows:
- there is a safety risk posed by the use of the building product in the building;
- there is a safety risk posed by the use of a building product in a building if any occupants of the building are or will likely be at risk of death or serious injury arising from the use of the building product in the building.
A safety risk can arise even where it only arises in certain circumstances, as in the case of a fire.
Limitations imposed by a ban can be:
- to limit only certain uses of the product,
- to limit the ban to certain buildings or classes of buildings or
- to limit the use of a product by certain persons or classes of persons.
Reasons must be specified in the ban.
Where it is in the public interest that a product use ban not be delayed it is not required that notice be given to a manufacturer affected by a use ban. The Bill also provides for public submissions as to whether a product use ban is warranted and such submissions can be made before and after a use ban has been implemented.
Under the Bill's provisions it will be an offence for a person to represent that a building product is suitable for use in a building if such a use would contravene a building product use ban.
Identification and rectification
The Bill provides that the Secretary will be able to issue an affected building notice. This notice alerts owners, councils and the Commissioner of Fire and Rescue NSW that a building has a fire risk caused by the use of unsafe building products. Importantly, an affected building notice will be able to be issued with respect to a building regardless of whether the product the subject of the building product use ban was incorporated into the building before the building product ban took effect.
Penalties for Breach
Ignoring a building product use ban or representing that a banned product is suitable for use, is to be an offence with a maximum penalty of $1.1 million for corporations and $220,000 or two years’ imprisonment, or both, for individuals. Corporations face a further $110,000 fine for each day an offence continues ($44,000 per day in the case of individuals). Severe penalties also apply for Directors who contravening a building product use ban - a liability which extends also to individuals involved in the management of a company who are in a position to influence the conduct of the company in relation to the commission of those offences.
Next Steps
As indicated above the Bill has been passed through both houses of the NSW parliament with amendments on 23 November 2017 and is now awaiting assent. Once enacted the provisions of the new Act in the main commences on proclamation.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Sources:
Building Products (Safety) Bill 2017 [NSW] and second reading speech as reported in the TimeBase LawOne Service.
