Key Findings from Non-conforming Building Products Inquiry
The final report of the inquiry into non-conforming building products was tabled by the Senate Economics References Committee in December 2018. Subtitled “the need for a coherent and robust regulatory regime”, it aims to strengthen accountability and compliance in relation to building products.
The inquiry examined non-conforming and non-compliant building products in terms of their production, sourcing and use. It also investigated current 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.”
The final report reiterates many of the findings and recommendations of the three interim reports and identifies common themes across the three. It also supports the compliance findings in Building Confidence, the Shergold Weir report.
The committee argues that the Australian Government and Building Ministers’ Forum should “move quickly to adopt and implement these recommendations to provide greater confidence in building products and to protect all Australians.” It calls for urgent action from the Building Ministers Forum on four recommendations:
That the forum develops improved consultative mechanisms with industry stakeholders, and amends 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 building products.
That the forum expedites its consideration of a mandatory third-party certification scheme for high-risk building products and a national register for these products.
That the forum, through the Senior Officers’ Group, examines international approaches – including the European Union’s regulations and processes – for testing of high-risk products prior to import and determines if they can be suitably adapted to benefit and enhance Australian requirements.
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.
Further recommendations are as follows:
That the Australian Government develops a confidential reporting mechanism through which industry and other stakeholders can report non-conforming building products.
That where an importer intends to import goods that have been deemed high-risk, the Australian Government requires 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 another country that is a signatory to a Mutual Recognition Arrangement).
That the Australian Government works with state and territory governments to establish a national licensing scheme, with requirements for continued professional development for all building practitioners.
That the Australian Government considers making all Australian Standards freely available.
That the Australian Government consults with industry stakeholders to determine the feasibility of developing a national database of conforming and non-conforming products.
That the Australian Government considers 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.
That the Australian Government considers the merits of requiring manufacturers, importers and suppliers to hold mandatory recall insurance for high-risk building products.
That the Australian Government reviews 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.