Australia is likely to enact significant reform in regulation in regulation surrounding building product quality and safety, a conference has heard.

In a keynote address that was delivered at the Building Product Assurance Summit hosted by Master Builders Victoria on Wednesday, renowned lawyer and construction law reform advisor Bronwyn Weir unveiled the principal recommendations of a new report which has not thus far been publicly released but is likely to form the basis of significant reform effort.

The recommendations include:

• insertion of new product labelling, traceability and mandatory information requirements into the evidence of suitability provisions which are contained in the National Construction Code (NCC)
• creation of a national building product register that will be mandatory for designated types of products
• expansion of chain of responsibility laws across Australia; and
• changes to ensure building product quality in offsite construction.

The reforms are the principal recommendations in a report that Weir was commissioned to prepare by the Senior Officers Group, which was tasked by the Building Ministers Meeting to perform further work in relation to the regulation of building products.

Currently, the report is not publicly available. However, work is progressing to ensure that it can be publicly released.

The report was prepared with input from the Centre for International Economics, which provided modelling to quantify the costs and benefits of proposed reforms.

Its principal recommendations are understood to have the support of building ministers.

Building Product Failures

Throughout Australia, there has been substantial concern about the use of dangerous and non-compliant building products throughout the past decade.

In 2013, 92 percent of respondents to an Australian Industry Group survey reported use of non-complying products in their supply chains.

Between 2010 and 2013, faulty and dangerous electric cables were installed in up to 22,000 homes across Australia, prompting a massive nation-wide recall.

Audits of buildings following a fire at the Lacrosse apartment towers in Melbourne and the Grenfell Tower fire in London found that as many of 3,400 buildings around Australia contained flammable cladding.

In December 2018, the final report of a Senate Inquiry which had been running for several years found that lax regulation and enforcement had led to widespread use of non-conforming products in building projects.

All this has produced some (although limited) action in terms of regulatory response.

In 2017, Queensland introduced new laws to establish a chain of responsibility upon all parties within the building product supply chain. The chain requires parties to do what is reasonable to ensure that products which are used in buildings are safe, compliant with codes and regulations and are fit for their intended purpose.

This responsibility applies to everyone from product designers, manufacturers, importers, suppliers and installers.

Broadly similar legislation has been passed in NSW, although requirements in that state are not yet in force.

As part of a broader range of measures to improve overall building safety, the Building Confidence Report that Weir prepared in conjunction with Professor Peter Shergold in 2018 recommended the creation of a compulsory product certification system for high-risk building products.

In 2021, the Australian Building Codes Board published a National Building Product Assurance Framework, which outlined five elements of effective building product regulation.

Whilst the current report has not been publicly released at this stage, Weir was granted permission to share its primary recommendations at Wednesday’s summit.

(Around 22,000 faulty and dangerous cables were sold into Australian homes and businesses from 2010 until 2013.)

Four Areas of Change

As mentioned above, the report contains four principal recommendations.

The first recommendation involves the insertion of new requirements into the evidence of suitability provisions within the NCC.

The proposed new requirements relate to mandatory product labelling, product traceability and minimum information that needs to be provided with product supply.

The requirements will be mandatory for all building products irrespective of the type of product being used.

They aim to empower practitioners, certifiers and others to more easily assess the suitability of products which are being considered for use on particular buildings.

Under the new recommendations, labelling will be required on all building products. Exactly what this looks like for different product types and what needs to be on the labelling will need to be informed by new standards that will need to be developed.

In terms of traceability, the proposed reforms will require all new building products to be able to be traced through the entire supply chain. This could be done through barcodes, QR codes or chips.

A standard will need to be developed to specify what needs to be done in order to embed traceability identifiers onto products.

Next, minimum information requirements will specify information that needs to be included within a product. These will likely be based on the recommended information which is outlined in the aforementioned Building Products Assurance Framework.

As a final note on evidence of suitability, Weir notes that changes may be considered in relation to existing pathways through which evidence of suitability can be determined.

This was not an area that was requested to be examined in the report but may be an area in which change may occur.

The second recommendation involves creation of a national building products register.

This will provide product specifiers, installers and certifiers with clear access to relevant information from which evidence of product suitability for proposed uses can be assessed.

The register will be operated and administered by the Australian Building Codes Board (ABCB).

It will operate on a cost recovery model. This means that product manufacturers will need to pay an annual fee in order for their products to be included. The fees will be applied not only to maintenance of the register but also enforcement to ensure that information entered on the register is not false or misleading and that the information contains all of the requirements that are necessary.

The proposed register will be mandatory for designated products. Exactly which products will be designated will need to be determined by further work.  However, current thinking is that these will involve structural steel, timber, glass, fire safety related products and waterproofing products.

Where a certain type of product is designated, its inclusion on the list will be a condition of it being able to be used. This will provide an incentive for manufacturers to ensure that information provided is true, accurate and complete in order to avoid having products struck off the register and thus not able to be used.

In the case of products which are not designated, inclusion on the register will be optional but may provide a competitive advantage in terms of the transparency which is seen to be provided to specifiers, installers and certifiers.

A third recommendation involves the expansion of chain of responsibility laws across Australia in a nationally harmonised way.

As mentioned above, such laws are already in place in Queensland and have been legislated (but are not yet in force) in NSW.

In her report, Weir recommended that these be rolled out across the nation in a harmonised way.

Finally, the report made recommendations around offsite construction.

At the moment, Weir says there is a lack of clarity in building legislation across various states and territories as to whether offsite construction in fact constitutes a ‘product’ or simply a construction form.

In her report, Weir recommended that states and territories to ensure that offsite construction is effectively covered in building regulation regimes.

This will need to be supported by a national standard that is referenced in the NCC.

When developing this, there are likely to be differences in the way that offsite and onsite construction are regulated. For offsite construction, the focus will likely be on ensuring that processes, procedures, risk management controls and quality assurance mechanisms are adequate. Much work in relation to this has been done overseas and Weir says that there will be no need for Australia to reinvent the wheel.

(In 2014, flammable cladding caused a fire to rip up the Lacrosse apartment tower from the sixth floor to the 21st floor in a matter of minutes.)

Feedback Sought

It is envisaged that the ABCB will be charged with the reforms including the national product register.

Passing on a message from ABCB chief executive officer Gary Rake – who was unable to attend in person – Weir stressed that nothing is set in stone and that the ABCB is committed to broad consultation.

They will produce a discussion paper and are seeking to publish the aforementioned report.

Various events will be held in which information about the proposed changes will be shared and feedback will be sought.

“There will be an enormous amount of opportunity to have input into what this looks like,” Weir said.

“Gary (Rake) wanted me to make sure that everyone is aware that this has not happed yet.

“It’s happening and you need to jump on board and have your say about what this should look like and how to make sure that this works in the most credible, efficient and effective way so that it benefits the whole industry.”