Building Products (Safety) Act 2017 (NSW)

Building Products (Safety) Act 2017 No 69 An Act to prevent the unsafe use of building products in buildings and to provide for the rectification of affected buildings; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Building Products (Safety) Act 2017. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsections (2)–(5). (2) Schedule 2.1 commences on the commencement of Schedule 9.1 [2] to the Environmental Planning and Assessment Amendment Act 2017, or the date of assent to this Act, whichever occurs later. (3) Schedule 2.4 [3] commences on the commencement of section 6.25 of the Environmental Planning and Assessment Act 1979 (as inserted by the Environmental Planning and Assessment Amendment Act 2017), or the date of assent to this Act, whichever occurs later. (4) Schedule 2.4 [4] commences on the commencement of section 9.34 of the Environmental Planning and Assessment Act 1979 (as inserted by the Environmental Planning and Assessment Amendment Act 2017), or the date of assent to this Act, whichever occurs later. (5) Schedule 2.5 commences on the commencement of Schedule 9.1 [2] to the Environmental Planning and Assessment Amendment Act 2017, or the commencement of section 18 of this Act, whichever occurs later. 3 Definitions (1) In this Act— authorised officer means an authorised officer appointed under section 74. building—see section 6. building product—see section 5. building product investigation—see section 34. building product rectification order means an order under section 20. building product use ban means a building product use ban under section 9 that is in force. building work—see section 8. council has the same meaning as in the Local Government Act 1993. Department means the department in which this Act is administered. director has the same meaning as in the Corporations Act 2001 of the Commonwealth. executive liability offence—see section 59. foreign building product means a building product that is manufactured wholly or partly outside Australia. function includes a power, authority or duty, and exercise a function includes perform a duty. injury includes illness. land has the same meaning as in the Environmental Planning and Assessment Act 1979. manufacturer has the same meaning in relation to building products as it has in the ACL in relation to goods. owner has the same meaning as in the Local Government Act 1993 and includes, in relation to a building, the owner of the building and the owner of the land on which the building is erected. premises includes any land, building, structure, vessel, aircraft or vehicle and any place, whether built on or not. published has the same meaning as it has in the Fair Trading Act 1987. representation means a claim, promise, publication, statement or other representation made in any way, including, for example, in advertising material or packaging or on a point-of-sale display. safety risk—see section 4. Secretary means the Secretary of the Department. statement has the same meaning as in the Fair Trading Act 1987. strata scheme means a freehold strata scheme or a leasehold strata scheme under the Strata Schemes Development Act 2015. supplier of a thing includes a person who supplies or re-supplies the thing by way of sale, exchange, lease, hire or hire-purchase. the ACL means the Australian Consumer Law (NSW). Note— See Part 3 of the Fair Trading Act 1987. trade or commerce has the same meaning as in the Fair Trading Act 1987. Tribunal means the Civil and Administrative Tribunal. unsafe—see section 4. use, in relation to a building product—see section 7. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Sections 2 (2) and 11 of the ACL apply to the provisions of this Act in the same way as they apply to the provisions of the ACL. (3) Notes included in this Act do not form part of this Act. Part 2 Key concepts 4 Safety risks and unsafe use of building products (1) For the purposes of this Act, 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. (2) A risk can be considered to arise from the use of a building product in a building even if the risk will only arise in certain circumstances or if some other event occurs, such as fire. (3) The regulations may prescribe other circumstances in which a safety risk is posed by the use of a building product in a building. (4) For the purposes of this Act, the use of a building product in a building is unsafe if there is a safety risk posed by the use of the building product in the building. 5 Building product (1) A building product means any product, material or other thing that is, or could be, used in a building. (2) The following things are not building products for the purposes of this Act— (a) asbestos or an asbestos product (including any loose-fill asbestos insulation within the meaning of Division 1A of Part 8 of the Home Building Act 1989), (b) anything that the regulations declare is not a building product for the purposes of this Act. 6 Building A building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure within the meaning of the Environmental Planning and Assessment Act 1979), but does not include anything excluded from this definition by the regulations. 7 Use of building product (1) A building product is used in a building if it is incorporated into, connected to, or otherwise installed in a building by means of building work. (2) The use of a building product in a building has a corresponding meaning. (3) A use of a building product in a building includes a misuse of a building product in a building. 8 Building work (1) Building work means any work involved in, or involved in co-ordinating or supervising any work involved in— (a) the construction of a building, or (b) the making of alterations or additions to a building, or (c) the repairing, renovation, decoration or protective treatment of a building. (2) Work that relates to a building is taken to be building work if the work is residential building work under the Home Building Act 1989 or if it would be residential building work under that Act if the building were a dwelling. (3) Work that relates to a dwelling is not building work if the work is not residential building work under the Home Building Act 1989, subject to subsection (4). (4) Work that relates to a dwelling is not excluded from being building work under this Act by virtue of clause 2 (3) (a) of Schedule 1 to the Home Building Act 1989. (5) The following work is not building work for the purposes of this Act— (a) the supervision only of building work— (i) by a person registered as an architect under the Architects Act 2003, or (ii) by a person supervising owner-builder work (within the meaning of the Home Building Act 1989) for no reward or other consideration, or (iii) by any other person, if all the building work is being done or supervised by the holder of a contractor licence under the Home Building Act 1989 authorising its holder to contract to do that work, (b) demolition work, (c) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide, (d) any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides, (e) any work done by an individual in connection with a dwelling that is owned by the individual, unless the work is specialist work (within the meaning of the Home Building Act 1989) or work for which an owner-builder permit is required under that Act. (6) This section has effect subject to any regulations under subsection (7). (7) The regulations may do any of the following— (a) declare any work to be building work for the purposes of this Act, (b) declare any work not to be building work for the purposes of this Act. (8) In this section— dwelling has the same meaning as in the Home Building Act 1989. Part 3 Building product use bans 9 Secretary may prohibit use of building products (1) The Secretary may, by written notice published on the internet, prohibit the use of a specified building product in a building if the Secretary is satisfied on reasonable grounds that the use is unsafe. (2) A prohibition imposed under this section is a building product use ban. (3) A building product use ban may be imposed to apply in any of the following ways— (a) it may apply to a specified use or uses or to all uses of a building product in a building, (b) it may apply to any building or only to a specified class of buildings, (c) it may apply to use by specified persons or classes of persons, (d) it may apply subject to specified exceptions (for example, an exception that permits use of the building product only by a specified class of persons), (e) it may be subject to conditions or unconditional, (f) it may apply in any other way authorised by the regulations. (4) A building product use ban that prohibits an unsafe use of a building product is not invalid merely because it also prohibits another use of the building product that is not an unsafe use if the application of the ban to that other use could not reasonably be avoided and the ban operates reasonably and appropriately in prohibiting the unsafe use. 10 Reasons to be given (1) A building product use ban must specify the reasons why the Secretary has decided to impose the building product use ban. (2) The requirement to give reasons applies to a decision to amend a building product use ban in the same way as it applies to a decision to impose a building product use ban. 11 Duration of ban (1) A building product use ban comes into force on the day specified by the Secretary in the notice imposing the ban (being a date not earlier than the date that the notice is first published on the internet). (2) A building product use ban remains in force until it is revoked by the Secretary. 12 Amendment or revocation of ban (1) The Secretary may, by written notice published on the internet— (a) amend a building product use ban, or (b) revoke a building product use ban. (2) An amendment or revocation takes effect on the date specified by the Secretary in the notice amending or revoking the ban (being a date not earlier than the date that the notice is first published on the internet). 13 Secretary may call for public submissions (1) The Secretary may, before or after imposing a building product use ban, by written notice published on the internet, call for public submissions on the question of whether a building product use ban is warranted and the terms or proposed terms of the ban. (2) If the Secretary calls for public submissions, the Secretary is to have regard to any submissions that are duly made to the Secretary by the date that is 28 days after the publication of the notice (or by a later date approved by the Secretary) in deciding whether to impose the building product use ban or, if the ban has already been imposed, to amend or revoke the ban. (3) The Secretary is not required to give any person an opportunity to make submissions on a building product use ban or proposed building product use ban before it is imposed (despite any requirement of the rules of procedural fairness). (4) This section applies to an amendment to a building product use ban in the same way as it applies to the imposition of a building product use ban. 14 Notice of imposition of building product use ban (1) The Secretary must, if practicable, give notice of a building product use ban to the manufacturer of the building product concerned. (2) If the building product is a foreign building product, notice may instead be given to an Australian importer or supplier of the building product. (3) If practicable, notice is to be given at least 48 hours before the building product use ban is published on the internet. (4) However, the Secretary is not required to give prior notice of a building product use ban if the Secretary believes on reasonable grounds that the nature of the safety risk posed by the use of the building product is so serious that, in the public interest, the publication of the building product use ban should not be delayed. (5) The Secretary is not required to give notice to a person under this section if the Secretary is unable, after making reasonable inquiries, to ascertain the identity of, or to locate, the person to whom notice would otherwise be required to be given. (6) The Secretary may also comply with a requirement to give prior notice of a building product use ban under this section by publishing notice of the Secretary's intention to impose a building product use ban on the internet. (7) This section applies to an amendment to a building product use ban in the same way as it applies to the imposition of a building product use ban. 15 Offence to contravene building product use ban (1) A person must not cause a building product to be used in a building in contravention of a building product use ban. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or (b) in any other case—2,000 penalty units or imprisonment for 2 years, or both, and, in the case of a continuing offence, a further penalty of 400 penalty units for each day the offence continues. (2) For the purposes of subsection (1), a person causes a building product to be used in a building— (a) if the person does the building work by which the building product is used in the building, or (b) in any other circumstances prescribed by the regulations. (3) A person must not, in trade or commerce, represent that a building product is suitable for a use in a building if that use would contravene a building product use ban. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or (b) in any other case—2,000 penalty units or imprisonment for 2 years, or both, and, in the case of a continuing offence, a further penalty of 400 penalty units for each day the offence continues. (4) In proceedings in which a person is charged with an offence under this section, it is a defence to the prosecution of the offence if the person charged proves that the person had a reasonable excuse for the act or omission concerned. (5) An offence against subsection (1) or (3) is an executive liability offence. Part 4 Identification and rectification of affected buildings 16 Definitions In this Part— affected building—see section 17. affected building notice means a notice under section 18. general building safety notice means a notice under section 19. made safe—see section 26. relevant enforcement authority in relation to a building means— (a) a relevant enforcement authority for an order under Part 1 of Schedule 5 to the Environmental Planning and Assessment Act 1979 in respect of the building, or (b) in the case of a building that is not a building within the meaning of the Environmental Planning and Assessment Act 1979, the council for the area in which the building is located. 17 Affected building (1) For the purposes of this Part, a building is an affected building if a building product the subject of a building product use ban has been used in the building for a use that is prohibited by the building product use ban. (2) It does not matter that the building product was used in the building before the building product use ban was in force. 18 Identification and notification of particular affected buildings (1) If the Secretary is satisfied, on reasonable grounds, that a particular building is or may be an affected building, the Secretary may issue a notice under this section (an affected building notice). (2) An affected building notice is to include the following information— (a) the location of the building that is or may be an affected building, (b) particulars of the relevant building product use ban, (c) particulars of the safety risk posed by the use of the building product to which the building product use ban applies. (3) The Secretary is to give a copy of an affected building notice to the following— (a) the owner or owners of the building, (b) the occupier or occupiers of the building, (c) the council for the area in which the building is located, (d) a relevant enforcement authority for the building (if the council is not a relevant enforcement authority for the building), (e) the Commissioner of Fire and Rescue NSW, if the safety risk posed by the use of the building product relates to a risk of fire. (4) If the building is the subject of a strata scheme under the Strata Schemes Management Act 2015, a requirement to give notice to the owner or owners of the building is satisfied if notice is given to the owners corporation constituted under that Act. (5) The Secretary may publish an affected building notice on the internet, but only if the Secretary considers that it is in the public interest to do so. 19 General warning about class of buildings that may be affected buildings (1) The Secretary may issue a notice under this section (a general building safety notice) if the Secretary is satisfied, on reasonable grounds, that a class of buildings may be affected buildings. (2) A general building safety notice is a notice that identifies the safety risk posed by the use of a building product that is the subject of a building product use ban in the class of buildings concerned. (3) A general building safety notice is to include the following information— (a) particulars of the class of buildings that may be affected buildings, to the extent known to the Secretary, (b) particulars of the relevant building product use ban, (c) particulars of the safety risk posed by the use of the building product to which the building product use ban applies. (4) A general building safety notice may be given— (a) to all councils or to any councils that the Secretary considers appropriate, and (b) to the Commissioner of Fire and Rescue NSW, if the safety risk posed by the use of the building product relates to a risk of fire. (5) The Secretary may publish a general building safety notice on the internet, but only if the Secretary considers that it is in the public interest to do so. 20 Power of relevant enforcement authority to order rectification (1) A relevant enforcement authority may make an order under this section (a building product rectification order) in respect of a building. (2) A building product rectification order is an order that requires the owner of a building to do such things as are necessary for either or both of the following purposes— (a) to eliminate or minimise a safety risk posed by the use in the building of a building product to which a building product use ban applies, (b) to remediate or restore the building following the elimination or minimisation of the safety risk. (3) A building product rectification order may be made only if the relevant enforcement authority is satisfied, on reasonable grounds, that the building is an affected building. (4) For the purposes of any proceedings relating to a building product rectification order or proposed building product rectification order, an affected building notice or a general building safety notice is evidence that the use in a building of the building product specified in the notice poses a safety risk of a kind specified by the Secretary in that notice. (5) However, a relevant enforcement authority may make a building product rectification order in respect of a building whether or not the relevant enforcement authority has received an affected building notice or general building safety notice in respect of the building. Note— For example, a council may make a building product rectification order if, as a result of its own investigations, it identifies an affected building. 21 Statutory provisions applicable to building product rectification order (1) The Environmental Planning and Assessment Act 1979, and any regulations under that Act, apply to a building product rectification order as if the order were a development control order, except as provided by subsection (3). (2) (Repealed) (3) If a building is not a building within the meaning of the Environmental Planning and Assessment Act 1979, the Local Government Act 1993, and any regulations under that Act, apply to a building product rectification order in respect of the building as if the order were an order made under section 124 of the Local Government Act 1993. (4) The regulations may modify the application of any of the statutory provisions referred to in subsection (1) or (3) to or in respect of a building product rectification order. (5) The Minister is not to recommend the making of a regulation that modifies the operation of any of those statutory provisions in respect of a building product rectification order except with the concurrence of the Minister administering the relevant statutory provisions concerned. 22 Appeals concerning orders (1) A council must give notice to the Secretary of an appeal against a building product rectification order made by the council. (2) The Secretary is entitled to appear and be heard on an appeal against a building product rectification order. (3) The Land and Environment Court may, on hearing an appeal against a building product rectification order, order the Secretary to amend or revoke an affected building notice or a general building safety notice (without limiting any other powers the Court has on an appeal). 23 Council to report to Secretary on response (1) The Secretary may, by notice in writing served on a council that has been given an affected building notice, require the council to provide a report to the Secretary about the steps it has taken in relation to the affected building notice. (2) The report is to indicate or include the following— (a) whether the council has made a building product rectification order in respect of the building the subject of the affected building notice, (b) whether the order has been complied with or the progress that has been made towards compliance with the order, (c) any other steps that are being taken by the council to ensure that the building the subject of the affected building notice is made safe, (d) such other matters as may be prescribed by the regulations. (3) If the council has not made a building product rectification order in respect of the building the subject of the affected building notice, the report is to set out the council's reasons for not making the order. (4) The report is to be provided to the Secretary within the period specified by the Secretary in the notice (being a period of not less than 30 days after the notice is served). (5) The Secretary may require more than one report to be provided under this section in respect of a building. (6) The Secretary may publish a report provided by the council under this section on the internet. (7) The Secretary may withhold from publication any information in the report that identifies the particular building that is the subject of the affected building notice. 24 Amendment or revocation of notices (1) The Secretary may amend or revoke an affected building notice or a general building safety notice by issuing a further notice. (2) The Secretary is to give notice of the amendment or revocation of an affected building notice to each of the following— (a) the owner or owners of the building, (b) the occupier or occupiers of the building, (c) the council for the area in which the building is located, (d) any relevant enforcement authority for the building to whom the affected building notice was given, (e) the Commissioner of Fire and Rescue NSW, if the affected building notice was given to the Commissioner. (3) The Secretary is to give notice of the amendment or revocation of a general building safety notice to each of the following— (a) any council that was given the general building safety notice, (b) the Commissioner of Fire and Rescue NSW, if the general building safety notice was given to the Commissioner. (4) An affected building notice or general building safety notice ceases to be in force if it is revoked. 25 Revocation of affected building notice (1) The Secretary must revoke an affected building notice if the Secretary is satisfied that— (a) the building concerned has been made safe, or (b) the building is not an affected building. (2) The Secretary may revoke an affected building notice on the application of an owner of the building or on the Secretary's own initiative. 26 When a building is "made safe" For the purposes of this Part, a building is made safe if the safety risk that is posed by the use of a building product to which a building product use ban applies, as identified by the Secretary in an affected building notice, is eliminated or, if it is not reasonably practicable to eliminate the safety risk, is minimised as far as practicable. Part 5 Building product undertakings 27 Secretary may accept undertakings (1) The Secretary may accept a written undertaking (a building product undertaking) given by a person if the person has contravened, or the Secretary suspects that the person has contravened or is likely to contravene, a requirement imposed by or under this Act. (2) The giving of an undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention, suspected contravention or likely contravention to which the undertaking relates. 28 When building product undertaking takes effect A building product undertaking takes effect and becomes enforceable when notice of the Secretary's decision to accept the undertaking is given to the person who made the undertaking or on a later date specified by the Secretary. 29 Contravention of building product undertaking (1) A person must not contravene a building product undertaking given by the person that is in effect. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or (b) in any other case—2,000 penalty units and, in the case of a continuing offence, a further penalty of 400 penalty units for each day the offence continues. (2) An offence against subsection (1) is an executive liability offence. 30 Order requiring compliance with building product undertaking (1) The Secretary may apply to the Supreme Court for an order if a person contravenes a building product undertaking. (2) If the Court is satisfied that the person who gave the building product undertaking has contravened the undertaking, the Court may make one or both of the following orders— (a) an order directing the person to comply with the undertaking, (b) an order discharging or varying the undertaking. (3) In addition to the orders referred to in subsection (2), the Court may make any other order that the Court considers appropriate in the circumstances, including orders directing the person to pay to the State— (a) the costs of the proceedings, and (b) the reasonable costs of the Secretary in monitoring compliance with the building product undertaking in the future. (4) Nothing in this section affects the liability for an offence of a person who contravenes a building product undertaking. 31 Withdrawal or variation of building product undertaking (1) A person who gives a building product undertaking may, at any time, with the written agreement of the Secretary— (a) withdraw the undertaking, or (b) vary the undertaking. (2) The Secretary may, at any time— (a) withdraw the Secretary's acceptance of a building product undertaking, by notice in writing served on the person who gave the undertaking, or (b) vary a building product undertaking (but only with the written agreement of the person who gave the undertaking). (3) The provisions of a building product undertaking cannot be varied to provide for a different alleged contravention. (4) A building product undertaking ceases to have effect if— (a) it is withdrawn by the person who made it (in accordance with this section), or (b) acceptance of the undertaking is withdrawn by the Secretary. 32 Proceedings for alleged contravention (1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a building product undertaking is in effect in relation to that contravention. (2) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made a building product undertaking in relation to that contravention and has completely discharged the building product undertaking. (3) The Secretary may accept a building product undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised. (4) If the Secretary accepts a building product undertaking before the proceedings are finalised, the Secretary must take all reasonable steps to have the proceedings discontinued as soon as possible. 33 Register of undertakings (1) The Secretary is to maintain a register that includes the following in relation to each building product undertaking accepted under this Part— (a) a copy of the undertaking, (b) a copy of each variation of the undertaking, (c) the name and address of the person who gave the undertaking, (d) the date of the undertaking. (2) The register is to be amended to remove information relating to undertakings that have been withdrawn. (3) The register is to be made available, free of charge, on a NSW Government website. (4) (Repealed) Part 6 Investigation and assessment powers of Secretary Division 1 Building product investigations 34 Building product investigations (1) The Secretary may authorise an investigation for