As a response to the concerns about combustible cladding, the Queensland Government passed the Building and Construction Legislation (Non-Conforming Building Products -Chain of Responsibility and Other Matters) Amendment Act (NCBP Act) 2017 on 24 August.
On 1 October 2018, the Building and other Legislation (Cladding) Amendment Regulation 2018 came into effect compelling building owners to complete the combustible cladding checklist to determine the type of material used on their building and whether any further assessment is required.
The Queensland Government has announced new legislation to increase accountability and disciplinary action for the supply and use of non-conforming building products.
What are non-conforming building products?
Non-Conforming Building Products (NCBPs) are building products and materials that are not safe, not of acceptable quality, do not meet Australian standards, or are otherwise not fit for their intended purpose.
You cannot rely on product technical material. In some cases, product technical material may contain false or misleading statements.
This Australia-wide issue is very complex, and affects a plethora of industries including manufacturing, importation, retail and construction.
The NCBP Act applies to individuals or corporations who are "persons in the chain of responsibility" for building products, and this includes designers, manufacturers, importers or suppliers and installers.
The NCBP Act casts an important onus on senior executives deemed to be 'controlling minds' in the chain of responsibility.
The NCBP Act puts a duty at each stage of the building product supply chain to:
ensure that NCBP’s are not used;
pass information about the suitability and use of a building product on to the next stage of the chain;
notify the Queensland Building and Construction Commission (QBCC) of suspected non-conforming building products.
Policed by QBCC
The duty will be policed by the QBCC, which the NCBP Act has given powers to enter, inspect, examine and test building products.
The QBCC will be able to impose very heavy fines and other consequences for breaches, including cancellation of building licences and stop-work or recall orders.
New duties of care and new offences
WARNING - Two key changes in the NCPB Act and Regulations are the imposition of duties on building supply chain participants and the creation of new offences.
The imposition of new duties
There is now one primary duty, applicable to all participants in the supply chain, and a range of additional duties applying to specific to particular roles within the supply chain.
Primary duty
The primary duty is that each person involved in the chain of responsibility must ensure, insofar as reasonably practicable, that a product is not a NCBP.
The scope of the primary duty is dependent upon where that duty falls in terms of the stage of the supply chain.
Do not assume risks ignorance is no excuse in the eyes of the law and the QBCC is here to set punitive examples to illuminate illegal conduct.
Can your business afford $130,550.00 in fines?
Merlo Law is here to help you avoid serious criminal and punitive consequences in running your business. Get Advice now or pay the price later and be held out as a public example by the QBCC.
Additional duties
Additional duties now operate in conjunction with the overarching primary duty.
The additional duties will provide further guidance as to how a person’s primary duty is to be discharged.
These duties create the need for significant changes in your business – engage the best, engage John Merlo today to assist your business before you get caught by the new laws and regulations.
New Offences
The penalty unit value in Queensland is $130.55 (current from 1 July 2018).
The amending legislation introduces a number of new offences into the QBCC Act.
These include:
An offence, carrying a maximum of 1000 penalty points $130,550.00 - if a breach of any of the duties discussed occur;
an offence, carrying a maximum of 1000 penalty points $130,550.00 - if representations are made about the intended use of the product does not comply with requirements for representations prescribed by regulations; and
an offence, carrying a maximum of 50 penalty points - if a person in the chain of responsibility has a reasonable suspicion or knowledge that a building product is a non-conforming building product for an intended use and does not give notice to the Commission.
Notifiable incidents
An additional duty is imposed on all persons in the chain of responsibility to notify the QBCC of any ‘notifiable incident’.
Notifiable incidents include death, serious injury, or an incident that exposes any person to serious injury or illness.
Breaching this reporting obligation carries a maximum penalty of 100 penalty units.
This publication considers legal and technical issues in a general way. It is not intended to be legal advice. Any legal advice is qualified on the basis that the reader should immediately confirm the information relied upon with Merlo Law. We look forward to being of assistance.
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