2017
2017
2017-12-19
act
government
publicgeneral
act.reprint
act-1987-015
partuncommenced
2017-11-16
2017-11-16
1
2017
none
act-2017-069
76f61b5d-25d0-4d5a-9e5f-380cefddb274
92df711b-b492-4e04-9efe-599312ad37e8
Does not include amendments
by:
Sch 2.1 to this Act (not commenced — to
commence on the commencement of Sch 9.1 [2] to the Environmental Planning and Assessment Amendment Act
2017 No 60)
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
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 1Preliminary
1Name of
Act
This Act is the Building Products
(Safety) Act 2017.
2Commencement
(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.
3Definitions
(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.
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:
(a)
the Commissioner for Fair Trading, Department of
Finance, Services and Innovation, or
(b)
if there is no person employed as Commissioner
for Fair Trading—the Secretary of the Department of Finance, Services
and Innovation.
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 2Key
concepts
4Safety 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.
5Building
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.
6Building
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.
7Use 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.
8Building
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 3Building product use
bans
9Secretary 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.
10Reasons 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.
11Duration 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.
12Amendment 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).
13Secretary 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.
14Notice 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.
15Offence 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 4Identification and
rectification of affected buildings
16Definitions
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 person or body that may give orders under
section 121B of the Environmental Planning and Assessment
Act 1979 in relation to 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.
17Affected
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.
18Identification 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.
19General 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.
20Power 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.
21Statutory 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 in respect of
a building as if the order were an order made under section 121B of that Act,
except as provided by subsection (3).
(2)
A reference in section 121ZP of the Environmental Planning and Assessment Act
1979 to orders in force under Division 2A of Part 6 of
that Act is taken to include a reference to building product rectification
orders and affected building notices that are in force.
(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), (2) 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.
22Appeals 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).
23Council 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.
24Amendment 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.
25Revocation 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.
26When 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 5Building product
undertakings
27Secretary 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.
28When 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.
29Contravention 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.
30Order 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.
31Withdrawal 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.
32Proceedings 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.
33Register 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 kept in the head office of
the Department of Finance, Services and Innovation and is to be made available
for public inspection during ordinary business hours free of
charge.
(4)
The register may be made available in electronic
form.
Part 6Investigation and assessment
powers of Secretary
Division 1Building product
investigations
34Building product
investigations
(1)
The Secretary may authorise an investigation for
any or all of the following purposes:
(a)
to ascertain whether a use of a building product
in a building is unsafe,
(b)
to ascertain the location of any building in
which a building product has been used in a way that is or may be
unsafe.
(2)
An investigation authorised under this section is
a building
product investigation.
Note—
Authorised officers may exercise their
information gathering powers under Part 7 for the purposes of a building
product investigation.
35Consultation
(1)
The Secretary must, if practicable, give the
manufacturer of the building product that is the subject of the building
product investigation notice of the building product investigation and an
opportunity to make submissions in relation to the building product
investigation.
(2)
If the building product is a foreign building
product, notice may be given to an Australian importer or supplier of the
building product instead of the manufacturer.
(3)
The Secretary is taken to comply with the
requirement to give notice under this section if the Secretary publishes on
the internet a notice that:
(a)
advises of the Secretary’s intention to
conduct the building product investigation, and
(b)
invites interested persons to make submissions in
relation to the investigation.
36Publication and use of results
of building product investigation
(1)
The Secretary may impose or amend a building
product use ban, as the Secretary considers appropriate, to reflect the
results of a building product investigation.
(2)
The Secretary may publish notice of the results
of a building product investigation.
(3)
The Secretary must publish on the internet notice
of the results of a building product investigation if the Secretary has
published notice of the Secretary’s intention to conduct the building
product investigation.
(4)
If the Secretary publishes the results of a
building product investigation, the Secretary may, if the Secretary considers
it appropriate:
(a)
identify any building or class of buildings in
which the building product has been used, and
(b)
identify how the building product has been used
in a building or class of buildings.
37Other powers of investigation
not limited
This Division does not limit the functions of an
authorised officer under Part 7.
Division 2Product
assessments
38Definitions
In this Division:
product
assessment means an assessment that is conducted for the
purpose of assessing whether any reasonably foreseeable use of a building
product in a building is unsafe.
product
assessment report means a report about a product
assessment.
39Secretary may require product
assessment
(1)
The Secretary may, by order in writing served on
a person, require the person:
(a)
to conduct a product assessment in relation to a
building product, and
(b)
to provide to the Secretary a product assessment
report about that product assessment.
(2)
The Secretary may require a person to conduct a
product assessment in relation to a building product only if:
(a)
the Secretary has reasonable grounds to suspect
that a foreseeable use of the building product is unsafe,
and
(b)
the person required to conduct the product
assessment is the manufacturer or a supplier of the building product,
and
(c)
the Secretary is satisfied that it is reasonable
in the circumstances to require the manufacturer or supplier concerned to
conduct the product assessment.
(3)
The order is to specify the requirements of the
product assessment and product assessment report, including the time frame in
which the product assessment is to be conducted and the product assessment
report provided.
(4)
The time frame must be reasonable having regard
to the requirements of the product assessment.
(5)
Without limiting subsection (3), the requirements
of the product assessment may specify the following:
(a)
the tests or inspections that must be conducted
for the purposes of the product assessment,
(b)
the qualifications or experience required in
relation to the persons who conduct those tests or
inspections.
(6)
A product assessment may be required whether or
not a building product investigation into the building product is being
conducted.
(7)
A person who, without reasonable excuse, fails to
comply with a requirement made of the person under this section is guilty of
an offence.
Maximum penalty: 100 penalty
units.
(8)
A person who includes in any product assessment
report provided to the Secretary any information that the person knows is
false or misleading in a material particular is guilty of an
offence.
Maximum penalty: 100 penalty
units.
40Taking of required actions and
recovery of costs
(1)
If a person required to conduct a product
assessment (the liable
person) fails to conduct that product assessment, or to
provide a product assessment report, to the satisfaction of the Secretary, the
Secretary may take any action that is reasonably necessary to conduct or
complete that product assessment.
(2)
The Secretary may, by notice in writing served on
the liable person, require the person to pay a fee for action taken under this
section.
(3)
The fee is to be no more than is reasonable to
cover the costs and expenses incurred in connection with the
action.
(4)
Costs and expenses incurred include costs and
expenses incurred by or on behalf of any government
agency.
(5)
The fee is recoverable by the Secretary as a debt
payable by the liable person in any court of competent
jurisdiction.
(6)
This section does not prevent the taking of
proceedings for an offence of contravening a requirement to conduct, or report
on, a product assessment.
41Publication and use of product
assessment report
(1)
The Secretary may, having regard to a product
assessment report provided under this Division, impose or amend a building
product use ban as the Secretary considers appropriate.
(2)
The Secretary may publish a product assessment
report provided under this Division.
(3)
A product assessment report is admissible in any
legal proceedings under this Act and in any legal proceedings in connection
with a building product rectification order.
Part 7Investigation powers of
authorised officers
Division 1Preliminary
42Purposes for which functions
under Part may be exercised
(1)
An authorised officer may exercise the functions
conferred by this Part for any of the following purposes:
(a)
to assess whether a reasonably foreseeable use of
a building product in a building is unsafe,
(b)
to ascertain the location of any buildings in
which a building product that is the subject of a building product use ban has
been used for a use that is prohibited by the building product use
ban,
(c)
for the purposes of a building product
investigation or a product assessment,
(d)
for the purpose of investigating and monitoring
compliance with the requirements imposed by or under this
Act,
(e)
for the purpose of obtaining information or
records for purposes connected with the administration of this
Act,
(f)
for the purpose of administering or executing
this Act (including any instrument made under this
Act).
(2)
In this Part, a reference to an authorised purpose is a reference to
any purpose referred to in subsection (1).
Division 2Information gathering
powers
43Exercise in conjunction with
other powers
A power conferred by this Division may be
exercised whether or not a power of entry under Division 3 is being
exercised.
44Powers of authorised officers
to require information and documents
(1)
An authorised officer may, by notice in writing
given to a person, require the person to furnish to the officer such
information or documents (or both) as the officer may require for an
authorised purpose.
(2)
A notice under this Division must specify the
manner in which information or documents are required to be furnished and a
reasonable time by which the information or documents are required to be
furnished.
(3)
A notice under this Division may only require a
person to furnish existing documents that are in the person’s possession
or that are within the person’s power to obtain
lawfully.
(4)
The person to whom any document is furnished
under this Division may take copies of it.
(5)
If any document required to be furnished under
this Division is in electronic, mechanical or other form, the notice requires
the record to be furnished in written form, unless the notice otherwise
provides.
45Power of authorised officers
to require answers
(1)
An authorised officer may require a person whom
the authorised officer suspects on reasonable grounds to have knowledge of
matters in respect of which information is reasonably required for an
authorised purpose to answer questions in relation to those
matters.
(2)
An authorised officer may, by notice in writing,
require a corporation to nominate, in writing within the time specified in the
notice, a director or officer of the corporation to be the corporation’s
representative for the purpose of answering questions under this
section.
(3)
Answers given by a person nominated under
subsection (2) bind the corporation.
(4)
An authorised officer may, by notice in writing,
require a person to attend at a specified place and time to answer questions
under this section if attendance at that place is reasonably required in order
that the questions can be properly put and answered.
(5)
The place and time at which a person may be
required to attend under subsection (4) is to be:
(a)
a place and time nominated by the person,
or
(b)
if the place and time nominated is not reasonable
in the circumstances or a place and time is not nominated by the person, a
place and time nominated by the authorised officer that is reasonable in the
circumstances.
46Recording of
evidence
(1)
An authorised officer may cause any questions and
answers to questions given under this Division to be recorded if the officer
has informed the person who is to be questioned that the recording is to be
made.
(2)
A recording may be made using sound recording
apparatus or audio visual apparatus, or any other method determined by the
authorised officer.
(3)
A copy of any such recording must be provided by
the authorised officer to the person who is questioned as soon as practicable
after it is made.
(4)
A recording may be made under this section
despite the provisions of any other law.
Division 3Power to enter
premises
47Powers of authorised officers
to enter premises
(1)
An authorised officer may enter any
premises:
(a)
at any reasonable time, or
(b)
at any time, if the authorised officer reasonably
believes it is necessary to do so as a matter of
urgency.
(2)
A power to enter premises conferred by this Act
authorises entry by foot or vehicle or by any other
means.
(3)
Entry to any premises may be effected with or
without the authority of a search warrant, subject to subsection
(4).
(4)
This section does not empower an authorised
officer to enter any part of premises used only for residential purposes
except with the permission of the occupier or with the authority of a search
warrant.
48Power to require occupier to
provide assistance
An authorised officer proposing to exercise a
power of entry under this Division may, by notice in writing given to the
owner or occupier of the premises, require the owner or occupier to provide
such reasonable assistance and facilities as are specified in the notice
within a specified time and in a specified manner.
Division 4Functions that can be
exercised on premises
49Powers that can be exercised
on premises
(1)
An authorised officer may, at any premises
lawfully entered, do anything that in the opinion of the authorised officer is
necessary to be done for an authorised purpose, including (but not limited to)
the things specified in subsection (2).
(2)
An authorised officer may do any or all of the
following:
(a)
examine and inspect any
thing,
(b)
take and remove samples of a
thing,
(c)
make any examinations, inquiries or tests that
the authorised officer considers necessary,
(d)
take any photographs, films or other recordings
that the authorised officer considers necessary,
(e)
require documents to be produced for
inspection,
(f)
examine and inspect any
documents,
(g)
copy any documents,
(h)
do anything else authorised by or under this
Act.
(3)
The power to examine and inspect any thing
includes a power to use reasonable force to break open or otherwise access a
container or other thing being used, or suspected of being used, to hold or
contain another thing.
(4)
The power to test a thing includes a power to
destructively test a thing or a sample of a thing, if that is a reasonable
test in the circumstances.
(5)
The power to do a thing under this section
includes a power to arrange for that thing to be done (whether at the premises
or elsewhere).
(6)
A power to do something under this section in
relation to a thing may be exercised without the consent of the owner of the
thing.
50Search
warrants
(1)
An authorised officer may apply to an eligible
issuing officer for the issue of a search warrant if the authorised officer
believes on reasonable grounds that:
(a)
a requirement imposed by or under this Act is
being or has been contravened at any premises, or
(b)
entry to the premises is necessary to enable the
authorised officer to exercise functions for an authorised
purpose.
(2)
An eligible issuing officer to whom such an
application is made may, if satisfied that there are reasonable grounds for
doing so, issue a search warrant authorising an authorised officer named in
the warrant to do any of the following:
(a)
to enter the premises specified in the
warrant,
(b)
to exercise any function of an authorised officer
under this Act.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)
In this section:
eligible
issuing officer has the same meaning as it has in Part 5 of
the Law Enforcement (Powers and Responsibilities) Act
2002.
51Requiring
assistance
(1)
An authorised officer may require the owner or
occupier of premises, or any person in or on premises (other than a public
place), to provide any reasonable assistance that the authorised officer
specifies for the purposes of exercising the authorised officer’s
functions under this Division in relation to those
premises.
(2)
The requirement may be made in the form of a
direction that is given orally to the person or by notice in writing served on
the person.
52Care to be
taken
(1)
In the exercise of a power of entering or
searching premises under this Division, or doing anything else on premises
under this Act, an authorised officer must do as little damage as
possible.
(2)
In particular, an authorised officer must
exercise the functions conferred by this Division in a way that, as far as is
reasonably practicable, avoids compromising the integrity of any building or
building work in relation to which the functions are
exercised.
(3)
In subsection (2), compromising the integrity of
a building or building work includes damaging the building or building work or
exposing the building or building work to damage or
deterioration.
53Compensation
(1)
The Secretary must compensate all interested
parties for damage caused by an authorised officer in exercising a power to
enter premises, or a power to break open or otherwise access a thing for the
purposes of examination or inspection, but not any damage caused by the
exercise of any other power.
(2)
Subsection (1) does not apply if the occupier
obstructed or hindered the authorised officer in the exercise of the power
concerned.
Division 5General
54Offence of failing to comply
with requirement made by authorised officer
A person who fails to comply with a requirement
made of the person by an authorised officer exercising a power conferred by
this Part is guilty of an offence.
Maximum penalty: 100 penalty
units.
55Offence of furnishing false or
misleading information
A person who furnishes any information, or does
any other thing in purported compliance with a requirement under this Part,
knowing that it is false or misleading in a material particular is guilty of
an offence.
Maximum penalty: 100 penalty
units.
56Defence to
contravention
In proceedings in which a person is charged with
an offence of failing to comply with a requirement made of the person by an
authorised officer exercising a function conferred by this Part, it is a
defence to the prosecution of the offence if the person charged proves that
the person had a reasonable excuse for the failure
concerned.
57Warning to be
given
A person is not guilty of an offence of failing
to comply with a requirement under this Part to furnish information or
documents or to answer a question unless the person was warned on that
occasion that a failure to comply is an offence.
58Revocation or variation of
notices
(1)
A notice given under this Part may be revoked or
varied by a subsequent notice or notices.
(2)
Without limiting subsection (1), a notice may be
varied by extending the time for complying with the
notice.
(3)
A notice may be revoked or varied by the
Secretary or by any authorised officer.
Part 8Offences and other
proceedings
Division 1Liability for
offences
59Liability of directors etc for
corporate offences—executive liability
(1)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: 200 penalty
units.
(2)
For the purposes of this section, an executive
liability offence is an offence against a provision of this
Act that is designated by a provision of this Act to be an executive liability
offence.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
60Liability of directors etc for
offences by corporation as an accessory
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation, whether or not it is an executive liability
offence.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
61Offence by
corporation—general liability of directors
(1)
If a corporation contravenes any provision of
this Act or the regulations, each person who is a director of the corporation
or who is concerned in its management is to be taken to have contravened the
same provision if the person knowingly authorised or permitted the
contravention.
(2)
A person may be proceeded against and convicted
under a provision pursuant to subsection (1) whether or not the corporation
has been proceeded against or convicted under that
provision.
62Continuing
offences
(1)
A person who is guilty of an offence because the
person contravenes a requirement made by or under this Act or the regulations
(whether the requirement is imposed by a notice or otherwise) to do or cease
to do something (whether or not within a specified period or before a
particular time):
(a)
continues, until the requirement is complied with
and despite the fact that any specified period has expired or time has passed,
to be liable to comply with the requirement, and
(b)
is guilty of a continuing offence for each day
the contravention continues.
(2)
This section does not apply to an offence if the
relevant provision of this Act or the regulations does not provide for a
penalty for a continuing offence.
(3)
This section does not apply to the extent that a
requirement of a notice is revoked.
63Continuing effect of
requirements
(1)
A requirement imposed by or under this Act that
specifies a time by which, or a period within which, the requirement must be
complied with continues to have effect until the requirement is complied with
even though the time has passed or the period has
expired.
(2)
A requirement that does not specify a time by
which, or period within which, the requirement must be complied with continues
to have effect until the requirement is complied with.
(3)
This section does not apply to the extent that
any requirement imposed by or under this Act is revoked.
(4)
Nothing in this section affects the powers of the
Secretary with respect to the enforcement of any requirement imposed by or
under this Act.
64Proof of reasonable
excuse
The onus of proof of reasonable excuse in any
proceedings for an offence against this Act or the regulations lies on the
person charged with the offence.
65Penalty
notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
Division 2Proceedings for
offences
66Proceedings for
offences
(1)
Proceedings for an offence against this Act or
the regulations may be taken and prosecuted only by the Secretary or, in the
name of the Secretary, by a person acting with the authority of the
Secretary.
(2)
Proceedings for an offence against this Act or
the regulations may be dealt with:
(a)
summarily before the Local Court,
or
(b)
summarily before the District Court in its
summary jurisdiction.
(3)
If proceedings are brought in the Local Court,
the maximum monetary penalty that the Local Court may impose for the offence
is 100 penalty units, despite any higher maximum monetary penalty provided in
respect of the offence.
(4)
In proceedings for an offence against this Act or
the regulations, an authority to prosecute purporting to have been signed by
the Secretary is evidence of that authority without proof of the signature of
the Secretary.
67Time within which offence
proceedings may be commenced
(1)
Proceedings for an offence against this Act or
the regulations may be commenced within but not later than 2 years after the
date on which the offence is alleged to have been
committed.
(2)
Proceedings for an offence against this Act or
the regulations may, with leave of the court, be commenced after the end of
the period referred to in subsection (1) if they are commenced within but not
later than 2 years after the date on which evidence of the alleged offence
first came to the attention of an authorised officer.
(3)
If subsection (2) is relied on for the purpose of
commencing proceedings for an offence, the court attendance notice or
application must contain particulars of the date on which evidence of the
alleged offence first came to the attention of an authorised officer and need
not contain particulars of the date on which the offence was committed. The
date on which evidence first came to the attention of an authorised officer is
the date specified in the court attendance notice or application, unless the
contrary is established.
(4)
This section applies despite anything in the
Criminal Procedure Act 1986 or any other
Act.
(5)
In this section:
evidence of an offence means
evidence of any act or omission constituting the
offence.
68Enforcement provisions of ACL
that extend to building product offences
(1)
The following provisions of the ACL apply to an
offence against Part 3 of this Act in the same way as they apply to a
contravention of, or an offence against, a provision of Chapter 4 of the
ACL:
(a)
section 207 (Reasonable mistake of
fact),
(b)
section 208 (Act or default of another person
etc),
(c)
section 209 (Publication of advertisements in the
ordinary course of business).
(2)
The following provisions of the ACL apply to an
offence against Part 3 of this Act in the same way as they apply to a
contravention of, or an offence against, a provision of Chapter 4 of the
ACL:
(a)
section 214 (Penalties for contraventions of the
same nature etc),
(b)
section 215 (Penalties for previous
contraventions of the same nature etc).
(3)
This section is subject to the
regulations.
Division 3Other court
orders
69Compensation orders by court
on conviction of person
(1)
If a person is convicted by a court of an offence
against this Act or the regulations and the court is satisfied that another
person has suffered loss or damage as a result of the conduct of the convicted
person, the court may, in addition to any penalty it may impose in respect of
the offence, order the convicted person to compensate the other person for the
loss or damage.
(2)
The compensation that the Local Court may order
to be paid under this section is not to exceed the jurisdictional limit of the
Local Court when sitting in its General Division within the meaning of the
Local Court Act
2007.
(3)
The regulations may make further provision for
the awarding of compensation under this section, including by limiting the
types of loss or damage in respect of which compensation may be
awarded.
(4)
In this section, a reference to the conviction of
a person includes a reference to the making of an order in respect of a person
under section 10 of the Crimes (Sentencing Procedure) Act
1999.
70Supreme Court
injunctions
(1)
The Supreme Court may grant an injunction in such
terms as the Court determines to be appropriate if satisfied that a person has
engaged, or is proposing to engage, in conduct that constitutes, or would
constitute:
(a)
a contravention of a provision of this Act,
or
(b)
attempting to contravene such a provision,
or
(c)
aiding, abetting, counselling or procuring a
person to contravene such a provision, or
(d)
inducing, or attempting to induce, whether by
threats or promises or otherwise, a person to contravene such a provision,
or
(e)
being in any way, directly or indirectly,
knowingly concerned in, or party to, the contravention by a person of such a
provision, or
(f)
conspiring with others to contravene such a
provision.
(2)
The Supreme Court may grant an injunction under
this section only on the application of the Secretary made with the consent of
the Minister.
(3)
The power of the Supreme Court to grant an
injunction restraining a person from engaging in conduct may be
exercised:
(a)
whether or not it appears to the Court that the
person intends to engage again, or to continue to engage, in conduct of that
kind, and
(b)
whether or not the person has previously engaged
in conduct of that kind, and
(c)
whether or not there is an imminent danger of
substantial damage to any person if the first-mentioned person engages in
conduct of that kind.
(4)
The power of the Supreme Court to grant an
injunction requiring a person to do an act or thing may be exercised:
(a)
whether or not it appears to the Court that the
person intends to fail again, or to continue to fail, to do that act or thing,
and
(b)
whether or not the person has previously failed
to do that act or thing, and
(c)
whether or not there is an imminent danger of
substantial damage to any person if the first-mentioned person fails to do
that act or thing.
(5)
An injunction may be granted under this section
as an interim injunction without an undertaking being required as to damages
or costs or may be granted as a permanent injunction.
Division 4Evidence
71Evidence
Sections 80–83 of the Fair
Trading Act 1987 apply to proceedings under this Act in
the same way as they apply to proceedings under that
Act.
72Evidentiary
certificates
(1)
A certificate that is issued by the Secretary
that states any of the following matters is admissible in any legal
proceedings (whether or not proceedings under this Act) and is evidence of the
matters so stated:
(a)
that an instrument was made, issued or given
under this Act on a specified day by a specified person,
(b)
the terms of any instrument made, issued or
given, or purported to be made, issued or given, under this Act, as in force
on a specified day or during a specified period,
(c)
the manner in which the instrument was made,
issued or given,
(d)
that an instrument made, issued or given under
this Act was amended or revoked, the day on which it was amended or revoked,
and the terms of any amendment,
(e)
that a function was delegated under this Act,
including the following:
(i)
the person or persons to whom the function was
delegated,
(ii)
the date of the delegation,
(iii)
the period during which the delegation had
effect,
(iv)
the terms of the delegation, including any
restrictions or limitations on the delegation,
(f)
that a person who made, issued or gave or
purported to make, issue or give, an instrument under this Act was the holder
of a specified office on a specified day or during a specified
period,
(g)
that a person was, on a specified day or during a
specified period, an authorised officer under this Act,
(h)
the terms of, and any conditions of or
limitations on, a person’s appointment as an authorised officer under
this Act.
(2)
For the purposes of this section, a document
purporting to be a certificate under this section is, unless the contrary is
proved, taken to be such a certificate.
(3)
In this section:
given includes
served.
instrument includes a notice or
direction.
Secretary includes a delegate of the
Secretary.
73Opinion of
Secretary
In any legal proceedings, it is to be presumed,
unless the contrary is proved, that the opinion of the Secretary necessary for
any of the purposes of this Act was duly formed.
Part 9Authorised
officers
74Appointment of authorised
officers
(1)
The Secretary may, by instrument in writing,
appoint any person (including a class of persons) as an authorised officer for
the purposes of this Act.
(2)
An appointment may apply to a specified person or
to persons of a specified class.
(3)
An appointment may be unconditional, or subject
to conditions or limitations.
(4)
An appointment has effect for the period
specified in the instrument of appointment or, if no period is specified,
until revoked by the Secretary.
(5)
The Secretary may, by instrument in writing,
revoke or amend an appointment under this section at any
time.
(6)
If an appointment of an authorised officer is
made by reference to a particular office, the person appointed ceases to be an
authorised officer if the person ceases to hold that
office.
75Persons eligible for
appointment as authorised officers
(1)
Each of the following persons is eligible to be
appointed as an authorised officer for the purposes of this Act:
(a)
an employee of the Department of Finance,
Services and Innovation,
(b)
an employee of the Environment Protection
Authority,
(c)
an employee of the Department of Planning and
Environment,
(d)
an employee of Fire and Rescue
NSW,
(e)
a member of a permanent fire brigade within the
meaning of the Fire Brigades Act
1989,
(f)
an employee of a council who is an authorised
person under the Local Government Act
1993,
(g)
a person of a class prescribed by the
regulations.
(2)
A police officer is taken to be an authorised
officer under this Act and may exercise all of the functions of an authorised
officer under this Act.
(3)
Nothing in this Act limits the functions of a
person who is an authorised officer under any other Act or
law.
76Powers subject to instrument
of appointment
(1)
An authorised officer may exercise the functions
of an authorised officer under this Act, subject to any conditions or
limitations specified in the officer’s instrument of
appointment.
(2)
Nothing in this Act authorises or requires an
authorised officer to act in contravention of the conditions or limitations
specified in the officer’s instrument of
appointment.
77Issue of
identification
(1)
Every authorised officer is to be provided with
evidence of his or her authority as an authorised
officer.
(2)
This section does not apply to a police
officer.
78Identification to be
produced
(1)
In the course of exercising the functions of an
authorised officer under this Act, the officer must, if requested to do so by
any person affected by the exercise of any such function, produce to the
person the officer’s evidence of authority.
(2)
This section does not apply to a police officer
who is in uniform.
79Use of
assistants
(1)
An authorised officer exercising a function
conferred by or under this Act may exercise the function with the assistance
of any other person the authorised officer considers
necessary.
(2)
The person may accompany an authorised officer
and take all reasonable steps to assist the authorised officer in the exercise
of the authorised officer’s functions under this
Act.
80Offences
(1)
A person who resists or obstructs an authorised
officer in the exercise of the officer’s functions under this Act is
guilty of an offence.
Maximum penalty: 20 penalty
units.
(2)
A person who assaults, abuses or threatens an
authorised officer, or who encourages another person to do so, is guilty of an
offence.
Maximum penalty: 100 penalty units or
imprisonment for 6 months, or both.
(3)
A person who impersonates an authorised officer
is guilty of an offence.
Maximum penalty: 100 penalty units or
imprisonment for 6 months, or both.
Part 10Miscellaneous
81Administrative review of
decisions
(1)
A person who is aggrieved by any of the following
decisions may apply to the Tribunal for an administrative review under the
Administrative Decisions Review Act
1997 of that decision:
(a)
a decision of the Secretary to impose or amend a
building product use ban,
(b)
a decision of the Secretary to issue an affected
building notice,
(c)
a decision of the Secretary to issue a general
building safety notice,
(d)
a decision of the Secretary to refuse to revoke
an affected building notice on application made by the person under this
Act,
(e)
a decision of the Secretary to require a product
assessment to be conducted.
(2)
An application may not be made more than 28 days
after the day on which notice of the decision is published on the internet, or
served on the person, whichever occurs first.
(3)
Division 3 (Internal reviews) of Part 2 of
Chapter 3 of the Administrative Decisions Review Act
1997 does not apply to a decision to impose or amend a
building product use ban under this Act.
82Modification of requirement to
give reasons
(1)
Section 49 of the Administrative
Decisions Review Act 1997 does not apply to a decision to
impose or amend a building product use ban.
Note—
Section 49 of the Administrative
Decisions Review Act 1997 requires an administrator to
provide, on request by an interested person, a statement of reasons for a
reviewable decision. The Secretary is already required by this Act to provide
the Secretary’s reasons for imposing or amending a building product use
ban when notice of the ban or amendment is published.
(2)
If the Tribunal considers that the statement of
reasons for imposing or amending a building product use ban, as set out in the
notice of the ban or amendment, is not an adequate statement of reasons, the
Tribunal may (on the application of an interested person) order the Secretary
to provide an adequate statement of reasons or further particulars of the
reasons for the decision within such time as may be specified in the
order.
(3)
For the purposes of this section, a statement of
reasons for imposing or amending a building product use ban is adequate only
if it sets out the following:
(a)
the findings of the Secretary that led the
Secretary to impose or amend the building product use ban,
(b)
the evidence or other material on which those
findings were based,
(c)
the reasoning process that led the Secretary to
those findings.
(4)
In this section:
interested person means a person who
is entitled to apply for an administrative review of a decision to impose or
amend a building product use ban.
83Enforcement of Act by council
officers
(1)
A power conferred by the Environmental Planning and Assessment Act
1979 on a council investigation officer (within the
meaning of section 119A of that Act) that may be exercised for the purpose of
enabling a council to exercise its functions under that Act may also be
exercised for the purpose of enabling a council to investigate, monitor or
enforce compliance with this Act or a building product rectification
order.
(2)
For that purpose, a reference in Part 6 of the
Environmental Planning and Assessment Act
1979 to an offence against that Act includes a reference
to an offence against this Act.
84Fraudulent
allegations
(1)
A person who, with the intention of obtaining a
financial advantage or causing a financial disadvantage to another
person:
(a)
provides any false or misleading information
about a building product or the use of a building product to the Secretary,
or
(b)
makes an unsubstantiated allegation about a
building product or the use of a building product to the
Secretary,
is guilty of an offence.
Maximum penalty: 100 penalty
units.
(2)
In this section:
obtain a financial advantage and
cause a financial disadvantage have
the same meanings as they have in Part 4AA of the Crimes
Act 1900.
Secretary includes an authorised
officer or any other person exercising functions under this
Act.
unsubstantiated allegation means an
allegation or complaint made without reasonable
grounds.
85Act prevails over National
Construction Code
(1)
A building product use ban may be imposed even if
the building product or the use of the building product concerned complies
with the requirements of the National Construction Code.
(2)
The fact that a building product or the use of a
building product complies with a requirement of the National Construction Code
does not constitute a reasonable excuse for a contravention of a building
product use ban.
(3)
In this section:
National
Construction Code means the National Construction Code
produced and maintained by the Australian Building Codes Board, as in force
from time to time.
86Exchange of
information
(1)
The Secretary may enter into, or approve of, an
arrangement (an information sharing arrangement)
with a relevant agency for the purposes of sharing or exchanging information
held by the Secretary or the agency.
(2)
The information to which an information sharing
arrangement may relate is limited to the following:
(a)
information concerning investigations into and
assessments of the safety of building products,
(b)
any other information about building products and
the use of building products in buildings relevant to the administration of
this Act,
(c)
any other information of a type prescribed by the
regulations.
(3)
Under an information sharing arrangement, the
Secretary and the relevant agency are, despite any other Act or law of the
State, authorised:
(a)
to request and receive information held by the
other party to the arrangement, to the extent that the information is
reasonably necessary to the exercise of the Secretary’s functions under
this Act, the administration or execution of this Act or to protect the safety
of a person or property, and
(b)
to disclose information to the other party, to
the extent that the information is reasonably necessary to the exercise of the
other party’s functions or to prevent or eliminate a safety risk that
may arise from the use of a building product in a
building.
(4)
The Secretary may also (whether as part of an
information sharing arrangement or otherwise):
(a)
refer any matter with respect to building
products or the use of building products to a relevant agency,
and
(b)
receive any such matter from a relevant agency,
and
(c)
conduct a joint investigation into any such
matter with a relevant agency.
(5)
Any such relevant agency is, despite any other
Act or law of the State, authorised to refer such a matter to the Secretary or
to conduct an investigation into the matter jointly with the
Secretary.
(6)
This section does not:
(a)
limit the functions that may be exercised by the
Secretary under other provisions of this Act, or
(b)
require the Secretary to provide information to a
relevant agency only in accordance with an information sharing arrangement
where that information can otherwise be lawfully provided,
or
(c)
limit the operation of any other Act or law under
which a relevant agency is authorised or required to disclose information to
another person or body.
(7)
In this section:
information includes reports,
recommendations, opinions, assessments and operational plans.
law
enforcement agency means:
(a)
the NSW Police Force or the police force of
another State or Territory or of an overseas jurisdiction,
or
(b)
the Australian Federal Police,
or
(c)
the New South Wales Crime Commission,
or
(d)
the Australian Crime Commission,
or
(e)
any other authority or person responsible for the
investigation or prosecution of offences against the laws of the State or of
the Commonwealth, another State or Territory or an overseas
jurisdiction.
relevant
agency means:
(a)
an agency of the State, or of the Commonwealth,
another State or Territory or an overseas jurisdiction, that exercises
functions under an enactment with respect to fair trading or consumer
protection, or
(b)
an agency of the State, or of the Commonwealth,
another State or Territory or an overseas jurisdiction, that exercises
functions under an enactment with respect to residential building work (within
the meaning of the Home Building Act
1989) or plumbing and drainage work (within the meaning of
the Plumbing and Drainage Act 2011),
or
(c)
a council, or
(d)
a law enforcement agency, or
(e)
any other agency of the State or of the
Commonwealth, another State or Territory or an overseas jurisdiction,
or
(f)
any other person or body that exercises
functions, in the public interest, that involve protecting the interests of
consumers, or
(g)
any other person or body prescribed by the
regulations.
87Permits
(1)
The Secretary may, by instrument in writing,
issue a permit to a person that authorises the person to engage in any
specified conduct.
(2)
A person is not guilty of an offence against this
Act or the regulations if the person was authorised to engage in the conduct
alleged to constitute the offence by a permit in force under this Act. A
permit does not authorise a contravention of any other
Act.
(3)
A permit is subject to any conditions imposed by
the Secretary.
(4)
Conditions may be imposed:
(a)
at the time of granting the permit,
or
(b)
at any other time by variation to the
permit.
(5)
The Secretary may, at any time, vary a permit by
notice in writing to the permit holder.
(6)
A variation includes the imposition of new
conditions on a permit, the substitution of a condition, or the omission or
amendment of a condition.
(7)
A person who contravenes a condition of a permit
is guilty of an offence.
Maximum penalty: 100 penalty
units.
(8)
A permit remains in force for the period
specified in the permit, unless sooner revoked by the
Secretary.
(9)
If no period in which the permit remains in force
is specified in the permit, the permit remains in force until it is revoked by
the Secretary.
(10)
The Secretary may, by notice in writing to a
permit holder, revoke a permit:
(a)
if the Secretary is of the opinion that the
permit holder has contravened a provision of this Act or the regulations,
or
(b)
if the Secretary is of the opinion that the
permit holder is not a suitable person to engage in the conduct authorised by
the permit, or
(c)
on any other grounds prescribed by the
regulations.
(11)
The regulations may make further provision for
permits including by providing for any of the following:
(a)
applications for permits or for variations to
permits,
(b)
eligibility criteria for
permits,
(c)
fees for permits.
88Exemptions
(1)
The regulations may exempt from all or any
specified provisions of this Act or any notice or other instrument under this
Act:
(a)
any person or class of persons,
or
(b)
any thing or class of
things.
(2)
An exemption may be conditional or
unconditional.
(3)
An exemption has no effect during any period in
which a condition to which it is subject is not complied
with.
89Delegation by
Secretary
(1)
The Secretary may delegate to any person the
exercise of any of the functions conferred or imposed on the Secretary by or
under this Act (other than this power of delegation or a function conferred by
Part 3).
(2)
The Secretary may delegate a function conferred
by Part 3 to any person employed in the Public Service.
(3)
A delegate of the Secretary may sub-delegate a
function if authorised in writing to do so by the
Secretary.
(4)
If the Secretary delegates functions subject to
conditions or limitations, any sub-delegation by the delegate is taken to be
subject to the same conditions and limitations, and any further conditions or
limitations imposed by the delegate.
90Service of notices
etc
(1)
A notice or direction in writing that is required
or permitted to be given under this Act may be given:
(a)
to a person other than a corporation:
(i)
by giving it to the person,
or
(ii)
by leaving it at the person’s place of
residence with someone who apparently resides there and has apparently reached
the age of 16 years, or
(iii)
by leaving it at the person’s place of
employment or business with someone who is apparently employed there and has
apparently reached the age of 16 years, or
(iv)
by posting it in a letter addressed to the person
at the address last known to the Secretary of the person’s place of
residence, employment or business, or
(v)
by email to an email address specified by the
person for the giving of notices or directions of that kind,
or
(vi)
by any other method authorised by this Act or the
regulations for the giving of notices or directions of that kind,
or
(b)
to a corporation:
(i)
by giving it to the secretary of the corporation,
or any other person concerned in the management of the corporation,
personally, or
(ii)
by leaving it at the corporation’s only or
principal place of business with someone who is apparently employed there and
has apparently reached the age of 16 years, or
(iii)
by posting it in a letter addressed to the
corporation at the address last known to the Secretary of its only or
principal place of business, or
(iv)
by email to an email address specified by the
corporation for the giving of notices or directions of that kind,
or
(v)
by any other method authorised by this Act or the
regulations for the giving of notices or directions of that
kind.
(2)
Subsection (1) (b) does not limit anything in the
Corporations Act 2001 of the
Commonwealth.
(3)
In this section:
give includes
serve.
91Publication on
internet
If this Act requires or permits the Secretary to
publish a notice or other instrument on the internet, the notice or instrument
is to be published on a website that the Secretary considers is appropriate to
cause the notice or instrument to come to the attention of the
public.
92Description of building
products
A notice or other instrument under this Act may
specify a building product to which it applies by reference to a description
of the building product, the batch or brand of the building product, the
manufacturer or supplier of the building product, the period in which the
building product was manufactured or supplied or in any other
way.
93Protection from
liability
(1)
A matter or thing done or omitted to be done by
the Crown or a protected person does not subject the Crown or the protected
person to any action, liability, claim or demand if the matter or thing was
done or omitted to be done in good faith for the purpose of executing any
provision of this Act, the regulations or any instrument made under this
Act.
(2)
No liability is incurred by a person for
publishing in good faith:
(a)
a statement issued in the execution of functions
under this Act, as referred to in subsection (1), or
(b)
a fair report or summary of such a
statement.
(3)
This section does not affect the application of
section 121ZL of the Environmental Planning and Assessment
Act 1979 to building product rectification
orders.
(4)
In this section:
Crown means the Crown within the
meaning of the Crown Proceedings Act
1988 or an officer, employee or agency of the
Crown.
liability includes liability for
defamation.
protected
person means:
(a)
the Minister, or
(b)
the Secretary, or
(c)
an authorised officer, or
(d)
an officer, employee or agent of the Crown or a
government agency, or
(e)
any other person of a class prescribed by the
regulations.
94Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
95Application of
ACL
If a provision of this Act applies the ACL to or
in respect of a matter arising under this Act, the ACL provision is to be
applied with the following modifications:
(a)
a reference in the ACL to goods is to be read as
a reference to building products,
(b)
any further modifications provided for by this
Act or the regulations.
96Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may create an offence with a maximum
penalty not exceeding 100 penalty units.
Schedule 1Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of this Act
2Building product rectification
orders
The power to make a building product
rectification order under this Act in respect of a building product used in a
building extends to building products used in a building before the
commencement of Part 4 of this Act.
Schedule 2Amendment of Acts and
regulations
2.1Building Products (Safety) Act
2017
[1]Section 16
Definitions
Omit paragraph (a) of the definition of relevant
enforcement authority. Insert instead:
(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
[2]Section 21 Statutory
provisions applicable to building product rectification
order
Omit section 21 (1) and (2). Insert
instead:
(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).
[3]Section 21
(4)
Omit “(1), (2) or (3)”. Insert
instead “(1) or (3)”.
[4]Section 83 Enforcement of Act
by council officers
Omit “119A” from section 83 (1).
Insert instead “9.13”.
[5]Section 83
(2)
Omit “Part 6”. Insert instead
“Part 9”.
[6]Section 93 Protection from
liability
Omit “121ZL” from section 93 (3).
Insert instead “8.19”.
2.2, 2.3
2.4Environmental Planning and Assessment Act 1979 No
203
[1], [2]
[3]Section 6.25 Issue, nature and
effect of building information certificate (as inserted by the Environmental Planning and Assessment Amendment Act
2017)
Insert “or a building product rectification
order (within the meaning of the Building Products
(Safety) Act 2017)” after “fire safety
order” in section 6.25 (5).
[4]Section 9.34 Orders that may
be given (as inserted by the Environmental
Planning and Assessment Amendment Act
2017)
Insert at the end of the section:
Note—
See also Part 4 of the Building Products (Safety) Act
2017.
2.5Environmental Planning and Assessment Regulation
2000
Schedule 4 Planning
certificates
Insert at the end of the Schedule:
21Affected building notices and
building product rectification orders
(1)
A statement of whether there is any affected
building notice of which the council is aware that is in force in respect of
the land.
(2)
A statement of:
(a)
whether there is any building product
rectification order of which the council is aware that is in force in respect
of the land and has not been fully complied with, and
(b)
whether any notice of intention to make a
building product rectification order of which the council is aware has been
given in respect of the land and is outstanding.
(3)
In this clause:
affected
building notice has the same meaning as in Part 4 of the
Building Products (Safety) Act
2017.
building
product rectification order has the same meaning as in the
Building Products (Safety) Act
2017.
2.6–2.9
sch 2: Am 1987 No 15,
sec 30C.
Historical
notes
Table of amending
instruments
Building Products
(Safety) Act 2017 No 69. Assented to 30.11.2017. Date of
commencement, Sch 2.1, 2.4 [3] and [4] and 2.5 excepted, 18.12.2017, sec 2 (1)
and 2017 (715) LW 15.12.2017; date of commencement of Sch 2.1, 2.4 [3] and [4]
and 2.5: not in force.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
2
Am 1987 No
15, sec 30C.