The Act casts a wide net across the construction supply chain, building owners, regulators and adjacent professionals.

Manufacturers and suppliers (including importers of foreign building products) are directly exposed. The Secretary must, if practicable, give them notice before imposing a ban (s 14) and must consult them before or during a building product investigation (s 35). They may be compelled to conduct product assessments (s 39(2)(b)) and bear the cost of Secretary-led assessments if they fail to comply (s 40). Representations that a banned product is suitable for a prohibited use expose them to the s 15(3) offence.

Builders, coordinators and supervisors of building work (defined broadly in s 8 by reference to the Home Building Act 1989) commit an offence if they cause a banned product to be used (s 15(2)). The definition of building work deliberately captures residential building work and excludes only narrow categories such as pure architectural supervision or owner-builder work without reward. Demolition, certain floor coverings and lift installation are carved out, but the regulations may expand or contract the definition (s 8(7)).

Owners of land and buildings (including strata owners corporations under s 18(4)) bear the primary burden of compliance with rectification orders (s 20(2)). They must be given affected building notices (s 18(3)) and may apply for revocation once the building is “made safe” (s 25). Failure to comply with a rectification order attracts the enforcement machinery of the EP&A Act or Local Government Act 1993, including potential criminal sanctions and civil enforcement.

Councils and relevant enforcement authorities are both regulators and reporting nodes. They receive affected building notices and general building safety notices (ss 18-19), must consider making rectification orders, and must report to the Secretary on their actions (s 23). Council investigation officers may exercise EP&A Act powers for the purposes of this Act (s 83). Councils are also subject to NCAT review if they issue orders, with the Secretary entitled to appear on appeals (s 22).

Authorised officers (s 74) include Department employees, EPA staff, Fire and Rescue NSW personnel, council authorised persons and police. Their powers are conditioned by their instrument of appointment (s 76) and they must produce identification on request (s 78). They enjoy protection from liability when acting in good faith (s 93).

Directors and managers face personal exposure under the executive liability (s 59), accessorial (s 60) and general director liability (s 61) provisions. The due-diligence style defence in s 59(7) requires evidence of compliance assessments, training, resource allocation and corporate culture.

The Secretary and the Minister hold central decision-making roles. The Secretary’s opinion is presumed correct unless the contrary is proved (s 73), and evidentiary certificates signed by the Secretary are prima facie evidence (s 72). Injunction proceedings require Ministerial consent (s 70(2)).

Occupiers, strata lot owners and the public receive notification of risks and may make submissions when the Secretary calls for them (s 13). Tenants and occupants are protected indirectly through the safety-risk trigger but are not primary duty-bearers.

The Act therefore affects virtually every participant in the built-environment value chain, from overseas manufacturers to local councils, with particularly acute compliance burdens on those who specify, supply or install products once a ban is published.

Duties

• Duty not to cause banned products to be used (s 15(1)). “Cause” is defined to include performing the building work itself or any other circumstance prescribed by regulation.
• Duty not to misrepresent suitability (s 15(3)). This applies in trade or commerce and captures advertising, packaging and point-of-sale claims.
• Duty to comply with rectification orders (via the incorporated EP&A Act or Local Government Act mechanisms in s 21).
• Duty to comply with product assessment orders (s 39) and to provide accurate reports (s 39(8)).
• Duty to comply with authorised officer requirements (ss 44, 45, 49, 51). Failure attracts a strict 100 penalty unit offence (s 54), subject to the reasonable excuse defence (s 56) and the warning precondition (s 57).
• Directors’ duties to take reasonable steps to prevent executive liability offences (s 59(1)(c)(ii)). The non-exhaustive list in s 59(7) mirrors corporate due-diligence language found in work health and safety legislation.
• Duty to report imposed on councils (s 23).

Rights

• Right to reasons for any ban or amendment (s 10).
• Right to make submissions when the Secretary calls for public comment (s 13), although procedural fairness is expressly excluded prior to imposition (s 13(3)).
• Right to apply for revocation of an affected building notice once the building is “made safe” (s 25).
• Right to administrative review by NCAT of bans, affected building notices, general safety notices, refusal to revoke, and product assessment orders (s 81), subject to the 28-day time limit.
• Right to compensation for physical damage caused by entry or destructive testing, unless the occupier obstructed the officer (s 53).
• Right to a permit authorising otherwise prohibited conduct (s 87), although permits are discretionary and revocable.
• Right to an undertaking as an alternative to immediate prosecution (s 27), with statutory protection against use as an admission of guilt.

The statute carefully balances these rights against the overriding public interest in rapid risk mitigation, most visibly in the urgent-publication exception in s 14(4) and the presumption of the Secretary’s opinion (s 73).

Penalties are among the heaviest in NSW fair-trading legislation. The s 15 offences carry 10,000 penalty units (currently $1.1 million) for corporations with daily continuing penalties of 1,000 units. Individuals face 2,000 penalty units or two years’ imprisonment. The same maxima apply to breach of an undertaking (s 29) and to directors under the executive liability offence (s 59), albeit capped at 200 penalty units for the latter.

Continuing offence provisions (s 62) ensure daily liability until compliance. Penalty notices are available for prescribed offences (s 65), capped at the court maximum. Proceedings may be brought only by the Secretary or authorised prosecutors (s 66) and must generally commence within two years, extendable where evidence first came to an authorised officer’s attention within the prior two years (s 67).

Enforcement tools are layered:

1. Administrative: bans, notices, rectification orders, product assessment orders.
2. Civil: undertakings enforceable by Supreme Court order with costs and monitoring expenses recoverable (s 30(3)).
3. Injunctive: broad Supreme Court power on the Secretary’s application (s 70).
4. Criminal: strict liability elements for many offences, reversed onus for reasonable excuse (s 64), and ACL-style mistake-of-fact and “act or default of another” defences (s 68).
5. Director liability: three distinct regimes (ss 59-61) covering executive liability, accessorial liability and general knowing authorisation.

Evidentiary aids are generous: Secretary’s certificates (s 72), presumption that the Secretary’s opinion was duly formed (s 73), and admissibility of product assessment reports (s 41(3)). The Act binds the Crown (s 94) and prevails over the National Construction Code (s 85), removing any “compliance with NCC equals safety” defence.

The Act is deliberately parasitic on a constellation of statutes.

• Environmental Planning and Assessment Act 1979: rectification orders are deemed development control orders (s 21(1)); council investigation officers’ powers are extended (s 83); definitions of “building”, “land” and “temporary structure” are imported.
• Home Building Act 1989: the definition of building work is aligned with residential building work (s 8(2)); owner-builder and specialist work exclusions are modified (s 8(3)-(5)); asbestos is carved out by reference to Division 1A of Part 8.
• Fair Trading Act 1987 and Australian Consumer Law (NSW): definitions of “published”, “statement”, “trade or commerce”, “the ACL” and “manufacturer” are adopted (s 3(1)); ACL ss 207-209 and 214-215 apply to Part 3 offences (s 68); evidentiary provisions (s 71) and modifications for building products (s 95) are prescribed.
• Local Government Act 1993: applies to non-EP&A buildings (s 21(3)); definitions of “council” and “owner” are borrowed.
• Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015: owners corporation notification rules (s 18(4)) and strata scheme definitions.
• Law Enforcement (Powers and Responsibilities) Act 2002: governs search warrants (s 50(3)).
• Administrative Decisions Review Act 1997: modified so that internal review is excluded for bans (s 81(3)) and statement-of-reasons obligations are replaced by the Act’s own regime (s 82).

Information sharing with fair-trading, consumer protection, building regulators, councils and law enforcement agencies is authorised notwithstanding other secrecy laws (s 86). The Act expressly does not limit other investigation powers (s 37) or other liability regimes (ss 59(6), 60(6)).

The version analysed reflects amendments up to 2024 No 53, Sch 3.4. Key changes include:

• 2022 amendments (2022 No 59, Sch 3.7) updated definitions and authorised officer eligibility to reflect machinery-of-government changes.
• 2024 amendments (2024 No 53) further refined authorised officer classes, removed spent provisions in s 33, and adjusted cross-references.
• Earlier 2017 amendments (2017 No 69, Sch 2.1) aligned the Act with the commencement of the EP&A Amendment Act 2017, ensuring rectification orders dovetailed with the new development control order framework.

These changes were driven by the need to respond to the Lacrosse and Grenfell cladding crises, to integrate the new planning enforcement regime, and to address practical difficulties identified in early implementation (for example, identifying foreign manufacturers and recovering assessment costs). The expansion of product assessment powers and information-sharing provisions reflects a policy shift from purely reactive banning to proactive risk identification across the entire product lifecycle.

Although the Act is relatively recent, several structural features have already generated litigation and commentary.

First, the exclusion of procedural fairness before a ban is imposed (s 13(3)) has been criticised as draconian, although the mandatory post-decision reasons requirement (s 10) and NCAT review rights (s 81) provide some check. In practice, the Secretary has used the public-submission mechanism (s 13(1)) to blunt natural justice complaints.

Second, the interaction between a ban and existing development consents or construction certificates has produced disputes. Because the Act prevails over the National Construction Code (s 85), a product that meets NCC standards may still be banned, forcing owners to seek modification of consents or face rectification orders. Land and Environment Court appeals have tested whether a rectification order can be challenged on the basis that the underlying ban was unreasonable (s 22(3) allows the Court to order the Secretary to revoke a notice).

Third, executive liability provisions (s 59) have raised concerns among directors of smaller manufacturers. The due-diligence factors in s 59(7) require demonstrable corporate culture change, which smaller entities argue is disproportionate. No reported superior court decisions have yet settled the precise content of “reasonable steps” in the building products context, but analogous WHS cases suggest courts will expect concrete evidence of risk assessments, training records and supplier audits.

Fourth, cost-recovery under s 40 for product assessments has been controversial where the Secretary’s assessment reaches a different conclusion from the manufacturer’s. The recoverable fee is limited to “reasonable” costs, yet the absence of merits review of the quantum has led to negotiations rather than litigation.

Finally, the broad definition of “building product” (s 5) — “any product, material or other thing that is, or could be, used in a building” — has prompted submissions that it captures temporary site materials or even software-controlled systems, stretching the Act beyond its original cladding focus. Regulators have so far confined use to tangible construction components, but the text supports a wider reading.

Most practitioners miss several subtle but high-impact features.

• Retroactivity is baked in. A building can be declared “affected” even if the product was installed years before the ban (s 17(2)). Owners who relied on then-compliant certifications have no statutory defence.
• “Use” includes misuse (s 7(3)). An installer who installs a product contrary to manufacturer instructions can trigger a ban contravention even if the product itself is not banned for all uses.
• Continuing offences run until compliance, not merely until detection (s 62). Daily penalties of $110,000 for corporations can accumulate rapidly while owners negotiate with councils.
• The Secretary’s opinion is presumed correct (s 73). An applicant for NCAT review must positively displace that presumption; merely showing that another reasonable view existed is insufficient.
• Product assessment reports are admissible in rectification proceedings (s 41(3)) and can shortcut expert evidence. Manufacturers who furnish optimistic reports risk misleading-conduct charges under both this Act and the ACL.
• Information-sharing authorisations override secrecy (s 86(3)). Data provided to the Secretary under compulsion can lawfully be passed to the EPA, Fire and Rescue NSW or even interstate regulators without further notice to the supplier.
• Permits under s 87 do not protect against other legislation. A permit to use a banned product for research does not authorise a breach of the Home Building Act warranty provisions or planning controls.
• Council reporting is public (s 23(6)), subject only to withholding the precise street address. Media can therefore track which owners are dragging their heels, creating reputational pressure outside the formal penalty regime.
• Destructive testing is expressly authorised (s 49(4)) and the compensation obligation (s 53) excludes “any damage caused by the exercise of any other power”. A laboratory fire test that destroys a $50,000 sample may not be compensable.
• Executive liability captures “corporate culture” (s 59(7)(d)). A single email from a director downplaying a safety warning can be sufficient to prove failure to maintain a culture of compliance.

Compliance professionals who treat the Act as “just another cladding rule” are exposed. The statute is a sophisticated, multi-layered safety net that can be deployed rapidly against any emerging product risk.

A robust compliance program must operate at three levels: pre-ban horizon scanning, immediate response to a ban, and ongoing building portfolio risk management.

Pre-ban horizon scanning

• Maintain a register of all products used in current and past projects, cross-referenced to manufacturer, batch, supplier and installation date.
• Subscribe to Secretary’s publication website and relevant industry alerts. Treat any call for public submissions (s 13) as a formal trigger for legal review.
• Require suppliers to warrant that no product is, or is likely to become, subject to investigation. Include contractual indemnities and mandatory notification of product assessment orders received by the supplier.
• For foreign products, map the Australian importer or agent to ensure s 14 notice can be received.

Immediate response to a ban

• Upon publication, freeze all further specification or installation. Notify site supervisors in writing that continued use is a criminal offence.
• Within 48 hours, commission an internal audit to identify every location where the product has been used. Engage independent fire engineers or structural consultants to quantify the safety risk.
• If an affected building notice is received, treat it as prima facie evidence of risk (s 20(4)). Do not contest the underlying science in the first instance; focus instead on the practicability of elimination versus minimisation (s 26).
• Consider offering a s 27 undertaking to the Secretary. A well-drafted undertaking can avoid criminal proceedings and demonstrate “reasonable steps” for director defence purposes.

Rectification project governance

• Engage qualified consultants who meet any specifications in a product assessment order or rectification order.
• Document the decision-making process for choosing elimination versus minimisation so that the building can later be certified “made safe” (s 26).
• For strata buildings, ensure the owners corporation is formally notified and that levies are raised promptly; delay by lot owners does not excuse the owners corporation’s obligations.
• Maintain a central file containing all Secretary notices, expert reports, costings and correspondence. This file will be essential if the Secretary seeks to recover assessment costs or if directors are later prosecuted.

Corporate systems

• Implement director-level reporting on product safety risks at least quarterly. Record the reports to demonstrate the “assessing compliance” and “corporate culture” limbs of the s 59(7) defence.
• Train procurement, design and site teams on the Act’s definitions. A common error is assuming that “building product” is limited to structural items; s 5 is far broader.
• Integrate this Act’s requirements into ISO 9001 or similar quality systems so that product bans automatically trigger non-conformance reports and corrective action plans.
• For listed companies or those with whistleblower policies, ensure that internal reports about unsafe products are treated as protected disclosures to avoid s 84 fraudulent allegation offences.

Record-keeping and reporting

• Retain all product assessment reports, test results and expert certifications for at least seven years.
• If a council requests a report under s 23, treat the 30-day deadline as immovable; late reporting itself can trigger further Secretary scrutiny.
• When publishing notices on the internet (s 91), the Secretary will use a dedicated NSW Government website; monitor it rather than relying on general media.

By treating the Act as a product-lifecycle safety statute rather than a one-off cladding response, organisations can convert a compliance burden into a market differentiator: demonstrating that their supply chain is resilient to future safety bans.