What it does
The Building Products (Safety) Act 2017 (NSW) establishes a targeted, risk-based regulatory regime to prevent and remediate the use of unsafe building products in New South Wales. At its heart is the power conferred on the Secretary of the Department (s 9(1)) to impose a building product use ban by written notice published on the internet whenever the Secretary is satisfied on reasonable grounds that the use of a specified product in a building is unsafe. Section 4 defines a safety risk as any situation in which occupants are or will likely be at risk of death or serious injury, expressly noting that the risk may be conditional (for example, only materialising in the event of fire). The ban may be calibrated in multiple ways under s 9(3): it can target particular uses, classes of buildings, classes of persons, or be subject to exceptions and conditions.
Once a ban is in force, Part 4 activates a downstream process for identifying and rectifying affected buildings. An “affected building” is any building in which a banned product has been used in a prohibited manner, regardless of whether the use predated the ban (s 17). The Secretary may issue an affected building notice (s 18) or a general building safety notice for a class of buildings (s 19). These notices trigger obligations on councils and other relevant enforcement authorities to consider making a building product rectification order under s 20. Such an order requires the owner to eliminate or minimise the safety risk and to remediate or restore the building (s 20(2)). The order is treated, with modifications, as a development control order under the Environmental Planning and Assessment Act 1979 (EP&A Act) or, for non-EP&A buildings, as an order under s 124 of the Local Government Act 1993 (s 21).
The Act also equips the Secretary with proactive investigative tools. Division 1 of Part 6 authorises building product investigations (s 34) whose results may be published and used to support or amend bans (s 36). Division 2 permits the Secretary to compel a manufacturer or supplier to conduct a product assessment and furnish a report (s 39), with cost-recovery powers if the Secretary must complete the work (s 40). Part 7 confers on authorised officers (appointed under s 74) a comprehensive suite of information-gathering and entry powers exercisable for any “authorised purpose” listed in s 42. These include requiring answers to questions (s 45), entering premises (s 47), taking samples, conducting destructive testing (s 49(4)) and applying for search warrants (s 50).