Non-Conforming Building Products in Australia

What it is

A non-conforming building product (NCBP) is a product that has been used or is intended to be used in a building where the product does not meet the claims made about it, does not meet the relevant Australian Standard or does not meet the Performance Requirements of the National Construction Code (NCC). The term covers both products that are unsafe and products that simply do not perform to the level represented by the manufacturer or supplier.

The Senate Inquiry into Non-conforming Building Products spent several years examining the impact of NCBPs in Australia. Its findings drove the state-level responses now in force, including the NSW Building Products (Safety) Act 2017 and the Queensland Chain of Responsibility provisions under section 74AF of the QBCC Act 1991.

How an NCBP is different from a defective product

An NCBP is not the same as a defective installation. A correctly manufactured product installed against the manufacturer's instructions is a defects matter under the relevant home building or commercial contract. An NCBP fails before it reaches the wall. It does not meet what was promised. The supply chain itself is the source of risk.

NCBPs fall into three rough categories:

• Counterfeit products. The labelling and paperwork claim a standard the product has never been tested against.
• Substituted products. A genuine product is shipped to Australia, then a cheaper non-compliant version is supplied for the actual install.
• Misrepresented products. The product is real and tested, but the claims about scope of use exceed what the testing supports.

State registers and where to look

Each major state runs a register or notice list of building products with use bans, warnings or known compliance issues. A builder pricing a job should check these before ordering material in the affected categories.

NSW Fair Trading

NSW Fair Trading publishes a list of building product use bans and safety notices under the Building Products (Safety) Act 2017. The list includes the ACP cladding ban and any other Building Product Use Bans declared by the Commissioner for Fair Trading. Each notice sets out the product, the scope of the ban and the consequences for use.

Queensland Building and Construction Commission

The QBCC publishes guidance on NCBPs and runs the Safer Buildings program. Under the Chain of Responsibility, designers, importers, manufacturers, suppliers and installers each have a duty to take reasonable steps to ensure NCBPs are not supplied or used. The duty cannot be contracted out.

Victorian Building Authority

The VBA issues product safety alerts and runs the cladding rectification program through Cladding Safety Victoria. The Victorian list focuses on combustible cladding but also covers other safety-critical items.

How to identify an NCBP on site

Five practical signals show up before a product reaches the wall. Any one of them should trigger a closer look.

1. The supplier cannot produce a current CodeMark certificate, an accredited test report or a manufacturer declaration when asked.
2. The price is materially below the established market for that product class. Genuine grade 8.8 bolts, AS 5113 tested panels and lead-free WaterMark fittings cost what they cost.
3. The labelling is inconsistent. A box marked grade 8.8 with bolts that have generic head markings, or a panel with a CodeMark logo but no certificate number, fails the smell test.
4. The supplier resists batch traceability. A legitimate supplier can match the delivery docket to a test report, a batch number and a mill of origin.
5. The product is being installed outside the scope of its approval. A panel approved for Class 1 use being installed on a Class 2 building is non-conforming, even if the panel itself is real.

How to report

A suspected NCBP can be reported to the relevant state regulator. In NSW, the report goes to NSW Fair Trading. In Queensland, the QBCC has a dedicated NCBP reporting channel. In Victoria, the VBA accepts complaints about both products and practitioners. Reports can be made by anyone in the supply chain, including subcontractors and homeowners.

The reporting builder is protected from retaliation under the relevant home building and consumer law provisions, and a documented report can later be valuable evidence if the product is found to have caused damage.

Paper trail to keep

For every safety-critical product (cladding, fixings, fire-rated assemblies, waterproofing, structural connections), keep five items per job: the evidence of suitability (CodeMark, test report or engineer statement), the supplier delivery docket, the batch or serial number, a photograph of the labelling on delivery and the install location record. Without those five items the product cannot be defended later if a regulator or court asks how the builder knew it was compliant.