– A tale of regulatory failure
Recent media attention relating to non-compliant Aluminium Composite Panels (ACP) has missed the main point: the entire building industry is riddled with non-compliant and dangerous product. John Power reports.
Highrise building fires in Australia, such as the blaze at Melbourne’s Lacrosse Tower in 2014, and the more recent fire in nearby Spencer Street in February this year, have shown the dangers of non-compliant Aluminium Composite Panels (ACPs).
More profoundly, however, these events point to something even more sinister: the complete meltdown of Australia’s building and construction regulatory platforms, the powerlessness of regulators to prevent the wholesale importation of non-compliant product in all building sectors, the inexcusable unwillingness or incapacity of government agencies to punish the deliberate use of non-compliant product, as well as the systemic failure of building inspectors to identify offences and order rectification without fear or favour. At every step, the regulatory system has shown itself to be a toothless heel hound.
A quick look ACPs – to single out just one product class – reveals an Australian regulatory approach defined by complexity and more escape routes for dodgy operators than a prohibition-era speakeasy.
ACPs: Quick overview
ACPs are laminates made by sandwiching some kind of material, usually a lightweight synthetic compound or aluminium waffle, between two aluminium sheets or ‘skins’. Not all ACPs are combustible or hazardous (See above table).
The main problems relating to combustibility lie specifically with panels containing a high percentage of polyethylene (PE) materials. PE-based panels have been blamed for all major cladding-related blazes around the world, including the above-mentioned cases in Melbourne. Other types of ACPs, including panels containing aluminium cores, are not considered to be hazardous when used in approved non-combustible walling systems.
ACPs must comply with the Building Code of Australia (BCA) in accordance with National Construction Code (NCC) provisions – the BCA is interpreted and administered by Australia’s various state and territory regulatory authorities.
We asked Ashley How, Technical Manager at ACP manufacturer Fairview, to explain the compliance process. (Fairview has run approximately 100 education and training workshops about safe cladding since 2015. The company has also partnered with the Master Builders to pioneer SafeClad, Australia’s first accreditation program for aluminium panel installers.)
“Basically,” Ashley says, “there are three routes that provide compliance for external walls (EW):
A. Deemed non-combustible (or specifically excluded)
B. AS5113 Full scale testing (complete pass)
C. Performance assessment by a fire engineer based on full scale testing.”
Method A essentially permits the use of ACPs that attain minimum levels of performance through small-scale ‘type testing’ in a laboratory, method B through the new Australian standard for full-scale testing, and method C requires a more subjective assessment of full wall systems by a qualified fire engineer based on full-scale testing.
According to Ashley, PE-core ACPs were first imported into Australia in the early 1970s, and acceptance grew steadily, reaching a peak in the mid-2000s.
“It is worth noting that prior to the NCC in the 1990s, there was no performance provision for combustible cladding in NSW, yet it was used,” Ashley said.
“It is probably also true to say that issues of compliance, product substitution and general acceptance all conspired to create gaps, where some ‘rogue panels’ were deployed incorrectly.”
Rorting the system
Herein lies the crux of the problem: the three pathways to compliance listed above are only as effective as the implementation and enforcement frameworks around them. Incredibly, while ACP code compliance is ‘mandatory’, there are only ‘voluntary’ requirements to demonstrate this compliance via credible third-party certification schemes such as CodeMark.
During a federal Parliamentary Inquiry into ACPs in 2017, various peak body stakeholders took turns to highlight widespread abuse of the regulatory process. (NB: there is no peak body for ACPs in Australia.)
The inquiry identified two main weaknesses in regulatory systems: (1) fraudulent certification, whereby manufacturers, sellers and/or distributors provide bogus documentation attesting to code compliance; and (2) product substitution, involving the deliberate or negligent installation of (cheaper) non-compliant ACPs instead of (more expensive) compliant products.
Four additional weaknesses (let us call them points 3–6), were not highlighted as forcefully in the inquiry, but they deserve mention, namely: (3) direct importation, whereby builders and/or developers import their own non-compliant ACPs and bypass mainstream scrutiny; (4) the ridiculousness of ‘inspecting’ materials or products during construction, potentially after products have already been installed; (5) the privatisation of building inspection services, which, at best, places enormous pressure on agents to ‘sign off’ projects rather than hold up works, and, at worst, paves the way for corruption; and (6) lack of enforcement, accountability or penalty for the use of non-compliant ACPs.
For example, builders of highrise structures in Victoria cease to be accountable for installing non-compliant products post-occupancy. Yes, this means new apartment owners have fewer consumer protections against dodgy ACPs than purchasers of a TV, car or microwave oven, which is a scandal worthy of bringing down the government in the writer’s opinion.
Solutions involve logic and ethics, both of which have been sorely missing in the regulatory environment to date.
As suggested by both the Institute of Architects and CertMark International during the Parliamentary Inquiry, the “only way” to tackle matters like fraudulent certification is to make all products subject to a mandatory certification scheme like CodeMark. The Australian Institute of Building Surveyors went one step further, advocating a comprehensive product register: if a product is not on the register, it cannot be considered compliant.
A fully fledged product register would need two elements to be effective: independent, Australian-based testing of each product by a third-party assessor; and accompanying guidelines about the appropriate usage of the product.
Enforcement and policing is an important adjunct to the idea of a central product register. At present, enforcement is selective and belongs within the realm of Consumer Law, hence the occasional prosecution of non-compliant building products by the ACCC.
Infinity Cabling is a good example. It is high time, however, for offenders to be subject to Criminal Law, which would send a clear message to those trying to sidestep regulatory protocols that the importation, possession or distribution of non-compliant products may result in prosecution in a criminal court.
A public product register in Australia would also discourage offshore offences relating to fraudulent certification, as purchasers in Australia would be able to test the bona fides of a product against the register rather than rely on the sellers’ claims.
Objectors to this kind of heavy-hitting action typically point out that non-compliant product in one sector may be permitted in another; for example, flammable PE ACPs might be suitable for a chicken shed, therefore they cannot be banned completely.
Happily, the Parliamentary Inquiry rejected such assertions, effectively declaring that a dangerous product is unwelcome regardless of where it might end up.
The most alarming feature of the regulatory confusion in today’s marketplace it its ubiquity. While we have focused attention in this article on non-compliant ACPs, the same regulatory deficiencies relate to practically all building and construction sectors, from non-compliant fixings and windows and glazing to lead-contaminated tapware and toxic laminated timber products, etc.
Sadly, a comprehensive, third-party Australian product register, involving local product testing assessment procedures, and backed up with the force of criminal prosecution, is the new reality facing the entire building industry if it is serious about stamping out non-compliant product.
Reliance on voluntary adherence to regulations, or a self-regulated ‘honor system’, has failed utterly.