Jonathon Duniam (Tasmania, Liberal Party) Share this | Hansard source

I too am pleased to be making a contribution to the debate on this particular piece of legislation proposed by the Nick Xenophon Team, the Customs Amendment (Safer Cladding) Bill 2017, a debate kicked off today by Senator Patrick. However, can I put on record my pleasure at seeing the return of Senator Colbeck today, and I also welcome into this place Senator Martin. I'm sure all Tasmanians who are here at the moment feel much better knowing that we have a full complement of Tasmanians representing them here, and I know you'd agree with that, Mr Acting Deputy President Whish-Wilson!

This a very important debate to be having, relating to the safety of both the materials and how they are used when it comes to building and construction. Over time, we've seen many, many changes to the technology that is used in buildings and in the manufacture of the materials that we use in construction. The safety standards which are applied to them also have evolved significantly over time. So no-one can dispute the importance of what is being debated here. The safety of occupants is paramount when it comes to the design, planning and construction of these buildings. We need to make sure that whatever laws and rules are in place are those best suited to ensure that prime goal of protecting the occupants is adhered to, or at least achieved.

As for myself, I've had a number of experiences with building over the years. The most recent project I had involvement with was a building that had a life which spanned well in excess of a century, and it was difficult to traverse the regulation and the red tape relating to bringing a building which dates from convict times to something that satisfies today's standards when it comes to occupancy and commercial use—noting the different materials that have been used over time. In the olden days, sandstone or other types of stone, along with timbers and plaster-type materials—a pretty basic array of materials—were used. Fast forward to the next iteration of that building's life, in the 1940s and 1950s, when the building took on an industrial role as a paint manufacturing facility, and completely different materials were used. A huge amount of asbestos was used. It was a new material. It was something they hadn't been using when the building was originally constructed and it was something that, over time, proved, as we know, to be harmful to human health, if not dealt with properly. And then fast forward again to today, and we have a completely new set of materials which are designed with the health and safety of the occupants in mind. So it is a difficult thing to do in places where you are retrofitting buildings to meet current standards.

Also, it is not just the materials that are used but the way in which we plan construction. Approvals have to be sought with regard to the use of materials: where those materials are placed, the amount of materials used and the standards they should adhere to. All of those things are very, very different from times gone by. That, of course, becomes complicated again when you look at retrofitting buildings, as was the case with the one I was talking about. Nowadays, we see buildings, whether they are retrofitted older buildings or new constructions, which have a much higher safety standard. All of this is important when considering the intent of this bill—which is to ban at the border a particular construction material—because the context of how buildings are constructed and the safety features they now have as opposed to the ones they had a number of years ago are very different. An automated fire detection and sprinkler system is one of them. There is also a layout in the design for easy evacuation in the event of an emergency, be it fire or some other type of unfortunate event. These things are all taken into account to ensure that, when the worst happens, the occupants have the best chance of protecting their health, wellbeing and, most importantly, their lives. Making sure that buildings are built that way, with materials, design and planning to meet the standards that we set out, is incredibly important.

The intent of the bill, as I said just a little while ago, no-one can disagree with. Its intent is to ensure that whatever we do in this place ensures that the health and welfare of the occupants of buildings are paramount, that we prevent where possible harm being done to those who occupy a building which experiences something like a fire, as has been discussed with reference to the Grenfell Tower and the Lacrosse building. That is not in contention at all. It really comes down to the how: how you achieve that outcome, how you achieve that end result.

The bill, as has been canvassed in this debate by a number of people, does propose a ban at the border as a means of preventing the importation of these aluminium composite panels with polyethylene cores. The point is: is that the best way to do it, or is there a better mechanism?

I didn't have the good fortune of participating in the Senate committee but, having done some research on this, having had a look at what is going on in the regulatory space around building and construction, particularly with reference to materials, I have been able to see what is going on across the country, particularly in Tasmania. So that's where we do differ. Everyone agrees that we need to do what we can to ensure that building materials are the safest materials possible, that people's health and welfare aren't impacted by incidents like the ones we've already talked about, but it's a case of how you get there. A legislated ban on a particular material is something which requires, as we know, a great degree of work. There's a committee inquiry, there's the debate in this place, there's the drafting process before all of that, it has to go to the other place—there are all sorts of stages. If we're going to do that for one particular material and not leave it to the experts in the field who have done the work, who have done the research and who are at the coalface when it comes to regulatory approaches to building and construction then I think we're getting into a difficult patch of work which is really not the role of the Senate but the role of the regulators on the ground in their individual jurisdictions. It would result in a great deal more red tape, another layer of regulation over the top of what exists in each state and territory, and I just don't think that's something we need to be doing here.

As I say, with regard to the problem that the bill is trying solve, absolutely we're on board. It's about ensuring that we protect human life. But I did hear previous speakers, even those in favour of the bill, talking about the aluminium composite panels with polyethylene cores having an appropriate use, which relates to signage and similar matters, provided they are used in compliance with the National Construction Code. You have to question the effectiveness of imposing a ban on the importation of a product like this; you have to see whether it would be practical to implement. I'm not sure what work has been done to consult with our Border Force officials, our people who sit at the borders and monitor what's coming through on ships and other types of freight into the country. I'm not sure what process has been undertaken there. But those sorts of things need to be taken into account, and it could be suggested that the practicality of policing such a ban would be exceptionally difficult.

We should be looking to manage the use of materials, not to ban them, not to create a specific ban on a specific material in response to certain instances. We need to ensure that the legislative framework we provide officials to work within enables a dynamic and quick response to things like this so that they can manage the use of materials. If there is a discretionary desire within a jurisdiction to restrict or even ban a particular type of material then we should make sure the framework has that in there. In a moment, I will be talking about the Tasmanian legislative framework, which indeed does just that.

We also want to think about the unintended consequences that may flow from a decision to ban a material with particular characteristics. I'm not sure what work has been done in relation to what flow-on consequences there would be. As I said before, there are appropriate uses for this material, provided they do comply with the National Construction Code, but the material can't be used even legitimately, appropriately and safely if a ban is put in place. What alternative is there for those who are currently using it appropriately? I don't know the answer to that question and I think such questions do need to be answered, particularly when materials are being used appropriately, legally and legitimately. We have to look at the underlying problem, which is about the participants in the building and construction sector being accountable for how they use materials and exactly what steps they take to satisfy themselves that the materials are being used in accordance with Australian standards and best practice. That will ensure that we don't have a repeat of the disastrous, heartbreaking events that we've had in the past.

So there has been a national approach taken, and it was in October of last year. I'm sure other speakers have mentioned this as well. The Building Ministers' Forum issued a communique on 6 October last year, when they met in Brisbane and talked about an approach which would provide each state and territory the capacity to deal with matters relating to aluminium composite panels with polyethylene cores. I will quote from the communique which was issued last October:

BMF Ministers recognise the public safety concern and clear risk arising around the use of cladding that does not comply with the National Construction Code (NCC). All Ministers agreed that they will use their available laws and powers—

that is, the laws and powers available to each state and territory, jurisdictions which primarily have responsibility for governance of these sorts of issues—

to prevent the use of aluminium composite cladding with a polyethylene (PE) core for class 2, 3, or 9 buildings of two or more storeys, and class 5, 6, 7 or 8 of three or more storeys, until such time as they are satisfied that manufacturers, importers, and installers, working in collaboration with building practitioners, will reliably comply with:

In October last year, we had the ministers responsible for the execution and upholding of the law relating to building and construction in each of their states and territories agreeing on a way forward, agreeing that the problem was there and that it needed to be dealt with.

The communique doesn't call for national legislation. The communique talks about state and territory ministers of all political persuasions using the laws available to them to deal with the problems faced when dealing with this material. It's pretty specific with regard to the use of aluminium composite cladding with polyethylene. It talks about certain classes when it comes to two or more storeys and another group of classes when it's three or more storeys. So it isn't talking about a blanket ban; it's talking about use in certain settings, which I think is an important distinction. The ministers are the people who are being advised by officials from around the country who have been dealing with all sorts of people from different sectors related to this—they talked, as we discussed before, with building practitioners, installers, importers and manufacturers. People who deal with those representatives have been given this advice and they've created this communique as a result.

But it also says 'until such time as they are satisfied' that certain things will happen—that the manufacturers, the installers and the building practitioners will comply with those two elements, which are that the materials satisfy a newly established test with regard to being fire-retardant and, of course, also a new regime around labelling. So there are two practical measures coming out of the Building Ministers' Forum dealing with this problem. It is that framework I was talking about before, where states and territories, who have responsibility for this area of regulation, are being given the scope to go and use their own laws in response to these terrible problems.

In Tasmania we have a set of laws that relate to building and construction which enable the state of Tasmania to deal with it in line with the communique from the Building Ministers' Forum. Senator Polley will recall the situation in her home town relating to the Launceston General Hospital and the cladding that was on that building. The state government undertook an audit with regard to a number of sites around the state and it revealed potentially flammable panels on a building like a hospital, which of course was something that caused a great deal of concern. I'm sure Senator Polley shared that concern for her local community. The audit that was undertaken by the state government did reveal 24 buildings across the state where these aluminium composite panels had been used. All of this was in response, of course, to the Building Ministers' Forum, ensuring that the state government had a handle on exactly what the size of the problem in Tasmania was. The government, represented by Michael Ferguson, the Minister for Health, responded by wanting to ensure that the materials were safe in nature and, if they were not, to immediately look into replacing them with a safer version of the materials so that we don't compromise patient safety or public safety at all.

In response to the Building Ministers' Forum recommendations, the Tasmanian minister, Guy Barnett, outlined specifically what they were going to do across the board, not just with regard to one example—being the Launceston General Hospital, although that is an important and significant example. Minister Barnett, who looks after building and construction, responded by saying that those recommendations from the communique did need to be implemented locally. He said:

The power to approve or not approve products was built into the Government's recent building reform package so that we could respond quickly to emerging issues.

That is the point I was making right at the beginning: the need to have dynamic legislation, not something that's going to require every step of a federal parliamentary process every time we have a problem with a building material. We need to make sure that the laws in place in our states and territories—and, where it is relevant, in Tasmania—are dynamic, so that each jurisdiction can deal with it in the same way, so that they can respond quickly and so that they can put in place measures that will prevent the use of materials, full stop or illegitimately, as has been described with the Grenfell Tower and other places.

Guy Barnett went on to say that the government will move to apply the restriction on the material to class 2, 3 and 9 buildings with more than two storeys and class 5, 6, 7 and 8 buildings with three or more storeys. Class 2 buildings contain two or more sole-occupancy units, class 3 covers hotels, hostels and school boarding houses, and class 9 covers public buildings. It related, again, to specific uses, specific sizes, and specific preconditions set with regard to whether this material is safe or not. This makes me question whether or not this is actually necessary—the need to introduce another layer of legislation to deal with a specific material, and going through the entire federal parliamentary process, as opposed to allowing states and territories—who are already working on this—to ensure that these materials are not used and that public safety is not put at risk. That's what we're seeing here, and I'm sure that other states and territories are doing exactly the same thing.

With regard to the response to the Launceston General Hospital, the Director of Building Control from the Department of Justice in Tasmania, Mr Dale Webster, had these recommendations—these are flowing out of the Tasmanian aluminium composite panel audit summary report which was released on 19 January this year. Point No. 1 says:

Ensure rectification of non-compliance at LGH by replacement of the ACP PE.

So these changes are already taking place. There is no need to add in further regulation with this bill.