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Economics References Committee
Non-conforming building products - use of non-compliant external cladding materials in Australia

BARNETT, Dr Jonathan, Chair, Society of Fire Safety, Engineers Australia

HUGHES-BROWN, Mr Benjamin, Managing Director, Ignis Solutions Pty Ltd

McINTYRE, Mr Peter, Chief Executive Officer, Engineers Australia

STOLTZ, Mr Christopher, President, Victoria Division, Engineers Australia


CHAIR: Welcome. Thank you for appearing before the committee today. I invite you to make a brief opening statement should you wish to do so.

Mr Hughes-Brown : Thank you for the opportunity to present. Professional fire engineers are not involved enough in building design and construction. They are typically used for code deviations, noncompliances or construction errors. Registered professional fire safety engineers should be involved in all buildings of type A construction, to advise, report and certify, much like the process in the Middle East, the Americas and parts of Europe. We cannot leave it to a project certifier or the fire service, who have many other factors that they need to focus on.

The Building Code is too complicated. It is contradictory, with no hierarchy of control for various clauses which compete with each other. The matter of fire safety and building compliance is too great to rely on one person. By way of example, let's take sarking used for external walls for weatherproofing. One part of the code requires it to have a flammability of less than five. This indicates that combustibility is permitted. Another part of the code says that the external wall must be non-combustible. How is this to apply for a consecutive nature? If it is used externally, does the clause that allows it to be used as combustible apply internally? Well, you don't put sarking on internal aspects of a building. And does it apply to only low-rise type C construction? There are no requirements for fire resistance in many applications for that. So what does the flammability requirement actually hold on that front? The Australian Building Codes Board has written a nine-page document to provide clarification on these two levels of clauses. A nine-page document to provide clarification certainly highlights that something is not right.

In my submission, there is a case study about the supply of composite panels such as those from suppliers here today who have had their product tested by a registered authority and presented to certifiers. By all means it was proven that this must be okay. It was accepted for many years, certainly for over 10 years, in Australia, and it is not exclusive to Australia. We have seen it elsewhere in the world. Clause 82.1 of the BCA requires materials to be fit for purpose. We now know that polyethylene based materials are not fit for real fire events. Could this have been avoided? With the complexities and the ambiguity of the code, I really don't know.

We have a voluntary certification scheme, but, to quote Mr Dalrymple of the MFB, the Metropolitan Fire Brigade, in the paper the other day, we have lost trust in certification. This has led to dissent and suppliers complaining about professional engineers, who are actually trying to keep buildings and occupants safe. Further to this, we have mandatory certification schemes for plumbing products, but recently a New South Wales government agency has rejected the WaterMark Certification Scheme on a plastic sprinkler pipe product and then commissioned an out-of-state, non-accredited lab to make an observation test on an American standard, which the pipe failed. They then used this result to demand the pipe be removed from many homes, at substantial cost, endangering the occupants, who needed to have sprinkler-protected building. This has almost destroyed the pipe manufacturer's business.

We also see suppliers who have a large amount of relevant fire tests, such as those suppliers here today, and they can prove that their product is a very low hazard, but they are constantly challenged, on a regular basis, to prove that their product performs. It is clear that there are problems with the testing, the code, the certification of products, and the building code application and ability to have confidence in compliance of proven products. We need acceptance criteria that all bodies will follow. We need a clear test requirement for small-scale and large-scale, for internal and external applications.

Our suppliers here have a similar thought, and I support their context. We need a professional register of fire engineers involved in projects to complement the certification process. Don't leave it up to one person. As a first step, I think we need to have an appropriate industry body such as Engineers Australia or the Fire Protection Association to establish criteria which we can follow so we can accept the safe use of combustible materials. You mentioned EPS previously. We still see a lot of EPS in the Canberra market being installed in car parks or off at applications, and this is going on on a regular basis. So we do need some strong action.

Mr McIntyre : Thank you for inviting Engineers Australia to give evidence to the inquiry. I would first like to outline a bit about the organisation and then cover some of the key points of evidence that we'd like to present. Engineers Australia is a not-for-profit professional organisation for engineers. Established in 1919, the organisation is constituted by a royal charter 'to advance the science and practice of engineering for the benefit of the community'. Engineers Australia is the trusted voice of the profession, and we are a global home to engineering professionals and are renowned as leaders in shaping the sustainable world.

Importantly, we have come here today to talk on behalf of the entire engineering profession, without commercial pressures affecting our evidence. Today we're going to have some detailed evidence provided by Chris Stoltz. Chris is the president of the Victorian division of Engineers Australia and has acted as a public face of the organisation on a number of matters. This has included a lot of media activity in response to the Grenfell Tower fire, in which he has been educating the public about the technical issues at play and highlighting the regulatory issues that affect building safety in Australia. Jonathan Barnett is the president of the Society of Fire Safety, which is what we call a technical society of Engineers Australia. As you might expect, the Society of Fire Safety is made up of fire engineers and acts as our primary source of technical advice for fire safety related issues. Like me, both Chris and Jonathan are chartered professional engineers and are registered on the National Engineering Register, with Jonathan registered under the fire safety category of engineer.

The inquiry has been active for a long time and has a wide remit. However, our submission to the committee and our evidence today are focused on fire safety in buildings. It is also in the context of the Grenfell Tower fire in London and the Lacrosse tower fire in Melbourne in 2014. With that in mind, the matter of non-conforming building products is, of course, important, but different issues play other fundamental roles. These are construction phase inspections, self-certification, building commissioning, essential safety measures, and the roles of professions like engineers and their registration.

I'd like to make a handful of key points. Firstly, there is one Building Code in Australia but eight separate building acts. This has led to inconsistency in construction regulation and enforcement. However, one consistency is that fire engineers are not a mandatory part of the regime of final inspections. It is recommended that engineers, especially fire engineers, have a more prominent role in building inspections.

Secondly, building surveyors are often unable to be truly independent because they are often employed as part of the wider building team. Self-certification is a similar issue, and it is recommended that the engagement of building inspectors be changed so that they are always truly independent and able to provide full and frank assessments.

Thirdly, the inspection of buildings for commissioning is difficult because mandatory inspections do not include the inspection of safety measures before final close-up of building. This can lead to situations where fire safety measures may have been installed that are not compliant with the code and which cannot be seen by the building surveyor or fire engineer. This therefore means they cannot be seen as a building defect until a full audit is undertaken or the failure of a system occurs.

There is a lack of essential safety measures—I will refer to those as ESM—maintenance being performed at an adequate level. Deficiencies are often noted year after year, with no mechanism to force rectification. The ideal solution would be for an independent, qualified fire safety engineer, or other specially qualified independent person, to conduct an ESM on a periodic basis such as every five years.

Lastly, under the performance based Building Code of Australia, building surveyors require engineering advice, and some are reluctant to acquire it, due to the fact—just on costs they have. As a result, engineering decisions are sometimes made by people without the technical training, skills or knowledge to make them. Cost-reduction imperatives highlight that cost can override the process of engaging technically-experienced professionals in the system. Thank you.

CHAIR: Thank you very much. I will start off with that final point that you made, Mr McIntyre, about engineering decisions being made by people who are not qualified. You are advocating that fire engineers play a greater role in the inspection process. So that is another layer in the process. We have already heard that, throughout this, we have got a patchwork of regulators and a patchwork of regulations. How are we assisted by another layer being put in here? Are your members lining up to be finally accountable for a fire that occurs because of dodgy products being installed in a building?

Mr Stoltz : It might be better if I answer that. I think what we are saying is that, due to the financial pressure and time pressure on building surveyors, they are called upon sometimes to make decisions where they should go and seek the advice of a fire safety engineer. In the situation that we are talking about now, a building product has been substituted but there has not been a redesign or a consideration of the design as to what the impact of that change of product is. Fire safety engineers are involved in the design of buildings, in the early phases, like other specialists who are required. In a structural case, you have engineers who inspect the structure from time to time—and maybe that is not enough either. You also have, obviously, electrical works and mechanical works that are inspected by the relevant engineers. Fire safety is an emerging field of expertise, and we are saying that, at the moment, we need to make sure that that expertise is applied, particularly when there is product substitution.

CHAIR: Dr Barnett?

Dr Barnett : I am a technical director for a fire safety engineering firm, and not a day goes by when I do not ask my team: 'Are we sure this design is appropriate? When there is a fire and we are going to testify before the coronial inquest, can we defend our design? If we can't, I'm not interested in supporting you.' I have given a talk now three times around the country on unsafe deemed-to-satisfy designs, saying that, as a fire safety engineer, I can say, 'That is not appropriate to sign off on.' I am willing to take the responsibility for that. Unfortunately, building surveyors and others do not have that luxury because they are tied in by the building act which says: if it is deemed to satisfy, they have to accept it. We don't and we won't, if it is unsafe. So the answer to your question is: yes, we take responsibility and we are willing to.

CHAIR: We heard from the building surveyors about the demise of the clerk of works. Do you have a view as to whether that was a retrograde step ending that role; and is it appropriate that that role be reintroduced so that it could provide the type of technical advice that your members are capable of providing?

Mr Stoltz : Many of our members do lament the demise of the clerk of works. It was seen as a system that in hindsight seemed to work well. I spent a year as clerk of works on a dam building site, and it was incumbent upon me to test—

Senator XENOPHON: Is that a damn building site or a dam building site?

Mr Stoltz : A small dam, and I was engaged by what was then called the State Rivers and Waters Supply Commission to make sure that the contracted builder for that dam was compacting the dam wall to meet the design standards. I had to continually monitor the compaction as the dam wall went up. It's a bit like that in a building: the clerk of works was responsible to the owner of the building to make sure that the builder was building the building as it went up, using the materials, fitting the material and constructing the building according to the design.

I don't know whether it was the eighties or the nineties, but we changed the process, and so we have things like self-certification now. We have the change that came in in Victoria in the nineties where building surveyors were no longer the employees of local government, although some still are, but they could also be private—in other words, the process could be outsourced. That in itself is not a bad thing, provided we have got the checks and balances to make sure that, if you like, the auditors are audited and that the competencies are there to make the decisions that they're making. So many of our members do lament the loss of clerk of works.

CHAIR: Could the clerk of works be considered to be independent of the builder? Were they prepared to be frank and fearless in what they did?

Mr Stoltz : I think that's dead right. I think that many clerks of works—I'm not sure of the plural—were feared by the builders. However, not to make too big a point, it was very cooperative relationship—in my experience, it was anyway. But it was clear that I had a role to play, and that role was to make sure that the works were undertaken in accordance with the design.

Senator KIM CARR: In your submission—and, again, in our presentations today, Mr McIntyre and I think Mr Hughes-Brown, you were saying similar things and I quote you here. It says:

In a system that puts cost ahead of professionalism we have created an industry where margins are thin and corners are cut. Professionals are left out of the process and decisions are being made by those who do not have the experience or knowledge to make them. This … leads to unacceptable and unnecessary risks being taken in the construction of people’s homes.

We are obviously concerned not just about people's homes but particularly high-rise buildings where there is considerable public safety. That issue has been demonstrated across the country. We believe the evidence presented to the committee in many thousands of cases. I am just wondering in your assessment, how is it that such a situation has been allowed to develop where, as you've described it, costs are put ahead of professionalism and that safety is now put at risk?

Mr Stoltz : I will, first of all, just clarify the meaning of the word homes there. There are two ways to look at it, and both are right; many of these high-rise buildings are apartments and they become homes.

Senator KIM CARR: Yes, of course; I accept that.

Mr Stoltz : But, also, this systemic problem that we have got extends into the suburbs so that you can see houses, small apartments, dual tenancies—

Senator KIM CARR: You have said that. Fair enough, but I am interested to know in general: how did this systemic problem arise in the assessment of Engineers Australia?

Mr Stoltz : As professionals, we're not perfect, but what we are saying here is that: over a period of time, the system has been altered so that now we have different drivers—cost is one of them—but we don't have the checks and balances. As we said, clerks of work had a role to do.

Senator KIM CARR: So costs are now more important than public safety?

Mr Stoltz : We are not saying that at all.

Senator KIM CARR: Is that not the implication?

Mr Stoltz : We are saying that that appears to be what is happening in the industry—the builders and the subcontractors and so on. Remember, a lot of the buildings are constructed by a myriad of subcontractors, and so there is pressure. So many times, a tender is all about costs.

Senator KIM CARR: What struck us on this committee, and I think I speak for all senators here, is that no-one is held responsible. Everyone has someone else to point the finger at. The product of deregulation and self accreditation, this process of abrogation of responsibility, is that no-one is responsible. What do you say to that?

Mr Hughes-Brown : I will chime in on that. It is also a matter of who is going to fund that process of holding someone to account? Is the DPP going to pick it up and run with it? Do they have the finance program to do that? I've seen cases where private organisations have had to go through the legal process to defend themselves, and then run out of money and lose their whole business with it.

Senator KIM CARR: Again, so there is no accountability?

Mr Hughes-Brown : Yes.

Senator XENOPHON: On notice, can you give us examples of where people go through this quagmire but it doesn't actually help make buildings safer and it instead becomes a regulatory nightmare?

Mr Hughes-Brown : Yes, absolutely. I will provide that.

Senator XENOPHON: That is not taking away from what Senator Carr has said. It seems we have had too much red tape on some things but on the things that matter we have deregulated when we shouldn't have.

Senator KIM CARR: The question we just asked is: what we do about it? One of the matters that has come to our attention is this need for national regulation and to put this question of responsibility back into the system through licensing. What do you say to that?

Mr Stoltz : Engineers Australia have established what we call the NER, the National Engineering Register. As far as our profession is concerned, after failing to get the states to agree to a national register of engineers, we created our own. That has been in place for a number of years now. We are now working with each state, state-by-state, to establish a register of engineers.

Senator KIM CARR: That is terrific. It takes forever. We are thinking about recommendations to the Australian parliament about establishing a regulatory regime of national licensing not just for engineers but for all the different players in terms of holding people responsible. One for professional qualifications, not just the question of people at the top of the food chain but also the plumbers and all of the other tradespeople on a building site, so that someone has to say, 'I won't put this particular product into this building if I believe it to be non-compliant and I can demonstrate that it is non-compliant with national standards.' What do you say to that?

Mr Stoltz : Hear, hear!

Senator KIM CARR: You agree with that?

Mr Hughes-Brown : Absolutely. In the ACT, we don't have any controls on the registration of engineers. My nearest competitor, to my knowledge, has a year 10 certificate, and I have 17 years of tertiary education, qualifications and all of that with it.

Senator KIM CARR: So what is happening is that there has been a debasement of the vocational education system in many aspects of our training system? I know you will say to me that, in terms of your professional qualifications, the university system still maintains high quality assurance. I take it that is your evidence? But it is not the case in all—is that true or not?

Dr Barnett : No—well, I can answer that a little bit. We have only three programs in the country for fire safety engineers, for example, at the university level, but it is only as a postgrad certificate or program.

Senator KIM CARR: So the higher education system is letting us down as well?

Dr Barnett : It is not world class. It is not recognised internationally. I was a professor for 30 years in America, and we are not there yet. We do have a problem across the board, you are right.

Senator KIM CARR: The question is, what can we do about that? I'm not proposing another series of inquiries and another series of consultations, given that this is a public safety issue. Would you agree there is an urgency required? I am sorry, a nod and a shrug will not be picked up.

Dr Barnett : Yes, absolutely. I agree with that. There is not only an urgency—Lacrosse should have woken everyone up; it didn't. I have given 79 talks on facades now, including in Boston just last month. Grenfell has finally woken people up. Do we need a Grenfell in this country? I hope not. Let's do something before that happens.

Senator KIM CARR: The senior official from MFB in Victoria apprised us on Friday that many officials are still wiping the sleep from their eyes. Do you think part of the problem is that there is a failure to respond to the urgency of this situation?

Mr Hughes-Brown : I think it hasn't been a substantial failure. After Lacrosse I know a number of the suppliers who are here today took immediate steps to stop providing polythene cladding, but that, unfortunately, is only the responsible ones, the larger organisations.

Senator KIM CARR: That's the problem. The building industry is renowned for the crooks and shysters that dominate the place.

Mr Hughes-Brown : But equally under the code it's too complicated and ambiguous. You can see my flowchart in there to try to work out how you validate that everything is okay.

Senator XENOPHON: In your opening statement and your submissions, Mr Hughes-Brown and Engineers Australia, are you basically saying that the system of regulation and enforcement for ensuring that we don't have dangerous building products in our buildings, putting people at risk, is essentially broken?

Mr Hughes-Brown : Or non-existent.

Senator XENOPHON: That's even worse, isn't it.

Mr Hughes-Brown : Yes, and further to that, to validate and confirm that a product is okay is too complicated or subject to interpretation, and a lot of fire agencies' building certifiers don't know what pathway to take. They are unsure, because of the insurance aspects. If we then add more substantial issues to that—you may have criminal proceedings and all that—we won't get any certifiers. It'll be too much of a risk.

Senator KIM CARR: But on the other hand, surely if there is some question about safety of a product, why should it be put into a building?

Dr Barnett : We have a performance based Building Code, which allows us tremendous economies of being able to use new construction techniques and the like.

Senator KIM CARR: Enormous responsibility too.

Dr Barnett : It is very complicated, which is why we need professionals who have the proper training. We can't do things the old way, because our systems are much more complicated than they used to be. That's one of the challenges that we have. The argument Engineers Australia is making is that we need the trained professionals to get involved. In the old days, it could be the carpenter or the tradesperson who had the knowledge, but techniques have changed. We need to have an understanding of that, and it comes down to having the right professionals involved.

Senator KIM CARR: It's been put to us that this question of fit-for-purpose alternatives is open to very substantial interpretation and maybe that in itself is the source of the ambiguity. You say it's a person not qualified to make the judgement, but the escape route is always going to be there. We have heard evidence today from expert witnesses that one of the provisions is that any other measure can be employed if certifiers claim it's satisfactory.

Dr Barnett : My argument is it shouldn't be any other measure by someone who's not trained and doesn't have the knowledge. Fire safety is an emerging discipline. It's different from other engineering disciplines. It requires a lot of engineering judgement. My background—I'm on the NER—is civil mechanical building services and fire safety. You can't do it as just one narrow thing; you have to bring many different disciplines and skills together. Many of our fire safety engineers have that. The argument is that if we're doing something complicated and going to one of these other systems, we need to use the right professional and they absolutely need to be accountable.

Senator KIM CARR: Some allegation could be put to you that your concern, though, is with the engineers but not for the sprinkler-fitter. What are their responsibilities? Aren't they entitled to be part of that process of making professional judgements?

Dr Barnett : I'd argue that they need to have a certain amount of autonomy, but it still needs to be supervised by the professional. Again, I apologise; part of this comes from my American background—

Senator KIM CARR: You shouldn't apologise for that, surely.

Dr Barnett : I did notice there were no dual citizenships in the Senate that included Americans.

Senator KIM CARR: For very good reason.

Dr Barnett : I'm sure! But, quite seriously, when it's something complicated, the sprinkler technician needs to be able to identify that, no, that's different. Then, the professional needs to be called in to work with them. It's a partnership, and it's really important that both sides of the partnership play the right role.

Senator KIM CARR: My argument is that the sprinkler fitter needs to be licensed, as does the engineer.

Dr Barnett : I agree with you.

Mr Stoltz : If I may, I've prepared the six recommendations that are drawn from our paper. I might table that and leave them with you.

Senator KIM CARR: I appreciate that.

Mr Stoltz : One of those recommendations is that the full building fire systems commissioning be witnessed by a fire safety engineer, because it's the function of the system that's going to make it safe. So you can have things installed and you can have somebody look at it and say, 'Yes, that looks like it's installed properly,' but, at the end of the day, it's got to work. It's a bit like with ransomware. It's not much good having a backup of your computer system if your restore function doesn't work.

Senator KIM CARR: The Property Council will tell us that your proposals are frightfully expensive and should be ruled out because they're adding costs to the building. In terms of the percentage of the cost of a building, are you proposing very significant increases in costs?

Mr Hughes-Brown : Absolutely not—not in that process. Many a time, and I think Jonathan can speak to this as well, when a fire engineer comes onto a project, we are actually making it more cost effective in many ways. Occasionally I would say, 'Do you want me to have my fee as a fixed fee or a percentage of the savings that I can develop for you as well as improving or at least maintaining the level of safety'—

Senator KIM CARR: Or the coroner's inquiry that might follow.

Mr McIntyre : Can I just make an additional point. You mentioned the licensing and the registration. I fully support those initiatives. One of the concerns I have is that you may have a building designer—that can be structural, electrical or fire—who does a design and certifies that as an appropriate design. Any changes made to that design afterwards need to come back for re-evaluation. People who don't have the skill to understand the impact of those changes, whether it be materials, design, supply, configuration or commissioning, may inadvertently undermine the intended integrity of the entire system. So you need to have enough robustness in the process so that a building, as constructed and commissioned, is built as per design or, if there are amendments made during the construction or the fit-out commissioning, that they are checked and certified to be appropriate to give the end outcome the design was after. That's a very critical point, in my view.

Senator KIM CARR: Thank you very much.

CHAIR: We are approaching time. I note that Senator Xenophon is going to place some questions on notice. Finally, Mr Hughes-Brown I note that, in your previous job with the New South Wales fire brigade, in that role you assess 9,000 performance solutions over a three-year period. That is an extraordinary number of permutations and combinations of situations that you would have to be across. Have we got to the stage where there is too much flexibility in the system for any one category of professional to be across and to be able to sign-off on?

Mr Hughes-Brown : In short: yes. That's why I highlight that the role of the certifier should be shared and not put on one person in one location. They've got a lot of other things to contend with, and there should be a balanced approach with it. Also, there's a lot of things that we deviate from in the code, like minor travel distance and other things, which we know will work provided you've got a balanced system in there. But, with certain fire service applications, they have to go to them for review. We should look at more of a national balanced approach to it, give that role to the fire engineers, have a peer review process, allow the fire services to focus on what they are experts on so they can focus on that and take responsibility and give other engineering or mathematics things to people who actually have that skill set.

CHAIR: Thank you very much, gentlemen, for appearing before us.