Building a safer Queensland: Non-conforming building products regime set to apply to architects and engineers

By Frazer Moss

13 Sep 2018

The duties that already apply to persons broadly described as suppliers and installers in relation to non-conforming building products now apply to architects and engineers who specify or approve the use of building products.

From 11 September 2018, the chain of responsibility under the non-conforming building products regime in Part 6AA of the Queensland Building and Construction Commission Act 1991 (QBCC Act) has been extended to architects and engineers.

If you are an architect or engineer, you need to:

  • review the impact of the new amendments on your activities and understand how your insurance might be affected;
  • consider whether your current systems and contracts are sufficient to meet the new requirements; and
  • be aware of non-conforming building products and ensure that all duties in respect of them are met,

or be at risk of substantial penalties if you do not comply (some >$100,000).

Who is an "architect" or "engineer"?

Under the QBCC Act, an "engineer" is a person who is a registered professional engineer under the Professional Engineers Act 2002 (Qld). An architect is a person registered as an architect under the Architects Act 2002 (Qld).

Duties to apply to "architects" and "engineers"

The duties that already apply to suppliers and installers of building products will now apply to architects and engineers who, when designing a building, specify or approve a product to be used. By being part of the chain of responsibility architects and engineers must, amongst other things:

  • ensure that a product they specify or permit to be used is not a non-conforming building product (section 74AF of the QBCC Act);
  • ensure prescribed information regarding the suitability and use of a product is given with any design incorporating the product (section 74AG of the QBCC Act);
  • comply with the requirements of particular product recalls and recall orders, including to give information to others about the recalled product and amend designs that incorporate the product at the expense of the architect or engineer (section 74AH of the QBCC Act); and
  • notify the QBCC as soon as practicable (but within 2 days of becoming aware or reasonably suspecting) that a building product being used is a non-conforming building product (section 74AL of the QBCC Act).

A definition of "install" and "installer" has also been inserted to put beyond doubt that those terms include contractors who personally install the product, supervise the installation of the product, as well as those who procure the installation of the product.

"Architects" and "engineers" must comply with recalls

The Ministerial product recall regime under the Act will apply to architects and engineers as "responsible persons". They may be required by a recall order to give others prescribed information about a recalled product and take specified actions as a result of a recall, including undertaking redesign work.

How to get prepared for your new chain of responsibility obligations

Engineers and architects will need to:

  • get comfortable with the new obligations under the QBCC Act, including reporting concerns to the QBCC;
  • conduct an audit of all building products and processes used - you could be liable if you don't;
  • check liability and recovery of costs clauses in contracts; and
  • check new and existing insurance policies to understand what cover is provided in relation to non-conforming building products and when that cover might be lost.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.