Page 568 - Week 02 - Thursday, 17 February 2005
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or occupier is no longer required to find out where it is or what its condition is. However, the owner/occupier is still required to convey information about asbestos about which he or she is actually aware.
The amendments define the term “tenant” to clarify to whom a duty is owed to be informed by the owner or occupier, and they postpone the commencement date from 1 March to 4 April 2005. I note that the scrutiny report states:
The amendment puts beyond doubt that it is not the intention of section 47J to require the owner or occupier to obtain an inspection report or to provide information beyond what he or she currently knows. The amendment does not displace the common law rules about the liability of owners or occupiers, however, in relation to their premises.
The new section 47K covers circumstances where asbestos may be disturbed and thus become hazardous. Under the original act the owner or occupier could have been obliged to conduct an extensive and costly investigation in order to discover the required information about asbestos. The amendments remove that obligation and liability. Essentially, the effect of the amendments is that an owner or occupier of a building is really only obliged to provide what he or she knows. The owner or occupier is no longer required to carry out further investigations as per section 47J unless a high-risk activity such as renovation or demolition is to take place. This is provided for in 47K.
As we are now well aware, asbestos can be a particularly nasty product. From all the advice now available, if it is left undisturbed it appears to be relatively safe, but when it is loose, damaged or friable it is in its most hazardous state. Exposure to asbestos fibres can result in diseases such as asbestosis and mesothelioma and this seems to be fairly widely documented and accepted by the medical fraternity. People who have suffered asbestos-related diseases have generally been exposed to dangerous fibres through their occupation, mainly in the building, mining and product manufacturing industries.
In Canberra homes until about 1983 there was widespread use of asbestos. I think we all know that for many years it was a very evident part of our life. I know as a child we had it in our own home and our garage and I think many people simply just took it as one of those postwar products that was widely available—a bit like the X-ray process with tuberculosis, nobody understood that frequency of exposure could have potentially long-term damaging effects.
The James Hardie episode, which seems to be an endless saga, has highlighted the suffering from asbestos-related diseases. The Australian government banned the import, manufacture and use of all forms of asbestos in Australia from 31 December 2003, and in the Australian Capital Territory the national ban was implemented by the Dangerous Substances (General) Regulations of 2004. The community these days is looking for assurances of greater margins of safety but the community realises that it must meet additional costs as part of this process. There was also concern that the legislation as it stood would allow asbestos inspectors to capture the market for providing required information.
There may be further amendments down the track based on experience but I am advised by the affected industries, particularly building and housing, that they are comfortable and supportive of the changes that have been put forward. There are plans for an
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