A total ban on asbestos came into effect in Australia on 31 December 2003 making it illegal to make, use or import asbestos in Australia. Despite this ban, asbestos that has been fixed or installed since 2003 is still being found in Australian workplaces.
The changes to the model WHS Act ensure greater certainty in the regulation of prohibited asbestos. In this context, prohibited asbestos means asbestos fixed or installed in a workplace after the prohibition on asbestos was introduced.
Under the changes, the WHS regulator must issue a ‘prohibited asbestos notice’ if they reasonably believe prohibited asbestos is present in a workplace. This is even if the asbestos is discovered long after any work involving it has been completed.
Existing provisions for improvement notices and prohibition notices already cover many cases where prohibited asbestos is identified. However, there was some uncertainty that the conditions for those notices meant some cases could only be addressed through a prosecution. These changes fulfil the intention that a notice be issued in all cases where prohibited asbestos is identified, to ensure the risks it poses are promptly addressed.
As this new form of notice simply addresses uncertainty about a possible unintended gap in existing powers under the model WHS laws, a public consultation process was not undertaken. Consultation was undertaken with Commonwealth, state and territory governments, employer and worker representatives, through Safe Work Australia’s usual processes.
The regulator will determine who receives the notice, recognising that there may be various people with responsibility for prohibited asbestos at a workplace because of different workplace arrangements and the complexity of modern supply chains. For example, the person conducting a business or undertaking (PCBU) at the workplace at the time the prohibited asbestos is discovered may not have caused the asbestos to be at the workplace, or be most able to comply with the notice and carry out measures to deal with the prohibited asbestos.
The notice will detail the measures that must to be taken to deal with the prohibited asbestos. Importantly, there is flexibility for a regulator to determine what measures must be taken.
While immediate removal of asbestos is the ideal outcome, it may not always be appropriate. For example, there may be circumstances where the prohibited asbestos does not present a risk to health and safety in its current state, but its removal may create a risk to workers or others at the workplace.
A notice will specify a period for compliance. The period must be reasonable in the circumstances.
In some circumstances, a regulator may issue multiple notices in relation to the same workplace.