Despite implementing a total ban on the manufacture, use, reuse, import,
transport, storage or sale of all forms of asbestos and asbestos-containing
materials (ACMs) within Australia from 1 January 2004, evidence to the inquiry highlighted
some ongoing issues that require attention.
This chapter explores concerns raised by stakeholders about the risk of
asbestos-related disease, the reality that Australian workers remain the last
line of defence in asbestos detection, and the apparent lack of enforcement of
the asbestos importation ban.
Asbestos-related disease risk
As noted in the previous chapter, exposure to asbestos can cause
mesothelioma, cancer and asbestosis (fibrosis of the lungs).
While historically asbestos-related diseases have been most prevalent among
workers involved in asbestos mining, milling, and manufacturing (the 'first
wave') and workers, such as labourers and tradespersons, who are the end-users
of asbestos containing material (the 'second wave'). Maurice Blackburn Lawyers explained
that in recent decades a third wave has emerged, people who have never worked
in what would be considered high risk industries, developing asbestos-related
The third wave of asbestos-related disease is characterised by low dose
exposure, primarily in non-occupational contexts, such home renovations, using
or working with products not known to contain asbestos or environmental
In addition, Maurice Blackburn Lawyers stated:
Australia was one
of the largest consumers of asbestos, per capita, between the 1950s and 1980s.
The result has been Australia has suffered the highest incidence of
asbestos-related diseases, per capita, in the world. It is estimated that over
10,000 Australians have died from malignant mesothelioma since the 1980s, that
another 15,000 will be diagnosed in coming decades, due to the long latency
period of the cancer, and the fact that Australians continue to be exposed to
Professor Bill Musk, appearing as a member of the Australian Medical
Association (WA) and with experience and expertise in the epidemiology and the
clinical care of patients with asbestos related diseases, explained to the
committee that 'one of the features of asbestos is that it is
indestructible—that is how it gets its name—so once it gets into the lungs it
tends to stay there and is very hard to remove, and as long as it is there it
can cause disease'. Professor Musk observed that while not every person that
breathes asbestos will get an asbestos–related disease. He noted that the
asbestos fibres sit in the lungs and are:
...removed by the
defence mechanisms of the lung at a ballpark rate of about five per cent per
year, but that means at the end of every year 95 per cent of them are still
there, and as long as they are there they can give rise to cancer, asbestosis
or things called pleural plaques or pleural thickening on the outside of the
Mr Ian Johnstone appeared before the committee as a member of the
Asbestos Disease Support Society. Mr Johnstone was diagnosed with mesothelioma
in 2016, after being exposed to asbestos during his 33 years in the
construction industry in Melbourne, beginning in the 1970s. Mr Johnstone
The reason for me
being here today is to try and stop any further person contracting
mesothelioma. In this day and age, that people can still be exposed to this
product, knowing now what I have and that there is no cure for my problem—it is
a disease not caused by me but by others. I was diagnosed in July of last year
and it has put a tremendous strain upon my family. It has made our lives change
completely. I wish that upon no-one in the future.
Ms Amanda Richards of the Asbestos Disease Support Society outlined the
changing demographics of those being diagnosed with asbestos related diseases
in recent years:
Up until 18
months ago, it was...people who had worked with asbestos products or had been
part of the mining industry. What we are seeing now is younger people coming
through. In the last 12 months we have had a few people in their 30s and 40s
come through, who have since passed away. Just before Christmas I was contacted
by somebody who was only 22 who had been diagnosed with mesothelioma and was
trying to understand how she could possibly have got the disease when she had
never worked with it, did not live in a house with asbestos in it et cetera. I
believe that the next wave is starting. Some people get it from their parents
refurbishing homes, but the younger ones are coming through now.
Another witness described the experience of workers discovering they
have been exposed to asbestos. Mr Steven Diston of the Electrical Trades Union
of Australia (ETU) explained:
I do not know if
you have ever been to a job where guys have been exposed to asbestos, but
basically you end up with an angry roomful of people who want answers, and
there are not many answers you can give these people. We got in a specialist in
asbestos law from Slater and Gordon, and she sat down with these people. The
long and the short of it is that if you have been exposed to asbestos, cross
your fingers and hope. You put your name down on the [national asbestos
register]...Employers will often say, 'You can put us down as the employer,' but
employers come and go. One of the biggest things is the absolute futility of
it: once you are exposed it is too late; there is nothing that can be done for
you; we do not have double lung transplants available. Asbestosis or
mesothelioma is a terminal sentence. I have been exposed to asbestos a lot, and
it is just cross your fingers.
Mrs Vicki Hamilton, OAM, Asbestos Council of Victoria/GARDS reminded the
committee 'there is no safe level to asbestos'. She described a 'tsunami of
asbestos products coming into our country' which needs to be stopped to prevent
unwitting exposure through products bought online or at a retailer.
The risk of asbestos exposure to the broader population has increased due
to the rise of online purchasing. The Asbestos Safety and Eradication Agency
(ASEA) also noted the risk arising from the increase in demand for sourcing
building products through online platforms such as the Chinese e-commerce
company, Alibaba. Overseas merchants are easily able to import and sell their
goods through this online business model to consumers around the world. The
reliability of these products can be severely questioned as a quick search on
the Alibaba website will identify a vast array of asbestos products. The Asbestos
Council of Victoria/GARDS Inc raised similar concerns in relation to goods
purchased through eBay.
In light of what we know of the dangers of exposure to asbestos, Maurice
Blackburn Lawyers, argued that 'we have a moral obligation to protect future generations
of Australians by actively taking steps to prevent the importation and use of
non-conforming building materials containing asbestos'.
Workers—the last line of defence
Given the serious health risks associated with exposure to asbestos, the
committee is worried about the ongoing risk to workers since the asbestos
importation ban was imposed in 2003. Of particular concern to the committee was
evidence that products containing illegally imported asbestos are most often
discovered by workers. For example, the asbestos at the Perth Children's
Hospital and 1 William Street in Brisbane was discovered by workers with
relevant occupational health and safety (OH&S) and asbestos awareness
Mr Thady Blundell, representing the Asbestos Disease Support Society and
Turner Freeman Lawyers noted that the discovery of asbestos at 1 William Street
'came about because a worker did not like the look of the dust and was
concerned that it contained asbestos. That led to inquiries being made and the
material being tested...So it was by chance'.
Mr David Meir, ETU, observed:
It is always the
workers because they are the ones dealing with it. We bear the brunt of
everything. We are the ones drilling the holes and going, 'Oh, that looks a bit
suss; what's this?' They get their health and safety rep over if they have got
one or they call in the union to suss it out. They say to their boss, 'What's
this?' If the boss is diligent, he will say, 'Oh, we'd better stop that,' or he
will say, 'Oh, don't worry about it; just get it done and paint over it'.
Mr Simon Pisoni from the Communications Electrical Plumbing Union (SA) explained
that it was also workers who discovered asbestos at the Nyrstar project in Port
Pirie, South Australia. Mr Pisoni explained:
members are made aware of the sort of material that you should be cautious of.
There's always that base knowledge of recognising what could contain asbestos
and then having the ability to raise it as a concern and have any material
tested. Even though the building of the plant at Nyrstar will be a new plant
and you'd expect that there wouldn't be any asbestos...the concern was raised
and, to their credit, Nyrstar went through the proper process of taking a
sample and having it tested. To their disgust, it was found that the cladding
Mr Peter Tighe, Chief Executive Officer of ASEA, observed that the
illegal importation of asbestos has created a new challenge for awareness
training. He noted:
The problem is
that new people that come into the trade in that area and since 2003, since
we've had zero tolerance—have an assumption that any new work don't have any
association with asbestos. But there is the legacy of asbestos.
Mr Dave Kirner, Construction, Forestry, Mining and Energy Union (CFMEU),
shared Mr Tighe's concerns about the renewed importance of asbestos awareness
We're now playing
a catch-up game because asbestos is reborn in the building industry. We're
having to go and talk to workers...starting at the ground again and distributing
stickers about asbestos and the union document 'Asbestos kills' so they
understand it. I was speaking to a group of three young workers the other day,
probably between 19 and 22, and I said, 'You probably don't know much about
asbestos, but it's highly dangerous.' One of them said, 'My grandfather died
from that.' So we are having to now go back and redo all that.
In relation to asbestos found on tugboats, Mr Paul Garrett from the
Maritime Union of Australia advised the committee that workers discovered
asbestos on vessels after due diligence checks had given the all clear and the
vessel had been returned to service.
Asbestos awareness training
Workers are often the last line of defence when dealing with illegally
imported asbestos. As such, the availability of asbestos awareness training for
workers is essential.
The CFMEU informed the committee that it was not a matter of luck that
lead to the discovery of asbestos by CFMEU members and subsequent successful
remediation at the 1 William Street site. The site delegate who first became
suspicious that asbestos was present had undertaken nationally accredited
Asbestos Awareness Training. It noted that 'identifying asbestos is a highly
The CFMEU advocated for introduction of mandatory asbestos awareness training
for 'a wide range of occupations in the construction industry and provide
adequate funding for nationally accredited training for this purpose'.
Maurice Blackburn Lawyers expressed concern that 'the Australian
population is becoming increasingly unaware of the precise dangers that
asbestos poses, as well as how to identify or protect themselves from products
which contain asbestos'.
It noted the building products containing asbestos pose a health risk to
workers, but also to the general population of Australia. It explained:
The issue is
especially vexing as there is a growing 'information gap' amongst workers and
the general public. In Australia, public awareness concerning the dangers of
asbestos peaked in the 1980s and 1990s in the wake of campaigning by activists,
trade unions, parliamentarians and the media to ban the use of asbestos.
The risk to the broader population of illegally imported asbestos is
amplified by the rise of online purchasing.
Maurice Blackburn Lawyers was particularly concerned that there is a
growing assumption that asbestos is a danger of the past. Mr Steve Diston from the
ETU held a similar view, he had found that apprentices are being desensitised
to asbestos. He noted further:
But I tell you that
one thing that would be bloody handy would be that, in all the apprenticeship
training, any apprentice should have asbestos awareness as a unit of competency
in their apprenticeship. I am a licensed electrician as well. If you spend any
time on Facebook groups about electrical advice, at least once a week there
will be someone posting a picture of a material, saying, 'Do you reckon this is
asbestos or not?' because we do not get trained in it. Unless you are at a
decent union workplace where it is pushed, you are just not going to get that
Maurice Blackburn Lawyers was of the view asbestos awareness training
should be a mandatory requirement in government contracts, asserting that:
and territory governments should adopt a standard condition in any contract
with private industry for major public projects, that contractors provide
asbestos awareness training to workers (and provide the Government with proof
of that training), where such projects will include the use of imported
Such training should
involve training workers to identify possible asbestos materials on the
building site, as well as what precautions should be taken to avoid exposure.
At a Supplementary Budget Estimates hearing in October 2017, Mr Peter
Tighe, CEO of ASEA observed:
Employers in the
industry and employee organisations in the industry are starting to require
asbestos education as a fundamental in place. We just registered a course with
ASQA [Australian Skills Quality Authority] for the utilities sector for
training of awareness for all players in that area—that means direct employees
and contractors. I think that responds to the information that you're probably
hearing about the need for universal asbestos awareness programs for those
people who may come across it in their normal occupational areas. The secondary
one, though, is this need for those people who are going to run across it as a
non-occupational understanding about what is going on. Certainly, in the trades
and in the apprenticeship area, we're finding from our building construction
advisory committee that they would like to move ahead with some universal
The committee understands that identifying asbestos is a highly
specialised task. However, the committee is deeply concerned by evidence that
Australians working in the building and construction industry are becoming
increasingly unaware of the precise dangers that asbestos poses, as well as how
to identify or protect themselves from products which contain asbestos.
In order to mitigate the risk of exposure to asbestos, particularly
asbestos that may have been illegally imported but is yet to be discovered, the
committee believes that mandatory nationally accredited asbestos awareness
training should be introduced for a wide range of occupations in the
construction industry. To this end, the committee encourages the Australian
Government to ensure adequate funding is provided for this purpose.
The committee recommends that the Australian Government require
mandatory Asbestos Awareness Training for a wide range of occupations in the
construction industry and provide adequate funding for nationally accredited
training for this purpose.
The WA Building Commission's audit report in September 2016 found that
the presence of asbestos containing material in the Perth Children's Hospital
revealed that awareness of the risk of inadvertent procurement of asbestos
containing materials (ACMs) within the supply chain appears to be low.
ASEA submitted that Australia needs to develop a holistic approach to
supply chain management in order to address the problems regulators are
currently facing with regards to imported ACMs. Following discussions with a
wide range of stakeholders, from customs brokers to manufacturers to government
representatives and customs staff, ASEA was of the view that 'changes to the
supply chain must start at its roots'. It noted that many of its stakeholders
were seeking more information from ABF in order to ensure they were compliant.
ASEA considered that asbestos awareness programs targeted at designers,
architects or planners could have resounding impacts through the supply chain.
Noting that by focussing on the design, quality standard and contractual
stipulation stage quality non-compliance could be weeded out. 
ASEA also noted the importance of sourcing, particularly as the market
is so attached to the cheapest option.
Ai Group also noted that procurement policy that places all emphasis on
minimising cost will exacerbate the problem.
In addition, ASEA advised that customs brokers need to be highly aware
of these issues and high risk products. Noting that they need to continually
liaise with suppliers and clients to meet their due diligence requirements.
The Construction Products Alliance, a collective of public and private
organisations that is working to promote awareness of non-conforming building
products, emphasised the importance of educating industry, clients and
consumers about the countries that have not banned asbestos and the associated
Mairin OHS&E Consulting, an Australian company which provides health
and safety consultancy services, suggested that asbestos awareness programs
focused on the risk of illegal importation of asbestos could assist ABF with
its workload by raising the level of general awareness and the ability to
identify high risk products before they enter Australia. It noted that the published
information that is currently available online can be difficult to locate.
Ms Carolyn Davis noted:
promoting nationally consistent information is important and needs to involve
all stakeholders. Solutions that focus on one part of the supply chain have not
worked. A one-stop-shop for everyone to access consistent trusted information
is a step in the right direction. Nationally agreed guidance on a national
website would increase public and industry awareness of and confidence in the
available information. A unified approach is needed that can be used to promote
overseas especially to those involved early in the supply chain.
There is no doubt that there is a real risk of inadvertent procurement
of asbestos containing building materials within the supply chain, and the
committee is concerned about the apparent lack of awareness of this risk. The
committee is of the view that in order to stop asbestos containing building
materials at the contractual stipulation stage, asbestos awareness programs
need to be provided across the supply chain (including for example to
architects and designers) and not limited to building and construction industry
workers. As ABF is the operational arm of the Department of Immigration and
Border Protection (DIBP) who enforces the ban on the importation of asbestos,
the committee believes that they are best placed to develop and implement such
The committee is concerned by evidence that there is a lack of awareness
across the supply chain of the risk of inadvertently procuring building
materials containing asbestos. The committee considers that raising the level
of awareness and the ability to identify high risk products before they enter
Australia is paramount to reducing the risk of inadvertently importing
asbestos. The committee notes that the information that is currently available
online regarding this risk can be difficult to locate and believes that
consideration should be given to developing a single online portal for the
purpose of educating building industry participants, importers and consumers
about the risk of inadvertently procuring asbestos containing building
materials within the supply chain.
The committee recommends that the Department of Immigration and Border
Protection and Australian Border Force consider the merits of developing and
implementing a comprehensive education campaign for all importers of the risk
and responsibilities regarding asbestos containing materials and the definition
of asbestos containing materials used in other countries.
The committee recommends that the Asbestos Safety and Eradication Agency
develop a one-stop-shop website to provide single point for participants across
the supply chain to access information regarding the illegal importation of
Enforcement of the asbestos importation ban
Mrs Hamilton from the Asbestos Council of Victoria/GARDS stated that
since asbestos importation was banned in 2003, 'products containing asbestos
have been flowing into our country with no checks'. She suggested:
We were foolish
enough to think we could pass laws and everyone would obey them. No-one thought
to do regular checks on products after the ban was initiated. We have only
realised in recent times just what asbestos is in these products and how varied
those products are and how wide-ranging they are, affecting all Australians,
from the very young—children—right through to the old.
Mr Colin Brame from the Customs Brokers and Forwarders Council of
Australia Inc. also noted that there were no measures put in place at the time
of the ban to ensure it was enforced. He advised the committee that when the
ban came into force at the end of 2003, there were no industry wide notices
advising of the changes, nor were there community protection questions put into
the customs system for customs brokers to answer: 'do these goods contain
As such, customs brokers were not required to ask what due diligence had
been done to ensure a product is asbestos free. Mr Brame explained that 'the
law came out that there was nil asbestos into Australia but that did not flow
into the customs side of things as a proactive question for us to follow up
with importers and their suppliers'.
Mr Brame noted that it was not until August 2016 that ABF introduced the
community protection question into the system, thirteen years after the ban was
Mr Andrew Mantle of Asbestos Audits & Environmental Audits Pty Ltd (AARMS),
a specialised asbestos surveying company, likened the current requirements to
prevent the illegal importation of asbestos to asking 'the fox to guard the
At the moment,
within Australia, whilst we have the regulations saying, 'A product has to be
asbestos free or meet the Australian/New Zealand standard,' there is no testing
of that product prior to its import into Australia. All we originally required
was a declaration or some form of proof or documentation that states that the
product is asbestos free.
Mr Mantle considered that importers and companies were unlikely to
undertake asbestos testing prior to import into Australia unless they had a
shipment held at wharf by ABF.
He explained that there is no mandatory requirement for importers to ensure
products are asbestos free:
It is in the ABF
leaflets that go out to the customs and trade brokers that they highly
recommend that any products being imported must comply with the regulations,
and that may require testing and further documentation. But to date,...I could
not name five companies that are actively seeking to have building products
tested or the factories in China audited to ensure that the products are
In relation to the incidents where products it had supplied were found
to contain asbestos,
Mr Kevin Will from Yuanda Australia informed the committee that at 'no point
previous were we ever asked to supply a certificate to say this product was not
He confirmed in a response to a question on notice that there was no such
requirement imposed on Yuanda Australia.
Mr Will advised the committee that Yuanda Australia has now implemented its own
testing regime 'which sees every batch of samples tested under procedures
established by our Australian consultants, OccSafe. These test samples are then
brought to Australia by a licensed importer in order to be tested in a
Mr Michael Borowick, from the Australian Council of Trade Unions (ACTU)
suggested that the apparent failure of enforcement of Australia's asbestos ban
could also be due to a loss of momentum and shifting priorities of ABF. He
I suppose there
must have been a great deal of momentum in the lead-up to the ban being imposed
in 2003. I wasn't involved at the time, but I'd say there would've been a whole
number of things. Things had came together and there was momentum, and the
Howard government at the time did the right thing....For some reason the
momentum has dropped away. Perhaps, in terms of Border Force, the priority has
been on people coming to Australia, drugs and guns, and asbestos hasn't been
where the focus has been, and government hasn't given the appropriate direction
to the relevant agencies to make it a priority.
Mairin OHS&E Consulting held a similar view:
It is our
experience and view that in the sixteen (16) years since the ban came into
effect there has been an overall growing complacency amongst importers and
end-users on the risks associated with imported asbestos products entering
Australian workplaces and homes. Policing and education on the extent of the
asbestos importation problem by government departments (at both state and
federal levels) during the same period. appears outwardly haphazard and under
resourced with only a limited number of high profile cases being reported through
popular media. 
The tip of the iceberg
Mr Robert Kelly from WorkSafe Victoria provided evidence to the
committee about recent use of the rapid response protocol to respond to
incidents of asbestos.
He observed that in 2017, WorkSafe Victoria had seen an increase in reports of
We are getting
the calls more frequently, whether it is the gaskets, the brake pads or quad
Mr David Clement of Asbestoswise expressed surprise at the number and
range of incidents of asbestos, explaining:
That has slightly
taken our breath away. On the argument that it is the tip of the iceberg, you
look at how it has been identified: it has been identified by workers, by
unions and by groups like [Asbestos Council of Victoria/GARDS]. In the case of
the quad bikes, it was by a whistleblower. The majority of cases have not been
identified by the authorities. I think what that tells us is that the tip of
the iceberg may well be the case.
The ACTU also expressed the view that recent incidents 'in all
likelihood represent the tip of the iceberg and the real incidence of illegal
importation is masked by a combination of the lack of enforcement and the
ineffectiveness of the ABF in detecting ACMs'.
Mr Daniel Morgan from Coffey, a company which provides asbestos services,
expressed the view that asbestos was so widespread in building products that
'the only way to completely stop it would be to use a domestic product'. He
I personally feel
that it would be impossible to stop it from coming in. There are so many
building materials that could potentially contain asbestos, not limited to
fibre cement. It is in mastics, it is in sealants, it is in glues, it is in
thermal insulation. We are asked on a regular basis to go overseas and do
checks for some major corporations in Western Australia. We are heavily
involved in the maritime industry, where we do find asbestos gaskets on new
ships that are stopped from coming into Australian waters because of the
asbestos onboard. I believe that a very, very rigorous inspection process would
not stem the tide of asbestos coming onto our shores.
Mr Dave Kirner from the CFMEU considered the recent influx of illegally
imported asbestos products to be the next wave of danger to workers:
I don't think
there's enough public awareness. The first wave was in manufacturing, then the
building workers and then the home renovators, and now it's back. Sadly, the
Royal Perth Hospital was a tier 1 major project. The materials were imported by
a major builder, a major contractor, and that's where we're finding the
problems as well. So, on asbestos, I think there's a lot of work to do.
Stopping asbestos at the border
As noted in Chapter 2, since ABF's establishment on 1 July 2015, the
Department of Immigration and Border Protection (DIBP) and ABF have
significantly increased the strategic and operational focus on goods that pose
a risk of containing asbestos. These include:
undertaking risk assessments;
commencing a sampling programme;
enhancing risk profiles, establishing of a 'community protection
question' for importers;
requiring the testing of goods that are suspected of containing
asbestos; seizure of goods containing asbestos;
raising awareness and engaging with customs brokers and
international governments, customs agencies and suppliers; and
increased engagement and coordination across jurisdictions.
The Construction Product Alliance observed that 'the reality is that,
for imported products, the Federal Customs (Border Force) has limited capacity
to physically check, at the point of arrival into the country, the many
thousands of products or materials that may contain asbestos'.
The committee is aware that a large number of imports arrive in
Australia each year. In 2016–17, ABF processed a total of 41.9 million air cargo
consignments and 3.2 million sea cargo reports.
A number of submitters were of the view that the DIBP and ABF were
under-resourced for the task of preventing the illegal importation of asbestos.
The ACTU welcomed ABF's recent focus on an established problem, after years of
government inaction. It expressed concern that the resources available to the DIBP
and ABF may not be sufficient to effectively monitor and prevent the illegal
importation of asbestos.
Mr Geoff Fary, former Chair of the Asbestos Management Review (2010–12)
and the Asbestos Safety and Eradication Council (2013–16) noted that as there
is now a history of illegal importation of asbestos, it is possible to predict
both the high risk countries of origin and the types of products likely to
contain asbestos (i.e. East Asia and in building materials, motor vehicles
etc). As such, Mr Fary suggested:
It shouldn't be
beyond the resources and wit of the [ABF] to identify appropriate targets for
comprehensive inspection, testing and analysis.
On the other hand, the Housing Industry Association (HIA) stated that
while a complete ban on asbestos would appear to be the highest level of
regulation, enforcement is extremely difficult. It considered that the 'reality
is that Federal Customs (Border Force) has limited ability, and even more
limited resources, to physically check products at the point of arrival into
In order to prevent the illegal importation of asbestos, HIA considered
the most important change would be to ensure that building product
manufacturers, regardless of their country of origin, understand the
expectations of the Australian government in relation to product conformance requirements.
Mairin OHS&E Consulting suggested a dedicated specialist unit within
ABF could prove useful to identify high risk imports. It explained:
Border Force is on
the frontline for interception of imported asbestos goods but on balance
appears to be under resourced to do so. Given the extent of biological and
chemical contraband that they are responsible for preventing entering Australia
this is understandable.
The DIBP informed the committee that it does not have dedicated staff
who specialise in identifying asbestos. Rather, resources are applied according
to the ABF's risk assessment processes and staff resources are not allocated to
specific risks for regulated goods.
The committee notes the large number of imports arriving each week in
Australia which may contain asbestos, and recognises the work of the DIBP and ABF
to increase the strategic and operational focus on goods that pose a risk of
containing asbestos. However, the committee considers that increased resourcing
would increase ABF's ability to physically check products at the point of
arrival into Australia.
The committee is concerned that ABF does not have dedicated staff who
specialise in identifying asbestos. While the committee understands that
resources are applied according to ABF's risk assessment processes and staff
resources are not allocated to specific risks for regulated goods, the
committee believes that the establishment of a dedicated specialist unit within
ABF has the potential to increase the identification of asbestos at the border.
The committee recommends that the Australian Government review the
Australian Border Force staff resourcing required to effectively monitor and
prevent the illegal importation of asbestos.
The committee recommends that the Australian Government consider the
merits of having a specialist unit within Australian Border Force to manage
illegal asbestos importation.
Prosecutions and Penalties
The committee heard from a range of submitters that there is a need for
a greater focus on enforcement, including prosecution and penalties, to
effectively deter the illegal importation of asbestos. In responses to
questions on notice provided in February 2017, the DIBP informed the committee
that in recent years there have been three successful prosecutions for
In 2008, Alcan pleaded guilty to seven charges for importing
equipment containing asbestos in breach of section 233(1) (b) of the Customs
Act. The Court fined Alcan $70,000 and costs of $20,000.
In 2012, the Court found an international engineering company,
Clyde Bergemann Senior Thermal Pty Ltd (CBST), guilty of two counts of
importing prohibited imports, namely chrysotile asbestos contrary to section
233(1) (b) of the Customs Act. The Court fined CBST $64,000 including costs.
In December 2014, the Court found a 50-year-old Australian man
guilty of importing asbestos and fined him $10,000 and costs of $4,500.
In February 2017, the DIBP also noted that since ABF was established in
2015, four infringement notices for a total value of $31,950 have been issued
relating to asbestos. Three formal warning letters have been issued, with
penalty action currently being considered for the remainder of the detections.
On 12 August 2017, it was reported that Yuanda Australia had received
three infringement notices.
With reference to these infringement notices, Mr Borowick from the ACTU did not
consider the penalties to be adequate, he stated:
The most notable
incidence of asbestos importation to Australia in the last year has been that
of Yuanda, a Chinese building products manufacturer. This asbestos was
discovered on building sites throughout Australia, and there was evidence
before the committee about that. After investigation Australian Border Force
issued Yuanda with an infringement notice for each detection. An infringement
notice cannot exceed $15,750—a paltry amount for a company that has in excess
of $1 billion in revenue.
Mr Borowick also noted 'the ban hasn't had any real deterrent effect,
and the reality is that you can import asbestos into Australia with impunity.'
The ACTU suggested that the quantum of penalties be reviewed, stating:
appalling record on successful prosecutions and the insignificant quantum of
penalties applied to guilty parties, it’s no wonder the system fails to protect
the community. $90,000 is akin to a slap on the wrist for a multi-billion
company like Rio Tinto Alcan (Rio). These sort of judgments against companies
like Rio do nothing to encourage importers to perform due diligence on the
contents of products being brought into Australia.
Master Builders' Australia also considered that increasing penalties
would be a positive step and would send an important message to the community
and building industry participants. It stated:
In much the same
way that the Commonwealth has established significant penalties for those who
seek to import narcotics and firearms, penalties for those who import ACMs
should be set at a level that is an appropriate dis-incentive against such
conduct. A penalty regime that deters non-compliances with the law will be a
positive step and send an important signal to the community and building
Similarly, Mr Geoff Fary considered that 'what is required is the
political will to prosecute and substantially penalise those parties found to
be in breach'. He commented:
Australia having a
comprehensive regulatory ban on the importation of asbestos containing products
will amount to little if there are no effective consequences in place should
the ban be flouted...The sad and disgraceful history of the asbestos industry is
replete with examples of innocent people contracting incurable terminal
diseases as a consequence of the greed of others who have taken the chance of
flouting the law. Lots of publicity and provision of information has little of
the deterrent factor of prosecution and penalisation of those found to be in
breach of our laws.
HIA warned that 'complacency leads to lax practices', and argued for better
enforcement of existing regulations. 
The Construction Product Alliance made a similar argument:
appropriate level of enforcement and education by the relevant regulatory
agencies. the existing regulatory system does provide a sound basis for the
supply and use of conforming building products in Australia. However, the
effective enforcement of the regulatory structure has failed, in part through
lack of commitment to take strong action, and also as a result of the system
failing to keep pace with the changing nature of the building product supply
chain that is now a global marketplace.
Maurice Blackburn Lawyers maintained that the Australian Government
needs to be more active in enforcing penalties. In its view, it may be
necessary to adopt 'a zero-tolerance approach to perpetrators, and or a
commitment of greater resources to investigations and prosecutions'.
The ETU considered the small number of prosecutions for illegal
importation of asbestos was evidence the current system is flawed and argued
for an independent review of the legislation and regulations governing the
importation of asbestos.
The ACTU believed the current regulatory framework 'is failing the
community, as evidenced by continued detections of asbestos and ACMs in
imported goods and the very limited number of full investigations and
subsequent prosecutions since the prohibition was introduced in 2003'.
The ACTU highlighted that the independent review conducted by KGH Border
Services found that the limited number of investigations and prosecutions was
due to the difficulty to 'prosecute against the honest and reasonable mistake
of fact defence, which is available in relation to the importation offence as a
strict liability offence'. The ACTU noted that the KGH Review recommended that
the department further prioritise the investigation to improve prosecution of
offences related to asbestos importation.
The ACTU noted that the importation of asbestos or ACMs is a strict
liability offence. It noted:
between strict and absolute liability is that strict liability allows a defence
of honest and reasonable mistake of fact to be raised while the application of
absolute liability does not. Instances of absolute liability may also commonly
involve displacement of the defence of mistake of fact by specialised statutory
defences which narrow its scope, such as 'due diligence' or 'reasonable steps'.
The ACTU recommended changing the existing offence to an absolute
liability offence by removing availability of the mistake of fact defence, as
'offences of absolute liability are generally considered more appropriate and
will provide a more effective deterrent where the defendant is well-placed to
take extra care to ensure that the offence is not committed.
Alternatively, the ACTU recommended 'narrowing the operation of the honest and
reasonable mistake of fact defence (for example, by introducing specialised
statutory defences). 
Ai Group argued that prosecutions should be pursued in circumstances
where there has been a deliberate attempt to import asbestos containing
products, whilst promoting them to be asbestos free. It noted:
acknowledges that there may be some circumstances where organisations knowingly
and willingly import asbestos containing products for commercial gain,
promoting it as a product that does not contain asbestos; this may include
counterfeit products that claim to be a branded product or part.
organisations should be prosecuted to the full extent of the law, be required
to recall all products and be responsible for the costs associated with removal
and disposal. 
However, Ai Group drew a clear distinction between circumstances where
illegal asbestos importation was unintentional. In its view:
associated with ensuring that an imported product does not contain asbestos can
result in an organisation inadvertently importing asbestos containing products,
even after they have exercised a high level of care to minimise the risk of
The DIBP informed the committee that ABF makes decisions on whether or
not to prosecute based on the Prosecution Policy of the Commonwealth, whether
there is sufficient evidence to prove the offence, and whether there are
reasonable prospects of a successful conviction.
The DIBP noted that it is difficult to prosecute asbestos matters
because of the availability of the mistake of fact defence. This allows an
importer to avoid liability that flows from the prohibited importation by
providing evidence that it has exercised due diligence. To do so, the company
typically tries to show that it took all reasonable steps to prevent the
infringement from occurring.
Mr Wayne Buchhorn from the DIBP provided the hypothetical example to
demonstrate where the mistake of fact defence may be applied:
...if there were
invoice evidence that stated that a product was asbestos free, that may satisfy
the courts that the mistake of fact defence was available in that instance. So
I would suggest it is a fairly high threshold to get over to prove that the
company or the individual knew that they were importing asbestos.
The committee notes evidence received from a range of submitters that
there is a need for a greater focus on enforcement, including prosecution and
penalties to effectively deter the illegal importation of asbestos. The
committee also acknowledges the challenges of enforcing the existing
importation of asbestos offence, and in this light, believes that a review of
the relevant provisions of the Customs Act 1901 (and other relevant legislation)
should be conducted. The committee is particularly concerned that the mistake
of fact defence is not operating as intended. In this context, while the
committee acknowledges that there are complexities associated with ensuring
that an imported product does not contain asbestos (see discussion on
inadvertent procurement at 3.27 and due diligence at 4.21, it considers that the
current threshold required to make out the mistake of fact defence should be
The committee is concerned by the apparent lack of enforcement of the
importation ban since it came into force on 31 December 2003, and considers
that there needs to be a greater focus on prosecutions for importing asbestos.
The committee believes that increasing the number of successful prosecutions
and reviewing the quantum of penalties would have a significant deterrent
effect on the illegal importation of asbestos.
The committee recommends that the Australian Government review the Customs
Act 1901 (and other relevant legislation) to address the challenges of enforcing
the existing importation of asbestos offence, with the aim to close loopholes
and improve the capacity of prosecutors to obtain convictions against entities
and individuals importing asbestos. This review should include consideration of
increasing the threshold required to use 'mistake of fact' as a legal defence.
The committee recommends that the Australian Government prioritise
prosecution of illegal asbestos importation cases.
The committee recommends that the Australian Government review the
quantum of penalties for breaches of Australia's importation ban with a view to
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