Increasing accountability and reducing exposure
This chapter begins by examining the importance of product testing and
the need for greater accountability and individual and corporate responsibility.
It then looks at the adequacy of Australia's work health and safety legislation
and the role of
relevant regulators in reducing the risk of asbestos
exposure for workers. Finally, the chapter will consider issues around recall
powers for consumer products containing asbestos and concerns about the importation
of ships containing asbestos.
National Association of Testing Authorities, Australia (NATA) is the
national authority for accreditation of testing laboratories and a peak
authority for accreditation of inspection bodies. NATA accredits testing
laboratories for the identification of asbestos related to air monitoring and
in bulk materials. Laboratories that hold accreditation for testing products
and materials for the Australian regulatory requirements undertake analyses in
accordance with the Australian Standard AS 4964 Methods for the qualitative
identification of asbestos in bulk samples.
NATA is a signatory to the two international arrangements that
facilitate the acceptance of test and inspection reports across international
the global International Laboratory Accreditation Cooperation
(ILAC) Mutual Recognition Arrangement (MRA); and
the regional Asia Pacific Laboratory Accreditation Cooperation
(APLAC) Mutual Recognition Arrangement.
Importantly, in relation to this inquiry, NATA highlighted a range of
issues and challenges with identifying asbestos in imported products,
the difference in international requirements and vocabulary
around what is considered 'asbestos-free';
test sampling may not be representative of the products being
testing methods and reports may not reflect Australia's strict
zero-tolerance requirements; and
there are no rapid screening tests or instruments that can be
used at the border for an immediate result.
NATA informed the committee that since mid-2015, it had received a
significant increase in enquiries requesting information around asbestos
In response to these enquiries, NATA stated that it had produced two
Industry User Guides (with input from the Department of Immigration and Border
Protection (DIBP) and the Asbestos Safety and Eradication Agency (ASEA)) on how
to use the services of accredited infrastructure to achieve compliance with
NATA also advised the committee that it had
...presented a summary of testing
issues to the Commonwealth's interdepartmental committee on asbestos, and we
are currently collating additional information from our counterparts around the
world on methodologies and the availability of accrediting and testing
Mr Paul Goldsbrough from the Queensland Office of Industrial Relations
noted the difficulties of dealing with illegally imported asbestos in building
products after it has already come into the country and been installed. In his
view 'it would be desirable to have a more robust, up-front testing regime for
imported products so that we are not put in the position where it is appearing
in our workplaces'.
The Housing Industry Association (HIA) observed that where asbestos is found
in a building product, it is likely to be within the product. This makes
discovery more complicated as the asbestos can only be found though destructive
testing, which is unlikely to occur before a potential problem has been identified.
Customs, and all
other parties in the supply chain, continue to rely on testing and
certification undertaken by the manufacturer of building products to verify
they meet relevant standards. If this documentation arrives with the product it
is taken on face value.
In each of the
recent incidences of asbestos in commercial construction materials, this
appears to be exactly what occurred. The manufacturer has provided
certification that the product is 'asbestos free'. However once tested on site
in Australia after the material has been used, this has been found to be
Mr Andrew Mantle from Asbestos Audits & Environmental Audits Pty Ltd
(AARMS) considered that given the large number of imports arriving each week in
Australia (over 10,000 containers), it is unrealistic to think ABF has the
capacity to screen and inspect every container. In his view the responsibility
should lie with the companies importing the products:
I think that the
issue relates to a demanding of companies to comply with proving their product
is asbestos free prior to it entering into Australia; that's the real issue.
The ABF have provided a very detailed guidance to the customs and trade bodies,
that anyone importing plant and equipment into Australia must provide proof
that the goods are asbestos free. But, from our experience, self-declarations
from companies in China or laboratory certificates from laboratories in China
are not worth the paper they're written on. It's very easy for a Chinese
company to simply declare their product to be asbestos free, because, under the
terms of asbestos free in China—six per cent or less asbestos—they are actually
complying with the Chinese regulation; they just are not complying with the
The Customs Brokers and Forwarders Council of Australia Inc. also noted
that it is the responsibility of the importers to ensure they meet the
regulatory requirements. In particular, it noted that the regulatory burden for
compliance should be placed on importers, not on licenced customs brokers.
The committee notes that ABF's website advises that:
not assume that goods labelled 'asbestos free' are in fact free of asbestos or
that testing of goods undertaken overseas certified 'asbestos free' meet Australia's
border requirements. Some countries can lawfully label or test goods, declaring
them asbestos free, if they are below a certain threshold.
However, Mr Mantle from AARMS, pointed out that:
There is no forced
requirement [for product testing]; it is suggested. 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 asbestos free.
Most importantly, NATA notes that:
It must be
highlighted at this point that the Australian Standard is not mandated. The
requirement of the Customs (Prohibited Imports) Regulations 1956 is that
asbestos is not present and the subject of testing is not addressed. As such,
there is no legal obligation to use AS 4964 and also no impediment to the use
of another equivalent or better method.
Mr Borowick from the ACTU considered:
The absence of
mandatory testing has been a recipe for disaster, in our respectful view. The
importation of non-complying products undermines the local industry and jobs
because they are cheaper to manufacture and the local industry is denied the
ability to compete on a level playing field and are put at a cost and
Mr Mantle from AARMS, noted that the European Union (EU), which like
Australia, has a ban on the importation of all types of asbestos, could provide
a model for testing requirements. He noted that 'from what I have seen of the
EU requirements for certain processes, they are very intensive and very
documented. They ensure a very high level of compliance'.
The EU have a
range of regulations, and the EU have a number of very extensive testing
organisations within China—their own people and their own staff—so European
companies have operations within China. They are able to do this because the EU
regulations force them to have this testing and these certifications done prior
to delivery into Europe.
The committee acknowledges that where asbestos is contained in a
building product, it is most likely to be bound within the product itself,
making it difficult to discover without destructive testing.
Despite this, the committee believes that Australia needs a more robust,
up-front testing regime for imported products than currently exits. Australia
needs to strengthen its requirements to prevent the illegal importation of
asbestos and to avoid Australian workers and the public being unnecessarily
exposed to the risks of asbestos.
Noting that it is impossible for ABF to effectively screen and inspect
all imported goods, the committee considers that at a minimum, where importers
are importing materials that have been deemed a high risk of containing asbestos,
it is appropriate for the Australian Government to require them to conduct
laboratory testing to confirm they are not illegal prior to import. In
implementing up-front testing requirements, the committee notes that the
European Union has extensive testing requirements to support its asbestos
importation ban which could provide a useful model for an Australian regime.
The committee recommends that where an importer intends to import goods
that have been deemed high risk of containing asbestos, the Australian
Government require the importer, prior to the importation of the goods, to
conduct sampling and testing by a NATA accredited authority (or a NATA
equivalent testing authority in a another country that is a signatory to a
Mutual Recognition Arrangement).
The committee recommends that the Government examine the European
Union's regulations and processes for testing of products for asbestos prior to
import and determine if it is suitable to adapt them to benefit and enhance
Due diligence systems
The committee heard evidence regarding a number of incidents of
illegally imported asbestos. One of these incidents was the discovery of
asbestos at the new Perth Children's Hospital. In July 2016, during work
undertaken on the new Perth Children's Hospital it was discovered that
composite roof panels that were custom manufactured for the atrium roof were
found to contain chrysotile asbestos following analysis by a NATA accredited
laboratory. John Holland was the contractor for the Perth Children's Hospital. Yuanda
Australia was subcontracted to import the panels, which were sourced by Yuanda
China from various suppliers for assembly in its factory. It was taken at face
value that the supporting certification documentation back through the supply
chain demonstrating the panels were asbestos free was correct.
The WA Building Commission's audit of building products at the Perth
Children's Hospital found a range of contributing factors leading to the
presence of asbestos in the roof panels including:
the product was sourced through a complex supply chain, in an
international market, with differing legislative requirements in relation to
all stakeholders relied on country-of-origin documentation
without further testing in Australia; and
none of the organisations in the supply chain for the roof panels
had a system to require asbestos testing for components and materials that do
or may contain fibrous materials.
As noted in the previous chapter, Yuanda Australia advised that it had
changed its practices in response to the incident at Perth Children's Hospital
and 1 William Street in Brisbane. 
John Holland also advised that it had implemented a number of changes.
Mr Lindsay Albonico from John Holland advised:
John Holland has
implemented a number of changes and processes to strengthen its
quality-management system and processes, including but not limited to updating
standard contract templates to include a requirement that all materials must be
certified as asbestos-free. Specifically, this requires testing to be in
accordance with AS4964 2004 method for the qualitative assessment of asbestos
in bulk samples. In this instance of international procurement, overseas
laboratories must be recognised as being equivalent to a NATA accredited
The WA Department of Treasury also had a role in respect to the Perth
Children's Hospital, as its strategic projects division is responsible for the
oversight of the delivery of the government's major building projects. Mr
Richard Mann from the WA Department of Treasury advised that the department had
changed its practises in direct response to the discovery of asbestos at Perth
This incident has
certainly alerted us to an enhanced risk of a recurrence in imported material.
In direct response, we have now included a provision in all our contract
templates that allows us to direct the contractor to undertake testing in
Australia of any imported materials. That will be assessed on a risk basis, but
any materials, for example, of a fibrous nature, such as cement fibre sheet,
with a potential to contain asbestos material would be a higher priority for
testing if the compliance documentation, including any test certificates, were
not adequate to convince us that the material was conforming.
Another incident of illegally imported asbestos involved South
Australian company Robin Johnson Engineering. In late 2015 it was discovered
that several batches of asbestos cement board were imported by Robin Johnson
Engineering over several years and installed as flooring in prefabricated
switch rooms, which have then been on-supplied to other 'persons conducting a
business or undertaking' (PCBUs) in South Australia, New South Wales,
Queensland, Victoria and the Northern Territory. The switch rooms commonly
contain control equipment, cabling and other heavy low and high voltage
Robin Johnson Engineering advised that they no longer rely on the
certificates they receive and have 'much more onerous testing regimes, and we
test anything that could be contaminated with either asbestos or any other
banned substances prior to them being shipped'.
Strengthening due diligence
The above reports of individual organisations reviewing their own
processes following the discovery of illegally imported asbestos, aligns with
ASEA's view that due diligence needs to be reinforced when it comes to sourcing
of products, suggesting:
arrangement should be used to strengthen and enforce everyone's compliance with
due diligence requirements, an example being when a consultant is sent to
supervise or monitor the work.
In particular, ASEA noted the significant risk posed by the failure of
Australian companies to undertake due diligence before products are imported
into Australia. ASEA explained:
building materials imported into Australia from Chinese manufacturers and
suppliers could contain ACMs, especially considering China is still a major
producer of asbestos. In addition to mining asbestos, China imports
approximately 50% of the world’s mined asbestos, and has no legislative
prohibitions on manufacturing or exporting chrysotile asbestos. Chinese
manufacturers produce 11% of the global market’s total supply of ACM. As a
result, Australian companies must exercise a high level of due diligence, prior
to the purchase of products from China that have the potential to contain ACM,
to ensure that they do not breach provisions. 
The CFMEU argued that the recent incidents exposed the weaknesses in due
diligence systems of the companies' procurement processes.
It suggested looking to other industries for models of due diligence systems,
such as those to prevent the importation of illegally imported timber, noting:
of the importation of illegally logged timber involves a high level legislative
ban and also Regulations which outline the due diligence systems that importers
must have in place.
These systems are
liable to be audited from time to time (by in this instance the Department of
Agriculture) in order to ensure that they are in compliance with requirements
of the Regulations.
Engineered Wood Products Association of Australasia Ltd (EWPAA) also the
identified the successful measures to deter the importation of timber products
derived from illegally logged forests in foreign countries as a potential model
for other products.
The CFMEU noted that updates to the Commonwealth Procurement Rules that
commenced on 1 March 2017 mean that:
applicable Australian Standards and verifying compliance will become a feature
of the Commonwealth procurement system and it makes sense to put some
thresholds in place and for the Government to use its procurement document for
construction work to encourage the use of these thresholds being utilised for
Commonwealth funded projects and within the private sector.
The CFMEU held the view that minimum thresholds for the due diligence
required under the Commonwealth Procurement Rules should be mandatory for both
Commonwealth procurement officers and procurement officers of building code
compliant companies eligible for Commonwealth funding.
It recommended that:
Government, for identified high risk products from high risk countries and
regions, including for products which are at risk of containing asbestos
require procurers to have a stakeholder agreed due diligence system in place for
the prevention of the import and use of nonconforming building products.
Evidence to the committee found that recent incidents of illegal
importation of asbestos in building products have highlighted the weakness in
the due diligence systems of importers and contractors. The committee
recognises that importers, contractors and subcontractors cannot be relied upon
to provide asbestos-free products and that more prescriptive due diligence is
required to ensure asbestos is not inadvertently imported to Australia.
While the committee notes that updates to the Commonwealth Procurement
Rules from 1 March 2017 have increased the minimum thresholds for the due
diligence required under the Rules, it is concerned that the requirements are
not mandatory. The committee considers that for identified products from high
asbestos risk asbestos countries and regions; and for products which are at
risk of containing asbestos, procurers should be required to have a stakeholder
agreed due diligence system in place.
The committee recommends that the Australian Government consider placing
additional mandatory requirements on procurers of high-risk products to have a
due diligence system in place for the prevention of the import and use of asbestos
A model for best practice
The Queensland Building and Construction Legislation (Non-conforming
Building Products—Chain of Responsibility and Other Matters) Amendment Act 2017
(the act) was assented to on 31 August 2017. In its interim report on
aluminium composite cladding, the committee considered that the Queensland
legislation would go some way to ensuring accountability is spread more evenly
across the supply chain from designers to manufacturers, importers, suppliers
and installers and supports the act's intent. The committee also encouraged
other jurisdictions to examine the act and consider developing similar
approaches as a starting point to addressing this serious issue and recommended
that the Building Minister's Forum give further consideration to introducing
nationally consistent measures to increase accountability for participants
across the supply chain.
The ACTU considered that the Queensland legislation provides a model for
a best practice 'chain of responsibility' approach to ensuring products are fit
for purpose. The ACTU recommended that the committee give consideration to
'incorporating aspects of the Queensland [Act] into federal legislation and/or
taking steps to develop a uniform national model bill based on the Queensland
[Act], to be adopted by the states and territories'. The ACTU supported the
legislation as it:
sets out clear statutory objects in respect of the regulation of
establishes a building products advisory committee that gives
Minister, Queensland Building and Construction Commissioner and board advice
about building products, with an emphasis on safety;
requires the Queensland Building and Construction Commission to
give relevant information to the health and safety regulator;
clearly sets out the relationship between the Act and safety
requires a person in the supply chain who becomes aware of, or
reasonably suspects, that a building product is a non-conforming building
product, to notify the Queensland Building and Construction Commission; and
empowers the Queensland Building and Construction Commission to
direct a person to take remedial action in respect of a contravention of the
The committee considers that the Queensland legislation would go some
way to ensuring responsibility and accountability is spread more evenly across
the supply chain from designers to manufacturers, importers, suppliers and
installers. The committee supports the intent of the Queensland Building and
Construction Legislation (Non-conforming Building Products—Chain of
Responsibility and Other Matters) Amendment Act 2017 and believes that it provides
a good starting model for best practice 'chain of responsibility' and should be
adopted by other states and territories.
The committee recommends that other states and territories pass similar
legislation to Queensland's Building and Construction Legislation
(Non-conforming Building Products—Chain of Responsibility and Other Matters)
Amendment Act 2017.
Work health and safety
Removal and remediation of asbestos
A number of submitters raised concerns about the removal of illegally
imported asbestos and flagged the need to update workplace health and safety
legislation. As noted in Chapter 2, all states and territories apart from
Victoria and WA have adopted model workplace health and safety legislation.
Mr Goldsborough from the Queensland Office of Industrial Relations
advised that in response to recent incidents, Queensland's approach was:
businesses to submit a plan and a timeline for the removal of
asbestos-containing materials. While we appreciate removal can be complex in
certain circumstances, we are of the view that short-term methods such as
signage and restricting access to affected worksites are not effective
permanent solutions for managing the installation of asbestos-containing
materials in contemporary buildings...It also has a significant potential to
impact on the health and safety of the community, particularly in light of an
increasing proportion of mesothelioma cases arising from non-occupational
exposure. I suppose my take-home message is that as a regulator we have to be
able to instil confidence in the community that we are able to manage this
Mr Goldsbrough made the observation:
The national model
work health and safety laws which have been adopted in Queensland are silent on
the issue of imported materials as work health and safety regulators relied on
the importation ban and Australian Border Force to prevent the importation of
asbestos. Essentially the work health and safety laws are geared to the in situ
management or removal and so on.
The policy position of SafeWork SA is that asbestos installed post 2003
is illegal and must be removed. It outlined its approach as follows:
There may be
circumstances where, recognising the significant work and downtime cost impact
associated with the removal of these products, as well as safety concerns
associated with the removal, SafeWork SA will consider it appropriate that a
planned, staged approach to removal is implemented. Any staged approach must be
approved by the regulator.
SafeWork SA informed the committee that it had found it difficult to
react to recent incidents of illegally imported asbestos as model work health
and safety legislation 'wasn't really designed to find the imports after the
With regards to the switchrooms containing asbestos which was imported
by Robin Johnson Engineering, SafeWork SA advised that they were 'awaiting the
outcome of the case with SafeWork New South Wales on the ability to have the
asbestos removed from the particular switch rooms that were built'. Mr Chris
McKie, SafeWork SA, understood the trial would be happening over the coming
Robin Johnson Engineering is challenging a SafeWork NSW order to remove
contaminated flooring from a switchroom at the Taralga wind farm. Robin Johnson
Engineering's argument is that removing the contaminated material would create
a greater risk than leaving it in situ.
Worksafe Victoria advised that they had 'worked closely with the
relevant businesses to ensure that the asbestos was removed by agreement,
rather than using legislative enforcement measures'.
Unlike the model health and safety laws that have been adopted in most
jurisdictions Victoria has its own legislation:
237 of the OH&S [Occupational Health and Safety] Regulations 2017, duty
holders must ensure, so far as reasonably practicable, that any risk associated
with the presence of asbestos is eliminated by removing that asbestos. This
obligation applies in relation to asbestos installed before and after the
prohibition in December 2003 where it poses a risk.
Mr Robert Kelly from WorkSafe Victoria advised the committee that where
there has been noncompliance with a prohibition against the manufacture,
supply, storage, transport, sale and use of asbestos contained in Division 4 of
the OH&S Regulations 2017, WorkSafe Victoria can use the enforcement tools
under the Dangerous Goods Act 1985 (Victoria). The new OH&S
Regulations did not commence until 18 June 2017. When Mr Kelly addressed the
committee on 14 July 2017 he advised that WorkSafe Victoria had:
...yet to use the
prohibitions contained in the regulations to compel a duty holder to remove
illegally imported asbestos that had been fixed or installed in the building or
structure. The power to order such removal is yet to be tested. 
Mr Kelly advised that 'WorkSafe is intending to clarify this and to put
it beyond doubt that it can compel such removal'.
He explained further:
That is being
proposed. At the moment, with the Dangerous Goods Act, the use of the word
'use' asbestos—we need to strengthen that, because it can become in situ once
it is installed. So, yes, it is illegally imported but it has been used and it
is now in situ. If it is in situ, the way the legislation is written is that,
as long as it is not disturbed or does not pose a risk, it can stay. We want to
strengthen the legislation so that it says that, if it is illegally imported
asbestos and it is installed, we have the clear power to compel them to remove
The Australian Manufacturing Workers' Union (AMWU) also expressed
concern that the current health and safety laws do not require the removal of
in situ asbestos meaning that 'a company can install in 2016 a substance banned
in 2003, but the health and safety regulators are limited in their regulatory
response'. The AMWU stressed:
It is therefore
essential, that health and safety laws are changed to enable jurisdictions to
require the removal of illegal asbestos product – and the
removal/remediation/safe disposal of the ACMs is to be paid for by the importer
The ACTU considered that measures to require the removal of illegally
imported asbestos would create a significant financial disincentive to
breaching the importation ban. As such, it supported the introduction of new
legal obligations to require:
and/or disposal of illegally imported asbestos (if it is safe to do so
following consideration of the hazards likely to be faced by the workers
undertaking the work) and to make importers responsible for the cost of such
removal and/or disposal of asbestos. If adopted, this measure will create huge
financial disincentive to breaching the importation ban.
While Master Builders' Australia acknowledged building industry
participants throughout the supply chain should play a role in identifying and
eradicating asbestos containing materials, it held the view that 'builders and
building surveyors should not be liable for any cost associated with the use of
a product they have obtained in good faith and with regard to available
information, if that product should not have been made available for use and/or
imported in the first place'.
Master Builders' Australia considered that:
...where a product
containing ACM has entered Australia since 2004, the entity responsible for its
importation should held liable for all the ramifications of its entry, use,
installation, discovery, removal and safe remediation. Once again, given the
cost associated with addressing ACMs, making those importing the product fully
responsible would send the right signal of deterrence and have the secondary
benefit of increasing the level of voluntary compliance and other assessment
mechanisms to ensure products are ACM free. It would be expected that if the
level of financial risk was significant, importer investment in their own
processes would become a more attractive proposition.
Safework SA submitted that the current regulatory frameworks could be
improved with particular reference to establishing responsibility for
remediation of sites where illegally imported products containing asbestos has
Safework SA observed that 'disputation surrounding duty holder
responsibilities along the chain may result in cost impacts for individuals and
may be counter-productive to good health and safety outcomes'.
Of particular concern was the potential for a significant time lag
between installation and discovery of asbestos. Safework SA explained that if
the company involved in the import, supply and/or fabrication of the building
products ceases to exist it could make it extremely difficult to determine who
has responsibility for remedial action.
SafeWork Victoria shared this concern noting that:
By the time the
asbestos may be discovered, enforcement and remedial action may be inadequate
to deal with the scale of the problem. Maximum fines for regulatory breaches
may be significantly less than the cost of removing the asbestos containing
material, which may make duty holders reluctant to comply, particularly if the
asbestos is in situ and not posing any risk.
The committee understands that the removal of asbestos can be expensive,
time consuming and dangerous; and while the aim of Australia's regulatory
framework is to stop asbestos at the border, recent incidents highlight the
reality that asbestos containing materials remain ever-present in Australia.
While the committee acknowledges that all states and territories, apart
from Victoria and WA, have adopted model workplace health and safety
legislation, the committee is concerned that where asbestos containing materials
are discovered, Australia's work health and safety legislation may operate to
result in unfair cost impacts for individuals and be counter-productive to good
health and safety outcomes.
The committee believes that this legislation needs to be strengthened
to specifically provide that where illegally imported asbestos is discovered,
it is mandatory that it be removed and disposed of, providing it is safe to do
so; and that the costs of any such removal and disposal will be borne by the
importer of the illegal asbestos. In addition, the committee considers that in
cases where illegally imported asbestos is not discovered during installation,
mechanisms should be developed to clearly establish who has legal responsibility
for remediation of sites. The committee is particularly concerned about cases
where at the time asbestos is discovered, the companies involved in the illegal
importation of the asbestos, supply or fabrication have ceased to exist.
The committee recommends that Commonwealth, state and territory
governments work together to develop nationally consistent legal obligations to
require the removal and/or disposal of illegally imported asbestos (if it is
safe to do so following consideration of the hazards likely to be faced by the
workers undertaking the work) and to make importers responsible for the cost of
such removal and/or disposal of asbestos.
Role of the Federal Safety
The committee notes the Federal Safety Commissioner's (FSC) powers are
limited to companies that choose to become accredited in order to undertake
Commonwealth-funded work. However, as outlined in the interim report on
aluminium composite cladding, the committee is interested in the capacity of
the FSC to play a role in ensuring compliance with the National Construction
Code of Commonwealth funded construction work.
The functions of the FSC are described in Section 38 of the Building
and Construction Industry (Improving Productivity) Act 2016 and include:
promoting workplace health and safety (WHS) in relation to
auditing compliance with National Construction Code performance
requirements in relation to building materials;
administering the Australian Government building and construction
industry WHS Accreditation Scheme;
promoting the benefits of the WHS Accreditation Scheme; and
disseminating information about the WHS Accreditation Scheme.
The issue of asbestos containing materials in building products is
directly relevant to workplace health and safety in the building and
construction industry and the committee notes that the functions of the FSC
include promoting workplace health and safety in relation to building work.
Therefore, the committee believes there is scope for the FSC to play a greater
role in protecting workers from the risks of asbestos containing materials in
The committee recommends that the Australian Government review and
clarify the role of the Federal Safety Commissioner with regards to asbestos
containing materials in building products in line with the Commissioner's
Recall powers of consumer products containing asbestos
Where a safety problem in a consumer good is identified, government
regulators, including the ACCC may determine that the product is unsafe and needs
to be recalled. In this regard, the ACCC manages the public recalls.gov.au
website which provides a list of various consumer goods subject to safety
A number of submitters gave evidence to the committee calling for the
ACCC to use its powers for mandatory recalls in cases of illegally imported
asbestos. However, it is important to note that the ACCC does not have
jurisdiction in respect of non-consumer goods under the product safety regime.
Mr Neville Matthew from the ACCC explained the agency's powers:
Under the Consumer
Law, a mandatory recall, which is a regulator initiated or minister initiated
recall, is triggered when the minister is not satisfied that adequate steps
have been taken in relation to a voluntary recall. Generally, there would be a
voluntary recall first—and that's why we have a recall-monitoring team—but if
that fails to adequately deal with the safety risk then we can recommend to the
minister that he issue a compulsory recall.
Ms Renata Musolino from Asbestoswise did not believe that 'the ACCC is
consistent in how it responds when asbestos is found in products'. Ms Musolino
noted the example in 2012 of Great Wall and Chery vehicles, and Polaris
quadbikes more recently, in which gaskets in the vehicles were found to contain
asbestos. She noted:
There was no
recall and we complained about that. The advice from the ACCC was to all people
who may do services at that time to make sure that they replace the gaskets
with non-asbestos containing [gaskets]. But these are work vehicles and
vehicles out on farms. They may not get serviced for years and they may not get
serviced by mechanics—they may be done at home. With the Polaris vehicles,
there was also not a complete recall. They were banned for sale and they had to
have them replaced when replaced—but 'safe to use in the meantime'. So a body
like the ACCC needs to be far tougher and far more consistent—a good example of
making it not worth their while to break the law.
In relation to Great Wall and Chery vehicles, the AMWU raised the risk
to DIY maintenance workers and mechanics in the service and repair who did not
receive the notice in 2012 will be potentially unnecessarily exposed. The AMWU
The ACCC needs to
have a broader range of sanctions available and must more effectively use its
powers to issue compulsory recalls. Additionally ACCC must be required to publish
a statement of reasons relating to any decision not to compulsorily recall
asbestos containing products.
The ACTU argued that the ACCC should make greater use of its powers to
compulsorily recall products which contain asbestos in order to limit the
exposure of members of the Australian community to asbestos containing
In addition, the ACTU argued that there should be greater transparency
surrounding the reasons behind ACCC decisions to conduct mandatory recalls:
where the Australian Consumer and Competition Commission [ACCC] becomes aware
of a product containing asbestos and subsequently determines not to issue a
compulsory recall of that product, the ACCC shall within thirty days of that
decision publish a statement of reasons.
In order to limit exposure of Australians to asbestos, the committee
believes that the ACCC should make greater use of its compulsory recall powers
in relation to products containing illegally imported asbestos and adopt a
consistent approach when asbestos is found in products.
The committee is concerned that evidence to the inquiry indicated that
where the ACCC does not recall a product containing illegally imported
asbestos, information about such a decision is not made publicly available. The
committee believes that where the ACCC makes a decision not to recall a product
containing asbestos, both the public and industry would benefit from such
knowledge. Indeed, the committee considers that where the ACCC makes a decision
not to conduct a compulsory recall of a product that contains asbestos, it
should publish its reasons so that the process is more transparent.
The committee acknowledges concerns raised by stakeholders about the
potential impacts of product safety recalls on the public and industry, and is
of the view that consideration should be given to introducing mandatory recall
insurance to reduce the economic impact of such recalls.
The committee recommends that the Australian Competition and Consumer
Commission conducts compulsory recalls where asbestos is found in consumer
products, unless there are significant issues and risks associated with a compulsory
recall, noting that legislative change may be required.
In circumstances where the Australian Competition and Consumer
Commission becomes aware of a product containing asbestos and subsequently
determines not to issue a compulsory recall of that product, the committee
recommends that the Australian Competition and Consumer Commission shall within
thirty days of that decision publish a statement of reasons.
The committee recommends that the Australian Government review the
Australian Competition and Consumer Commission's public reporting of asbestos
containing materials in consumer products, both in relation to informing the
public where there are risks to safety, and also monitoring and aggregating
reporting of incidents over time.
National public asbestos register
A number of submitters supported the development of a national public
asbestos register which lists products found to contain asbestos, suppliers and
buildings where asbestos is located.
The Australian Institute of Building Surveyors submitted that while more
needs to be done to minimise the impact of product safety recalls on the public
and industry, it also suggests that the Government consider introducing the
following regulatory amendments which in strengthening the safety recall will
seek to introduce registration and tracking of high risk products like
- Product tracking where manufactures, importers and suppliers of all high
risk products, (such as electrical), are required to have processes and
procedures in place to enable the tracking and tracing of product found to be
faulty and/or not compliant to Australian Standards.
Register of high risk products where sellers of high risk products are
required to maintain a register of products sold. For example, a register of
electrical products that require installation by an electrician [installation
by a licenced tradesperson]
Mandatory recall insurance where manufacturers, importers and suppliers
of high risk products are required to have a process in place to fund the
removal and replacement of any product found to be faulty and/or not compliant
to Australian Standards.
The CFMEU also proposes establishing a register recording importers and
suppliers of non-conforming building products. The CFMEU went further, suggesting
that 'those listed on the register be banned from further supply and
importation into Australia'.
While Asbestoswise suggested that the development and maintenance of a public
register could serve as a further deterrent to the illegal importation of asbestos.
Maurice Blackburn Lawyers provided a detailed proposal for a national
Maintenance of a
public register of imported non-conforming building products containing
asbestos and suppliers. A national public register should be kept which details
imported building products which have been found to contain asbestos, as well
as identifying who the supplier of the products was, and any buildings where
the products may now be located (if the product has already been used in
should be able to be updated by relevant Commonwealth, State and Territory
Governments and Agencies, as well as allow for private persons and companies to
make submissions to add information to the register. The register should be
accessible to the public and user friendly. 
Maurice Blackburn Lawyers considered that such a register would serve
the following purposes:
Assist prospective importers by identifying building products
which are known to contain asbestos;
Assist prospective importers by identifying suppliers who are
known to have supplied asbestos-containing materials in the past;
Act as a deterrence to overseas suppliers by “naming and shaming”
offenders who supply asbestos-containing materials; and
Assist relevant members of the public in identifying buildings
known to contain asbestos materials, such as tradespersons who may be
contracted to perform work on the buildings (thereby putting themselves at risk
of exposure to asbestos).
Maurice Blackburn Lawyers noted that such a register could be extended
to include other imported non-conforming building materials which may pose a
public health hazard and did not need to be limited to asbestos-containing
The committee notes that a number of submitters to the inquiry supported
the development of a national public asbestos register which lists products
found to contain asbestos, suppliers, and buildings where asbestos is located.
As stated previously, the committee is focussed on ensuring Australia takes all
steps necessary to reduce the risk of illegal importation of asbestos and
thereby reduce the related disease risk. The committee believes that developing
a national public asbestos register which lists products found to contain
asbestos, suppliers and buildings where asbestos is located, may assist in
reducing this risk by raising public and industry awareness.
The committee recommends that the Australian Government establish a
national public asbestos register.
The committee recommends that the Australian Government consider the
merits of requiring importers and suppliers to hold mandatory recall insurance
for potential asbestos containing materials.
Ships imported to Australia which contain asbestos
Among the range of products that the committee heard had been illegally
imported to Australia, were ships. Mr Martin Byrne from the Australian
Institute of Marine and Power Engineers explained:
The essence of our
concerns relates not to the importation of asbestos materials as cargo in ships
but, rather, to the occurrence of asbestos-containing materials in situ, in
ships, in various locations, including in gaskets, flanges, insulation shields,
lagging, gland packing and winch breaks. They're some of the major locations
where we have experienced asbestos-containing materials being discovered.
Mr Paul Garrett from the Maritime Union of Australia advised the
committee that the number of ships imported to Australia which contain asbestos
'has got to a point now where the workers make the joke that there has been
that much asbestos brought in that the company should be charged for
smuggling'. He elaborated the number and types of ships which had been
One company that
we deal with in harbour towage—and you've got to take into account that the
asbestos ban came in on 31 December 2003—has imported 16 separate tugs since
2007 to replace their fleet under the general tonnage replacement plan. There
have been more than 16 tugs, but the 16 tugs that have been imported from
overseas have been built predominately in China or Vietnam and have had
asbestos-containing material in their gaskets.
Mr Garrett noted further that:
You have to expect
that every vessel that comes in these days contains asbestos because it's been
built in Chinese yards to Chinese standards, which allow asbestos. In the
absence of the Australian shipbuilding industry, this has become the norm.
Mr Byrne expressed concern regarding the Coastal Trading (Revitalising Australian
Shipping) Amendment Bill 2017, which was introduced in Parliament on 13
September 2017. Mr Byrne expressed concern that the bill may increase the risk
of Australian workers being exposed to asbestos. Of particular concern was the proposal
in the legislation to:
foreign-flagged vessels seeking dry docking facilities in Australia from
importation. The motivation is well-founded, in that they are seeking to
facilitate dry-docking works being done in Australian dry docks. So they are
trying to boost business for Australian dry-docking facilities. However, by
providing the exemption from importation they therefore circumvent the asbestos
prohibition in the import regulations and, at the same time... because they are
foreign-flagged vessels they are not subject to Australian OH&S
The committee is deeply concerned by the reported prevalence of new
ships being imported into Australia containing asbestos. The committee notes
that the Rural and Regional Affairs and Transport Legislation Committee is
currently examining the Coastal Trading (Revitalising Australian Shipping)
Amendment Bill 2017 (the bill) and is due to report on 4 December 2017. The
committee draws to the attention of the Rural and Regional Affairs and Transport
Legislation Committee the concerns raised during this inquiry that the bill may
increase the risk of Australian workers being exposed to asbestos.
Next steps for the inquiry
Many of the concerns raised with the committee in relation to the
illegal importation of asbestos and flammable aluminium composite cladding, the
subject of the committee's previous interim report, have highlighted broader
issues which apply equally to other types of non-conforming building products
which have been drawn to the committee's attention.
The committee acknowledges the ongoing work of the Building Ministers'
Forum and notes the release of its Senior Officers' Group's Implementation
plan: Strategies to address risks related to non-conforming building products
on 21 September 2017. The committee will continue to monitor the progress
of the Building Ministers' Forum, and also its ongoing work on the issues of
non-conforming and non-complaint building products. As the next step for the
inquiry the committee will seek feedback from key stakeholders on the progress
of Commonwealth, state and territory governments in addressing the serious
issue of non-conforming building products. The committee will present its final
report for the broader inquiry by 30 April 2018.
Senator Chris Ketter
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