Express law No. 68

15 February 2008

New asbestos laws for non-residential premises in the
ACT

This Express law outlines how amendments to the Dangerous
Substances (General) Regulation 2004 (ACT) may affect
the Commonwealth as an owner or tenant of non-residential
premises in the Australian Capital Territory.

Background

Amendments to the Australian Capital Territory's
Dangerous Substances (General) Regulation 2004 (the Regulations)
made by the Dangerous
Substances (General) Amendment Regulation 2007 (No 1)
,
which commenced on 7 September 2007, require 'a person
in control of non-residential premises' to comply with
a series of asbestos management requirements.

The Regulations apply to all non-residential premises
built (i.e. for which a certificate of occupancy under
the Building Act 2004 has been issued for part or
all of the premises) prior to 31 December 2003. Buildings
completed after that date are exempt.

The date for compliance with the Regulations varies depending
on the type of premises. Compliance dates are:

  • for multi-storey commercial premises: 1 September
    2008
  • for single-storey commercial premises: 1 September
    2009
  • for industrial premises: 1 March 2010
  • for community or recreational premises: 1 September
    2010.

The Commonwealth is not bound by the Regulations. (To
be binding on the Commonwealth, the Act under which the
Regulations are made must amongst other matters be specified
in the schedule to the Australian Capital Territory (Self-Government)
Regulations 1989 (s 27 of the Australian Capital Territory
(Self-Government) Act 1988). The Dangerous Substances
Act 2004 (ACT) is not listed in these regulations.
The position of bodies that have a separate legal identity
from the Commonwealth, such as those regulated by the Commonwealth
Authorities and Companies Act 1997, will depend on
the nature of the body.) Notwithstanding this, Commonwealth
agencies should be aware of the various requirements under
the Regulations.

Asbestos management obligations under the Regulations

'A person in control of non-residential premises' (discussed
below) must comply with the following asbestos management
obligations.

Identifying asbestos products and risk assessment

A person in control must ensure the premises are inspected
by a licensed asbestos assessor. The assessor is to provide
an inspection report detailing, amongst other things, the
location, type and condition of any asbestos product found
at the premises (s 330 of the Regulations).

Where an asbestos product is identified in the report,
the assessor is to make a written risk assessment, the
details of which must be included in the asbestos management
plan and asbestos register for the premises (s 333 of the
Regulations). A person in control must ensure the risk
assessment is reviewed in certain circumstances, such as
where it is no longer adequate or there is a significant
change proposed for the premises (s 334 of the Regulations).

It is important to note that only a licensed asbestos
assessor can prepare the identification and risk assessment
report. That report can then be used to prepare a written
asbestos management plan, which must include an asbestos
register to help inform relevant people of any asbestos
in the building.

Preparing an asbestos management plan and register

A person in control must have a comprehensive asbestos
management plan for the premises which is to provide for,
amongst other things, an asbestos register and a timetable
for managing risks and procedures for review. It must also
provide information about the location of, type of, and
risks posed by, the product, as well as details of warning
signs, safe work methods, and arrangements for dealing
with accidents (s 325 of the Regulations). The asbestos
management plan must be reviewed in certain specified circumstances
as well as every five years (s 326 of the Regulations).

Who is responsible for asbestos management?

The person responsible for complying with the Regulations
is 'a person in control of the premises'.

The Dangerous Substances Act (at s 17(1)(b) defines 'a
person in control' of a premises as:

… anyone who has control of the premises (including
anyone with authority to make decisions about the management
of the premises) …

The ACT Government has issued fact sheets which state
that a number of people could be classified as a person
in control of any one building, including the owner, occupier
and/or property manager. Section 17(2) of the Act confirms
that more than one person may be a person in control for
a duty under the Act.

While two or more people may have the same obligation
under the Regulations, each person in control is required
to comply with that obligation. To avoid duplication, however,
the Act specifies that, where something is required to
be done under the Act, it is sufficient if one of the persons
in control does that thing. Based on the example at s 21(3)
of the Act, if two people are in control of premises where
an asbestos management plan is required, it is sufficient
if one of them prepares the management plan. If the plan
is not prepared, however, each person who could be classified
as a person in control will be responsible for the failure
to comply with the requirement.

What action should agencies consider?

Audit of ACT properties

Commonwealth agencies may consider it appropriate to conduct
an audit of their property portfolio in the ACT to determine:

  • which properties are owned and which are leased
  • whether the building was built prior to 31 December
    2003
  • whether negotiations are currently under way for future
    leases
  • whether it would be appropriate to seek any assurance
    from any other party that they are complying with the
    Regulations and whether the Commonwealth itself wishes
    to comply with the Regulations (as a matter of policy/practice
    rather than legal obligation)
  • who is best placed in the circumstances to comply
    with the Regulations.

Properties leased by the Commonwealth in the ACT: existing
leases

Where there is an existing lease, a Commonwealth lessee
may wish to request written confirmation from the owner
that they will comply with the Regulations (or that the
building is exempt).

Properties leased by the Commonwealth in the ACT: new
leases

Where the Commonwealth is leasing one of the types of
premises listed above (see 'Background'), it may wish to
include a warranty from the landlord that it has prepared,
or will prepare, an asbestos management plan and asbestos
register for the building in accordance with the Regulations.
The Commonwealth may also consider the inclusion of an
indemnity clause whereby the owner indemnifies the Commonwealth
for any loss incurred by the Commonwealth as a result of
the owner's failure to comply with the Regulations. In
some cases it may also be necessary for the lease to address
the impact of the implementation of the asbestos management
plan on the use and occupation of the premises by the Commonwealth
tenant.

Properties owned by the Commonwealth in the ACT

If the building falls into any one of the types of premises
listed above (see 'Background') the Commonwealth, as owner,
may wish to consider adopting any of the requirements of
the Regulations as a matter of policy (as opposed to legal
obligation): for example, having an assessor prepare a
report and then preparing an asbestos management plan and/or
an asbestos register.

Using a licensed asbestos assessor

Where an agency requires an asbestos assessment service
other than for the purposes of the Regulations, it will
need to determine whether or not to require the assessor
to be licensed in accordance with the provisions of the
ACT Construction Occupations (Licensing) Act 2004.

For further information please contact:

Kym Lockley
Senior Executive Lawyer
T 02 6253 7461 F 02 6253 7316
kym.lockley@ags.gov.au

Tanya Berkeley
Lawyer
T 02 6253 7544 F 02 6253 7316
tanya.berkeley@ags.gov.au

Important: The material in Express law is
provided to clients as an early, interim view for general
information only, and further analysis on the matter
may be prepared by AGS. The material should not be
relied upon for the purpose of a particular matter.
Please contact AGS before any action or decision is
taken on the basis of any of the material in this message.