Amendments enabling regulators to issue prohibited asbestos notices in force

• Changes to WHS laws now in force give regulators controversial new powers.
• Prohibited asbestos now subject of removal notices under model WHS laws.

Changes to the Model WHS laws have come into effect that now provide WHS Regulators with a new power that allows them to issue a “prohibited asbestos” notice in circumstances where an inspector may not otherwise be able to issue an improvement or prohibition notice.

The model WHS Act has been amended to make it mandatory for regulators to issue notices when they believe prohibited asbestos is present at a workplace, with maximum fines of $500,000 for those that fail to comply with a notice.

According to an explanatory memorandum “prohibited asbestos” means asbestos or asbestos containing material fixed or installed in a workplace on or after 31 December 2003, with the notice to be issued to a ‘relevant person in relation to a workplace’.  This definition provides discretion for the regulator to determine who the ‘relevant person’ is when issuing the notice, taking into account that there may be various persons with responsibility for asbestos at the workplace because of different workplace arrangements and the complexity of modern supply chains.

As with existing provisions on prohibition notices, regulators will also have the power to take “any remedial action” they believe “reasonable to make the workplace or situation safe” if: the person who receives the prohibited asbestos notice fails to take reasonable steps to comply with it; or the notice can’t be issued because the person in control of the workplace or another relevant person can’t be found.

The new WHS amendments state that a regulator “may be able to form the necessary belief for issuing a prohibited asbestos notice even where the regulator does not know the precise location of prohibited asbestos at the particular workplace”.

Master Builders has long advocated that the amendments were significant enough in nature that they should be the subject of a Consultation Regulation Impact Statement, a view regrettably not shared by SWA members. We continue to hold the view that the consultative process was unsatisfactory and contrary to the statutory rules which govern the process for regulatory amendments.

It is important to note that the changes to the model WHS Act and Code of Practice won’t apply in the harmonised jurisdictions until those jurisdictions enact them, however, once enacted at the State/Territory level, we will be closely monitoring their application.

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