Posted on May 22, 2013 by

Model Asbestos Policy for NSW Councils issued as s23A guideline

In November 2012, the Division of Local Government announced the release of the Model Asbestos Policy for NSW Councils (Policy).  The Policy was the product of a recommendation of the NSW Ombudsman’s report Responding to the asbestos problem: The need for significant change in NSW, November 2010 (Ombudsman’s Report).

Circular 13-23 issued by the Division of Local Government on 14 May 2013 now elevates the Policy from a useful tool for Councils in preparing their own asbestos policy to the status of a Guideline under section 23A of the Local Government Act 1993.

Its status of a Guideline means that the comprehensive Policy must now be considered by Councils when exercising functions under the Local Government Act 1993. Councils should review the impact that these Guidelines have on their operations.

Background: the need for action

Since the Special Commission of Inquiry into the Medical Research and Compensation Foundation (Jackson Inquiry) in 2004, there has been heightened awareness of the dangers of asbestos exposure. The Jackson Inquiry investigated the attempt by James Hardie Industries to move its operations off-shore, leaving its asbestos victims’ compensation fund woefully underfunded.

There may be a perception that the incidence of asbestos disease is declining.  Victims protesting the Hardie case were chiefly Hardie workers and their families.  However, as the Ombudsman’s Report  states, there is another wave of cases on the way which will dwarf the number of road fatalities nationally.  By 2020, it is expected there will be 13,000 cases of mesothelioma and 40,000 asbestos related cancers (source: Ombudsman’s Report p 1).  The next wave will be home renovators, tradespeople and innocent bystanders living and working in asbestos impacted buildings.

The Ombudsman’s Report estimates that even though asbestos was banned in Australia in 2003, one in three homes in Australia already had asbestos in them.  In its bonded matrix form, it poses no threat.  When it is damaged or weathers and releases airborne particles (referred to as friable asbestos), it becomes a potentially lethal substance.

Exposure can result in asbestosis, a form of disease scarring lung tissue and inhibiting the ability of the lungs to transfer oxygen to the blood; and mesothelioma, a cancer of the outer lung.  Mesothelioma has a gestation period of 35 to 40 years.  Survival after one year from diagnosis is only 40%.  There is no safe exposure level.

The Ombudsman’s Report

Following three independent inquiries between 2007 and 2010, the NSW Ombudsman decided to investigate the regulation, legislation and co-ordination of the response to the issue of asbestos exposure.  The Ombudsman’s Report found that there was no single government agency responsible for co-ordinating the management and containment of asbestos; no State wide government plan for dealing with asbestos; and gaps in relevant legislation.

Holroyd Council was highlighted as an example of a Council which has an excellent policy, practice and procedure as well as a proactive public awareness role.  Holroyd has provided input to the Asbestos Coordinators Working Group as an invited party.

However, the Ombudsman’s Report found that some Councils had policies that were out of date or misleading or non-existent.  Given that the next wave of asbestos related diseases will come from renovations, demolition of existing structures and working with existing buildings, Councils will be at the forefront of future preventative measures.

Accordingly, recommendation 7 within the Ombudsman’s Report calls for a Guideline to be issued under s23A of the Local Government Act 1993 for a model asbestos policy to counter ‘an unacceptable level of non compliance, confusion and misunderstanding about asbestos within councils in NSW.  The Division of Local Government has a responsibility to provide consistent guidelines to councils for dealing with asbestos.‘

The Policy

The Policy itself is a comprehensive document which gives a thorough picture of existing legislation and regulation. In its 19 chapters it covers education; identifying asbestos; reporting and recording asbestos; contamination of land and buildings; assessing the presence of asbestos for development assessment; separating asbestos from other waste; removal of asbestos; transportation and risks associated with removal.

Prepared by the Heads of Asbestos Coordination Authorities (HACA) the Policy usefully summarises all relevant legislation and regulation.  It also identifies the various authorities, such as WorkCover and the EPA with responsibilities in relation to  asbestos regulation.  State and Federal legislation is cited, giving readers direct access not only to the law but also to policy guidelines and recognised standards for asbestos removal, storage and handling.

In short, research at a very high level has produced this comprehensive document which all NSW Councils now have access to.  Anyone in the building industry could usefully employ this Policy in their library to answer most questions on dealing with asbestos.

Adequacy of the response

While the Policy is laudable, there are a number of questions which remain.

The Policy was only one recommendation made by the Ombudsman to address the next wave of asbestos related diseases.  The development of an asbestos plan for the State is still not in evidence; amendment to vendor disclosure legislation requiring that home owners identify the presence of asbestos to purchasers has not been implemented.

The Ombudsman also identified the need to adequately fund the identification and removal of asbestos.  There is a danger that in preparing such a comprehensive Policy for individual Councils, the NSW Government has engaged in a form of cost shifting by stealth.  It seems appropriate that Councils have a leading role in asbestos identification and removal given their role in building and development regulation.  However, to emphasise this role without an injection of funds to allow Councils to properly address the problem may be to move the burden to Councils which are already hard pressed to meet the financial demands of their current roles.

Recommendation 4 of the Ombudsman’s Report called for the allocation of funding to the issue.  Having identified the salient role played by Councils, and having mandated the Policy as a Guideline which must be taken into account when a Council performs its functions under s 23A, the NSW Government should give local government the financial ability to carry out the work that the Policy requires.

The significance of s23A Guidelines

Section 23A(3)  of the Local Government Act states ‘A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions’.

This does not mean that the Council must slavishly follow the Guidelines: see Sharples v Minster for Local Government [2008] NSWLEC 328 at paragraph 78 per Biscoe J: Compliance by Councils with the Guidelines is not mandated by the Act.

Conclusion

The Policy is wide ranging and comprehensive and gives advice on a number of areas of Council’s functions, ranging from internal workplace arrangements, through to development consent, administration of Council’s waste facilities and public education about the dangers of asbestos.

The Policy is a Guideline under s23A of the Local Government Act 1993 and as such Councils should review it thoroughly to consider how it will impact on their functions.