Since 2003, Australia has maintained a complete ban on the importation, manufacturing or use of any products which contain asbestos, exposure to which can cause mesothelioma, cancer and asbestosis (fibrosis of the lungs).
In recent years, however, the material has been found imports of building products, children’s crayons, gaskets, brake pads, prefabricated structural building materials, component parts of a vessel and protective steel brackets. Goods containing asbestos have been found coming in from China, Germany, Indonesia, Italy, Japan, New Zealand, Singapore, South Africa, Taiwan, The Netherlands, the UK, the US and Vietnam.
In November last year, the Senate Inquiry into Non-Conforming Building Products made 26 recommendations to help curb this trend and stop asbestos coming in.
The federal government response released on August 22, however, is inadequate.
All up, the government has supported only seven of the 26 recommendations. Thirteen of the remaining ones have been ‘noted’ whilst six have been rejected outright.
Given the consequences of asbestos imports, this is woeful.
In its response, the government has supported recommendations to:
- Adequately fund the Asbestos Safety and Eradication Agency (ASEA) to enable it to deliver its next strategic plan and to carry out its functions
- Continue to advocate for the listing of chrysotile asbestos in Amex III of the Rotterdam Convention
- Continue to support asbestos bans internationally and promote awareness of asbestos risk throughout the Asia-Pacific
- 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 (supported in part only)
- Have the ASEA develop a one-stop-shop web site to provide a single point of reference for supply chain participants to access information about the asbestos import ban
- Examine regulations and processes for testing of products for asbestos prior to import which are in place in the European Union to see if these could be adopted in Australia
- Have the Commonwealth, state and territory governments work together to develop nationally consistent legal obligations to require the removal and/or disposal of illegally imported asbestos (where this can be done safely) at the expense of importers (supported in part only).
There are positives in this list. A near doubling of funding for the ASEA from $1.7 million in 2017/18 to $3.3 billion in 2018/19 will help the regulator to implement Australia’s next strategic plan for asbestos management and carry out its other functions in a manner which has greater impact and effect.
However, many of the other items on this list involve things which are already being done. Australia is already lobbying for asbestos bans internationally and advocating for the listing of chrysotile asbestos in the Rotterdam Convention. Asbestos worker training is already required in the model work health and safety laws which have been adopted across most states. ASEA has already updated its web site to deliver a significant volume of information about asbestos with links to relevant agencies such as the Department of Home Affairs for more detailed advice.
In short, this is hardly a bold response.
Moreover, the response is lacking in several areas.
Most crucially, the government has rejected a recommendation which would have required those who import products into Australia which are considered to be at high risk of containing asbestos to have sampling and testing performed by a testing authority which is accredited by either the National Association of Testing Authorities (NATA) or an equivalent body in another country which is a signatory to a mutual recognition agreement with Australia.
In its response, the government said mandatory testing is both costly for importers and not always effective. Besides, it argues, the Australian Border Force already requires importers to have adequate assurance measures in place to demonstrate that their goods are asbestos free (these can include testing, but are not exclusive to testing). If Border Force is not satisfied with the importer’s level of assurance, they can direct the importer to have the goods tested by a NATA approved testing body.
This is hardly enough. As noted by Andrew Mantle, chief executive officer of Asbestos Audits & Environmental Audits Pty Ltd, in his testimony to the Senate Committee, the absence of goods needing to be tested by a NATA accredited body has paved the way for reliance upon ‘self-declarations’ from Chinese companies about their products being asbestos free or certificates about products being asbestos free from testing authorities in China.
This is problematic. China is renowned for false declarations and false certificates. Furthermore, in Chinese law, ‘asbestos free’ simply means having a product comprise of six per cent of asbestos or less. Thus, a Chinese manufacturer or testing laboratory may genuinely declare a product to be asbestos free by standards required under Chinese law even where that product does indeed contain some asbestos.
Others agree. In its testimony before the Senate Inquiry, the Housing Industry Association noted that false or incorrect declarations about products being asbestos free were evident in a number of the recent cases involving asbestos discovery in commercial construction.
Nor can screening at the border be relied upon. Unlike substances such as narcotics, there are no rapid screening tests or instruments which can be applied at the border to give immediate results when it comes to asbestos. As noted by HIA in its testimony to the inquiry, any asbestos which is discovered within a building product is likely to be contained within that product. Thus the only way it can be found is through destructive testing. Unless a problem has already been identified, this type of testing is unlikely to occur.
Besides, given the sheer volume of containers coming through, expecting Border Force to inspect these at the border is not feasible. In 2016/17, Australian Border Force processes 41.9 million air cargo consignments and 3.2 million sea cargo reports. With this, Mantle says, expecting them to check even one per cent for asbestos is not realistic. Nor is it realistic to expect customs officials to understand what constitutes correct documentation, let alone spot fraudulent documents.
Given all this, the only way to stop asbestos coming in is for high-risk products to be tested before they arrive in a NATA accredited testing body. Yes, this will cost importers, but it is a basic quality control measure which as been amply demonstrated to be necessary.
Beyond mandatory testing, there are other areas where the government’s response falls short.
One is product recalls. On this score, the government was right to reject a recommendation that the Australian Competition and Consumer Commission (ACCC) conducts mandatory recalls (or, more correctly, that the ACCC recommends to the minister that a compulsory recall be conducted) where asbestos is found in consumer products. Clearly, a mandatory recall would not be necessary in some circumstances. One example is where the supplier themselves has issued a voluntary recall.
However, the government is wrong to reject a recommendation that the ACCC be required to publish reasons for not recommending a recall. Were there not to be a mandatory recall, the government says a voluntary recall or other risk management strategy would be in place – as might a safety warning. These interventions, it argued, would render any statement of reasons for not recommending a compulsory recall superfluous.
This view is flawed. Whilst there may be circumstances where a mandatory recall is not necessary, there must be transparency in the decision making progress. This need not be onerous. In cases where mandatory recalls are not recommended because a voluntary recall or some other action to address risk is underway, then this can simply be stated within the statement of reasons. Given the seriousness of asbestos, however, there must be transparency about why decisions in respect of compulsory recalls are or are not made.
There are also areas where the government response of ‘noted’ is weak.
One example is the recommendation that the government review the quantum of penalties for breaches of Australia’s bans on importing asbestos containing materials. In its response, the government argues that the imposition of penalties following conviction (beyond the setting of maximum fines) is a matter for the courts.
Yet evidence shows there is room for improvement here. Whilst courts can hit companies up for the greater of $1.050 million or fifteen times the value of the goods imported, the most which Australian Border Force can levy as a fine in lieu of prosecution is a mere $15,750. When Chines building materials firm Yuanda was issued with three infringements notices for breaches off the asbestos importation ban as it supplied materials laced with asbestos to the Perth Children’s Hospital project and the 1 William Street project, it was levied with fines of this amount. For a company with assets of more than $1 billion, this is a paltry sum and is nowhere near the kind of deterrent needed to prevent this behaviour.
Australia needs strong action to stop asbestos imports.
The federal government’s response does not cut it.