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Legislative Assembly for the ACT: 2005 Week 02 Hansard (Tuesday, 15 February 2005 2005) . . Page.. 421 ..


premises in order to comply with the new provision. This is a concern that the Assembly, in August 2004, was at pains to avoid. In the course of debate on 25 August 2004, I said:

This duty will be imposed only upon persons who have actual knowledge of the existence of asbestos, or who ought reasonably to know about the presence of asbestos, but no requirement to discover whether asbestos exists will be imposed. Owners and persons in control of buildings will have a duty to undertake an asbestos inspection only when the building is in a high-risk category and the building owner is undertaking a high-risk activity under proposed section 47K. What will constitute a high-risk activity will be determined by the proposed study and included in regulations, although we can assume that the likely disturbance of asbestos would lead to an activity being classed as high risk.

For those reasons it was determined that section 47K of the act, which imposes an obligation to investigate the presence of asbestos when high-risk activities are to be undertaken, and section 47L, which imposes an obligation to furnish a report for properties listed for sale, will not commence operation until 16 January 2006. Section 47J, however, is due to commence operation on 1 March in advance of the remaining provisions of the act. That is because it was appropriate to move promptly to ensure people impart actual knowledge about asbestos to those at risk of suffering its effects.

The government established the Asbestos Assessment Task Force to undertake an analysis of asbestos in the ACT and report later this year. I expect that a significant component of that analysis will involve discussion of the operation of section 47J. There will be ample opportunity to discuss the performance of this new legislation after the task force reports. In the meantime it is essential to the successful implementation of the information requirement in the act that the scope of the operation of the new provisions be made clear. The concerns are best summarised and dealt with as follows.

The words “ought reasonably to know”, in section 47J(1), have raised the concern that the obligation of an owner or occupier of premises goes beyond giving to a person information based on actual, or current, knowledge, requiring the person to discover information that may be considered to be information he or she ought reasonably to know. This bill removes the expression “ought reasonably to know” from section 47J so that it clearly requires information to be given only about what the owner or occupier actually knows about the premises, without the need for further investigation.

The effect of the amendment is that section 47J of the act will now clearly require only that persons must give whatever information they have about asbestos at their premises. After the commencement of sections 47K and 47L information obtained for the purposes of those provisions will also need to be given to relevant persons. There is concern about the obligation to provide required information, which is defined as including up-to-date information about both the location and the condition of asbestos. That may not be something the average owner or occupier could furnish with confidence. It was not the intention of the government to require people to obtain the services of an expert in respect of this duty.

The bill replaces the reference to “required information” with a reference to “what the owner or occupier knows”. The definition of “required information” is relocated to section 47K to ensure that the reference to up-to-date information about the location and condition of asbestos is not taken to imply a requirement to obtain current information in


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