Legislative Assembly for the ACT: 2005 Week 02 Hansard (Thursday, 17 February 2005 2005) . . Page.. 572 ..
wording of 47J(1) with the words “ought reasonably to know” has raised concerns that the obligation of an owner or occupier of premises could be construed as going beyond the provision of the information based on actual or current knowledge and thus require the person to discover information that they ought reasonably to know.
The bill before the Assembly removes the expression “ought reasonably to know” so that it clearly refers to information which 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 a person 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 also about required information which is defined as up-to-date information about the location and condition of asbestos. This 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” that is currently in the section 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 of up-to-date information about the location and condition of asbestos is not taken to imply a requirement to obtain current information in section 47J. It is appropriate for the existing definition to continue to apply to the conduct of an investigation under section 47K and to the provision of a report under 47L.
To remove any doubt, the bill adds a new subsection to 47J that expressly states that the owner or occupier is not required to find out whether there is asbestos at a property in order to satisfy the duty of care contained in the section. It has also been suggested that the scope in 47J(2) of the class of persons to whom a duty of care is owed is unclear. In relation to tenants, in particular, unnecessary alarm has been expressed that the term might extend as far as hotel and motel guests and that owners of these businesses would need to provide written information to each short-term occupant. So, to put the matter beyond doubt, 47J is amended to define a tenant as a tenant under the Residential Tenancies Act and the Leases (Commercial and Retail) Act or as otherwise prescribed in regulations. In both the Residential Tenancies Act and the leases act, definitions of “tenant” capture persons who are likely to be a tenant, and a note to this effect is added to 47J.
The expression “person at risk” has been replaced by the expression “relevant person”. The term “relevant person” more correctly describes the category of persons to whom a duty to disclose known information is owed. By way of example, a purchaser of a property needs to know this information not necessarily because they are at risk but because they are assuming responsibility for the property and may have duties to others in relation to the risk of asbestos.
Finally, the bill amends the commencement provision of the act to allow 47J to commence on 4 April 2005. The proposed amendment follows a recommendation of the Asbestos (Assessment) Task Force. A public information program is planned by the task force and the additional time created before section 47J commences will ensure that