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Asbestos Safety and Eradication Agency Bill 2013



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ISSN 1328-8091

BILLS DIGEST NO. 105, 2012-13 9 May 2013

Asbestos Safety and Eradication Agency Bill 2013

Ian McCluskey and Tyler Fox Law and Bills Digest Section

Contents

Purpose of the Bill ................................................................................................................................... 3

Structure of the Bill ................................................................................................................................. 3

Background ............................................................................................................................................. 3

What is asbestos? ................................................................................................................................... 3

National Strategic Plan ............................................................................................................................ 4

History and Context ............................................................................................................................. 4

State and territory asbestos reports ............................................................................................... 4

First Asbestos Summit ..................................................................................................................... 5

Asbestos Management Review ........................................................................................................... 5

Recommendations ........................................................................................................................... 5

Second National Asbestos Summit .................................................................................................. 6

The National Strategic Plan ............................................................................................................. 6

Current Laws ........................................................................................................................................ 6

Workplace Regulations .................................................................................................................... 6

Reports released following the Asbestos Management Review ......................................................... 7

Committee consideration ....................................................................................................................... 7

Senate Education, Employment and Workplace Relations Committee .............................................. 7

Senate Standing Committee for the Scrutiny of Bills ........................................................................ 10

Joint Parliamentary Committee on Human Rights ............................................................................ 10

Policy position of non-government parties/independents................................................................... 10

Position of major interest groups ......................................................................................................... 11

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Financial implications ............................................................................................................................ 11

Statement of Compatibility with Human Rights ................................................................................... 11

Key issues and provisions ...................................................................................................................... 11

Concluding comments .......................................................................................................................... 15

Asbestos Safety and Eradication Agency Bill 2013 3

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Asbestos Safety and Eradication Agency Bill 2013

Date introduced: 20 March 2013

House: House of Representatives

Portfolio: Education, Employment and Workplace Relations

Commencement: Sections 1 and 2: the date of Royal Assent. Sections 3 to 48: date to be fixed by Proclamation, or if those provisions have not commenced within six months of Assent then they commence the following day.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The Asbestos Safety and Eradication Agency Bill 2013 (the Bill) seeks to establish an Asbestos Safety and Eradication Agency (the Agency). The Bill would also establish an Asbestos Safety and Eradication Council (the Council) to provide advice and make recommendations to the CEO on the Agency’s functions and answer the Minister’s requests for information on asbestos safety.

Structure of the Bill

This Bill is divided into a number of parts. Part 1 sets out definitions. Part 2 provides for the structure, functions, privileges and immunities of the Agency. Part 3 outlines the role of the Chief Executive Officer (CEO) of the Agency. Part 4 sets out the Agency’s staffing arrangements. Part 5 provides for the functions, membership, and terms and conditions of appointment to the Council. Part 6 concerns the Agency’s annual operational plan and report. Part 7 concerns the Agency’s ability to delegate, the five-year review and the Minister’s ability to make rules under the Act.

Background

What is asbestos?

Asbestos consists of naturally occurring fibres that were commonly used in construction and the manufacture of certain household goods until their use was gradually phased out due to their carcinogenic effects on lungs.1 The use, importation and manufacture of the common white asbestos fibre (chrysotile) was banned in Australia from 31 December 2003 after other asbestos types

1. Asbestos Management Review, Asbestos management review: report, DEEWR, Canberra, June 2012, p. 10, viewed 4 April 2013, http://foi.deewr.gov.au/documents/asbestos-management-review-report-june-2012

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(brown/grey and blue) were either already banned or had no current use.2 The white asbestos fibre was the last type used in Australia.3

The World Health Organisation found that there is no safe usage possible with asbestos.4 The case law indicates that, while exposure to a single asbestos fibre would not cause asbestos-related diseases, the ‘cumulative effect of exposure to asbestos’ is well recognised and renders all exposures potentially dangerous.5 There have been compensation cases in which plaintiffs seeking to establish that their cancer was caused by exposure to asbestos, have not been able to do so to the legal standard of ‘on the balance of probabilities’ due to insufficient medical and epidemiological evidence to prove causation.6 However, there have also been numerous cases in which the standard of proof has been satisfied. The area has been the subject of much litigation, and there are still unresolved cases. Nevertheless, while some of the causative issues have been the subject of litigation, it is now generally accepted that mesothelioma is caused by exposure to asbestos, and that the cumulative effect of exposure to asbestos increases the prospective risk of contracting the disease.

Various studies have projected that between 15 000 and 25 000 people may die from mesothelioma in Australia in the next 50 years.7 Other asbestos-related diseases include pleural disease, asbestosis and lung cancer.8

National Strategic Plan

History and Context

State and territory asbestos reports

Reports in 2010 by the ACT Government, the New South Wales (NSW) Ombudsman and the Tasmanian Minister for Workplace Relations’ Asbestos Steering Committee each contained

2. Ibid., p. 11; National Occupational Health and Safety Commission (NOHSC), Code of practice for the management and control of asbestos in workplaces, NOHSC, Commonwealth of Australia, Canberra, April 2005, pp. 1-3, viewed 23 April 2013, http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/235/CodeOfPracticeForManagemen tControlofAsbestosInTheWorkplace_NOHSC2018-2005_PDF.pdf

3. Asbestos Management Review, op. cit., p. 11. 4. World Health Organization (WHO), Elimination of asbestos-related diseases, WHO, September 2006, viewed 23 April 2013, http://www.who.int/occupational_health/publications/asbestosrelateddiseases.pdf 5. Amaca Pty Ltd v Booth (2011) 246 CLR 36, [21] (French CJ), [78]-[82] (Gummow, Hayne and Crennan JJ). See also:

http://www.austlii.edu.au/au/cases/cth/HCA/2011/53.html 6. This may be an issue, for example, in relation to a plaintiff with lung cancer who had been exposed to asbestos, but was also a smoker. See, for example, Amaca Pty Ltd v Ellis (2010) 240 CLR 111,[1]-[2], [6], [12]-[13], [66]-[72] (French

CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). See also: http://www.austlii.edu.au/au/cases/cth/HCA/2010/5.html. Evans v Queanbeyan City Council (2011) 9 DDCR 541, [20]-[22], [40]-[54] (Allsop P) [56] (Hodgson JA), [68], [111] (Basten JA) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=153809. 7. Asbestos Management Review, op. cit., pp. 14-15. 8. Ibid., p. 12.

Asbestos Safety and Eradication Agency Bill 2013 5

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recommendations as to asbestos identification and removal.9 These reports were followed by the Asbestos Management Review (discussed below).

First Asbestos Summit

In June 2010, the first Asbestos Summit was held in Sydney where the Australian Council of Trade Unions (ACTU), Australian Manufacturing Workers Union (AMWU) and other unions, as well as the Cancer Council Australia called for a national statutory authority to coordinate asbestos awareness, and its control and eradication across all sectors, instead of an inconsistent array of Commonwealth, state and territory regulations.10

Asbestos Management Review

In 2010, the then Minister for Workplace Relations, Senator Chris Evans, announced the Asbestos Management Review, to be chaired by Geoff Fary. The review was tasked with conducting a national investigation into asbestos management and research and developing a national strategic plan to improve asbestos awareness, management and control.11

Recommendations

The Asbestos Management Review Report June 2012 (the Review Report) recommended that the Federal Government coordinate with its state and territory counterparts to establish a ‘National Strategic Plan for Asbestos Awareness and Management in Australia’ (‘the National Strategic Plan’) to improve asbestos identification, management and removal.12 This included the recommendation that a national agency be established to have ‘responsibility for the implementation, review, refinement and further development of the plan’ consistent with the Review Report’s recommendations.13

9. Asbestos Management Review, ACT asbestos management review - 2010, Final report, Australian Capital Territory Chief Minister and Treasury Directorate, Canberra, 1 September 2010, pp. 48-50, viewed 23 April 2013, http://www.cmd.act.gov.au/__data/assets/pdf_file/0011/235991/asbestosreview.pdf; New South Wales Ombudsman, Responding to the asbestos problem: the need for significant reform in NSW, New South Wales Ombudsman, November 2010, pp. 18-21, viewed 23 April 2013, http://www.ombo.nsw.gov.au/__data/assets/pdf_file/0015/3372/SR_AsbestosProblem_Nov10.pdf; Minister for Workplace Relations’ Asbestos Steering Committee, Improving asbestos management in Tasmania, report to the Minister for Workplace Relations by the Asbestos Steering Committee, Workplace Standards Tasmania, Department of Justice, Tasmania, January 2010, viewed 23 April 2013, http://www.wst.tas.gov.au/__data/assets/pdf_file/0017/134522/AR017.pdf

10. Australian Manufacturing Workers Union (AMWU), National declaration: towards an Australian Safe Asbestos Free Environment (SaFE), media release, 29 June 2010, viewed 26 March 2013, http://www.amwu.org.au/content/upload/files/campaigns/Asbestos/asbestos_dec_jun_2010.pdf

11. C Evans (Minister for Jobs, Skills and Workplace Relations), National Asbestos Management Review established, media release, 29 October 2010, viewed 29 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F331143%22

12. Asbestos Management Review, op. cit., p. 7. 13. Ibid., pp. 9, 47-50.

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The Office of Asbestos Safety (‘the Office’) was set up by the Federal Government’s Department of Education, Employment and Workplace Relations to formulate the National Strategic Plan.14

Second National Asbestos Summit

The parties present at the second National Asbestos Summit endorsed the announcement by Bill Shorten, Minister for Employment and Workplace Relations, of the formation of the Agency, as well as the Coalition’s support of the recommendations in the Review Report.15

The National Strategic Plan

The National Strategic Plan is due to be finalised by 1 July 2013, at the same time that the Agency is scheduled to commence operation.16

The Office has released a discussion draft regarding the National Strategic Plan.17

Current Laws

The Review Report noted that asbestos control and removal are regulated under a series of Commonwealth, state and territory laws implemented by various regulators, each operating differently in certain areas (for example workplace, health, environmental protection) - which has led to inconsistencies in asbestos management across Australia.18

Workplace Regulations

14. B Shorten (Minister for Employment and Workplace Relations), National action to tackle Australia’s deadly asbestos legacy, media release, 20 March 2013, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2314248%22

15. E Abetz (Shadow Minister for Employment and Workplace Relations), Address to the National Safety Council of Australia, media release, Sydney, 25 September 2012, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2164418%22; AMWU, Response to asbestos management review, media release, 4 September 2012, viewed 26 March 2013, http://www.actu.org.au/Images/Dynamic/attachments/6654/Asbestos%20Summit%20Declaration_040912.pdf; B Shorten (Minister for Employment and Workplace Relations), A national approach to asbestos management, media release, 4 September 2012, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1893720%22

16. B Shorten, ‘Second reading speech: Asbestos Safety and Eradication Agency Bill 2013’, House of Representatives, Debates, 20 March 2013, p. 2721, viewed 3 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F8143f75e-7f37-4128-8d3b-e62455d99a32%2F0059%22; B Shorten (Minister for Employment and Workplace Relations), National action to tackle Australia’s deadly asbestos legacy, media release, 20 March 2013, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2314248%22

17. Office of Asbestos Safety, National Strategic Plan for asbestos awareness and management, discussion draft, DEEWR, Canberra, 2 April 2013, viewed 4 April 2013, http://foi.deewr.gov.au/node/31855 18. Asbestos Management Review, op. cit., pp. 15-16, 22, 28-31, 67-73.

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Currently, workplace asbestos management and removal is regulated by different state and territory agencies.19 The Work Health and Safety (WHS) regime is a move to harmonise Australia’s workplace safety system.20 Regulations under WHS laws concerning asbestos are almost identical in New South Wales, Queensland, South Australian, Tasmanian, and Northern Territory workplaces.21 While the ACT is a WHS jurisdiction, it retains its own asbestos regime.22 Victoria and Western Australia have not joined the uniform WHS regime and have their own individual occupational health and safety regulations that apply to asbestos.23 The Asbestos Management Review recommended that the National Strategic Plan should seek to have nationally consistent legislation concerning asbestos identification and removal outside the workplace context to complement the WHS regime.24

Reports released following the Asbestos Management Review

The Queensland Ombudsman reported on the state’s asbestos regulations and recommended certain reforms.25 The Queensland Ombudsman anticipated that state strategies would broadly align with the National Strategic Plan once it is finalised.26

The NSW Government’s Heads of Asbestos Coordination Authorities released its asbestos plan in 2013 stating that it ‘…looks forward to establishing a strong relationship with the Office’.27

Committee consideration

Senate Education, Employment and Workplace Relations Committee

The Bill has been referred to the Senate Education, Employment and Workplace Relations Committee for inquiry and report by 14 May 2013, with submissions to be received by 15 April

19. Ibid., pp. 28-29, 40. 20. S O’Neill and M Neilsen, Work Health and Safety Bill 2011, Bills Digest, no. 29, 2011-12, Parliamentary Library, Canberra, 2011, pp. 5-7, viewed 4 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1008376%

22

21. Chapter 8 of the Work Health and Safety Regulations 2011 (Cth); Work Health and Safety Regulation 2011 (QLD); Work Health and Safety Regulation 2011 (NSW); Work Health and Safety (National Uniform Legislation) Regulations (NT); Work Health and Safety Regulations 2012 (SA); Work Health and Safety Regulations 2012 (Tas). See also: Asbestos Management Review, op. cit., pp. 15-16.

22. Building (General) Regulation 2008 (ACT); Construction Occupations (Licensing) Act 2004 (ACT); Dangerous Substances Act 2004 (ACT); Asbestos Management Review, op. cit., pp. 70-71. 23. Occupational Health and Safety Regulations 2007 (Vic), Part 4.3; Occupational Safety and Health Regulations 1996 (WA), regulation 3.126, and Part 5, Division 4. 24. Asbestos Management Review, op. cit., pp. 29-31. 25. Queensland Ombudsman, The asbestos report: an investigation into the regulation of asbestos in Queensland,

Brisbane, Queensland, March 2013, p. 59, viewed 26 March 2013, http://www.ombudsman.qld.gov.au/Portals/0/docs/Publications/Inv_reports/Asbestos_Report_V1_web.pdf 26. Ibid., pp. 10, 60. 27. Heads of Asbestos Coordination Authorities, The NSW state-wide Asbestos Plan: a plan to secure the safe management of asbestos in NSW, WorkCover NSW, Gosford, NSW, 2013, pp. 2, 22, viewed 5 April 2013, http://www.workcover.nsw.gov.au/formspublications/publications/Documents/2013-statewide-asbestos-plan-3760.pdf

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2013.28 Details of the inquiry are at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asb estos_safety/index.htm.29

Many of the submissions have commented on the structure and role of the Agency and the Council. There have been some suggestions that the Council should have more input into the creation and amendment of the National Strategic Plan, and be able to appoint committees. The following is a summary of the submissions:

 Workplace Standards Tasmania expressed concerns that the Council could be ‘too cumbersome and disconnected from on ground networks and technical expertise to work effectively’ with the caveat that it is aware that ‘discussions around the structure of the Council and the Agency are ongoing30’

 in their joint submission, the AMWU and the Construction, Forestry, Mining and Energy Union (CFMEU) ask for the Bill to be amended so that the Council is required to have representatives across ‘the spectrum of expertise’ and is not dominated by one sector. They also ask for an ACTU representative to be a required member of the Council.31 The submission suggests that the Council’s ability to make recommendations would allow for the establishment or functioning of committees, but that this should be made explicit in the legislation.32 The submission also advocates for the Council to be able to comment on the content or methods contained in the National Strategic Plan33

28. Selection of Bills Committee, Report No. 4 of 2013, Australian Government, 21 March 2013, p. 3, viewed 26 March 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=selectionbills_ctte/reports/20 13/rep0413.htm; A McEwen, Selection of Bills Committee, Report No. 4 of 2013, Senate, Debates, 21 March 2013, p. 2391, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Feb494847 -1a67-4abb-92d5-f64445a301ee%2F0122%22

29. Senate Standing Committee on Education, Employment and Workplace Relations, Inquiry into the Asbestos Safety and Eradication Agency Bill 2013, March 2013, viewed 23 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/ind ex.htm

30. Workplace Standards Tasmania, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, 12 April 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm

31. AMWU and CFMEU, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, April 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm

32. Ibid. 33. Ibid.

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 the ACTU asks for the Bill to be amended so that the Agency and the Council are able to amend the National Strategic Plan. The ACTU also states that it is unclear whether the Agency just implements a plan that it had no hand in developing.34 The ACTU also agrees with the AMWU and CFMEU that it should be represented on the Council.35 The ACTU also submits that the Council should be able to establish committees and have a role in determining the annual Operational Plan36

 the submission of the Victorian Trades Hall Council (VTHC) is largely consistent with the ACTU’s submission37

 Asbestoswise proposed that union, asbestos support groups and Cancer Council representatives should be members of the Council.38 It also submits that the Council should be able to appoint committees and have a role in creating and implementing the National Strategic Plan39

 the Australian Chamber of Commerce and Industry (ACCI) submits that the name of the Agency should be changed, so that it does not include the term ‘eradication’. The ACCI considers that the term is ‘emotive and … places an undue emphasis on eradication of asbestos as the method to eliminate asbestos-related disease’. 40 The ACCI considers that there is no need to proactively ‘eliminate’ asbestos which is in stable form and is not posing a risk. Instead, asbestos should only be eliminated when it is disturbed by deterioration or buildings containing it are demolished, substantially refurbished or maintained or renovated.41 The ACCI submits that the Council should provide a role for national peak bodies, including those representing businesses, and that the Agency should liaise with industry or non-government bodies and agencies when considering the National Strategic Plan42

34. ACTU, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, 12 April 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm

35. Ibid. 36. ACTU, Submission to the Senate Education, Employment and Workplace Relations Committee, op. cit. 37. VTHC, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, 15 April 2013,

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm 38. Asbestoswise, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, 15 April 2013, viewed 29 April 2013,

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm 39. Ibid. 40. ACCI, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, April 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm 41. Ibid. 42. Ibid.

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 the Chamber of Minerals and Energy of Western Australia, which represents resource companies in the state, opposes the establishment of a new Agency, as it considers that its functions could be performed by an existing government department using current resources. The Chamber is opposed to any changes to existing regulations concerning naturally occurring asbestos43 and

 the Queensland Government submits that the proposed composition of the Council will not achieve the objective of ensuring that the national response to asbestos is formulated with input from all levels of government, including local government. It also considers that it is inappropriate for the National Strategic Plan to attempt to bind state and territory governments to spend significant resources that have not yet been properly costed.44 It also notes that the proposed deadline of 2030 is unlikely to be achieved and could encourage rogue operators, expose asbestos removalists to danger and result in further illegal dumping if proper support is not in place.45

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest, the Scrutiny of Bills Committee had not reported on the Bill.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not reported on the Bill.

Policy position of non-government parties/independents

The Coalition supports the recommendations contained in the Review Report.46 The Leader of the Australian Greens, Senator Christine Milne, encouraged the Government to establish a National Asbestos Authority to implement the Review Report’s recommendations.47

43. The Chamber of Minerals and Energy of Western Australia, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, 15 April 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm

44. Queensland Government, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into Asbestos Safety and Eradication Agency Bill 2013, viewed 29 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/asbestos_safety/sub missions.htm

45. Ibid. 46. E Abetz, Address to the National Safety Council of Australia, op. cit. 47. C Milne, Australia, Senate, Journals, no. 136, 2010-13, p. 3700, viewed 23 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fjournals%2F20130228_

SJ136%2F0024%22

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Position of major interest groups

As set out above, the parties present at the second National Asbestos Summit, including the ACTU and Cancer Council Australia, endorsed Minister Shorten’s announcement of the formation of the Agency, as well as the Coalition’s support of the recommendations in the Review Report.48

On 13 February 2013, building unions renewed their calls for the proposed national body to be established and funded.49

Financial implications

According to the Explanatory Memorandum, the cost of establishing the new Agency will be $12.3 million over the forward estimates.50

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.51

The Statement of Compatibility with Human Rights states that the Bill is consistent with the right to safe and healthy working conditions in removing asbestos, the right to enjoy the highest attainable standard of physical and mental health free from asbestos-related diseases, and the right to privacy in proper handling of personal information.52

Key issues and provisions

Clause 6 establishes the Agency, which is to consist of a CEO and Agency staff.53 The Agency’s functions are set out in clause 8, and revolve around implementing the National Strategic Plan. The functions also include advising the Minister about asbestos safety as required, inter-governmental liaison on asbestos issues, and the further study of asbestos safety issues. It is a requirement that the Agency act in accordance with the National Strategic Plan.54

48. E Abetz, Address to the National Safety Council of Australia; AMWU, Response to Asbestos Management Review; B Shorten, A national approach to asbestos management, op. cit. 49. C Lucas, ‘Building unions seek laws to clear asbestos’, The Sydney Morning Herald, 13 February 2013, p. 5, viewed 26 March 2013,

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F2225985%22 50. Explanatory Memorandum, Asbestos Safety and Eradication Agency Bill 2013, Part 1 - Preliminary. 51. The Statement of Compatibility with Human Rights can be found at page 1 of the annexure to the Explanatory

Memorandum to the Bill. 52. Explanatory Memorandum, Asbestos Safety and Eradication Agency Bill 2013, pp. 1-3 of annexure. 53. Clause 7 of the Bill. 54. Subclause 8(3) of the Bill.

12 Asbestos Safety and Eradication Agency Bill 2013

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The Agency may perform its functions only within constitutional limits set out in subclause 8(4). These limits refer to areas where the Commonwealth can legislate in accordance with the Constitution. This includes the trade and commerce (i), postal (v), statistics (xi), defence (vi) corporations (xx), external affairs (xxix), and incidental (xxxix) powers under section 51 and the territories power under section 122 of the Constitution.55 The Agency may also rely on the powers relating to Commonwealth places and services provided by Commonwealth authorities, as well as the implied nationhood power and the Commonwealth’s executive power.

The Agency is to have a CEO56 to manage its affairs57 and to ensure the Agency performs its functions.58 The CEO must have regard to any advice provided, recommendations made or guidelines issued by the Council.59 The CEO may also attend Council meetings.60 The CEO is to keep the Minister informed of the Agency’s operations61 and provide the Minister with such information on the Agency’s operations as the Minister requires.62

The Minister will be able to give written directions by way of legislative instrument63 to the CEO on the performance of the Agency’s functions and such directions must be followed64, except to the extent they relate to the CEO’s performance of functions, or exercise of powers, under the Public Service Act 1999.65

The CEO is to be appointed by the Minister on a full-time basis by written instrument for a term of up to five years and may be reappointed.66 The Minister may also appoint an acting CEO.67 The CEO is to be paid as per any applicable Remuneration Tribunal determination68 and otherwise as per rules made by the Minister under clause 48.69 The Remuneration Tribunal is to determine annual leave entitlements70 and the Minister may grant the CEO leave of absence.71 The CEO must not engage in outside work without the Minister’s approval72 and the CEO must disclose any pecuniary interest

55. The Australian Constitution is available at: http://www.comlaw.gov.au/Details/C2004C00469 56. Clause 10 of the Bill. 57. Paragraph 11(1)(a) of the Bill. 58. Paragraph 11(1)(b) of the Bill. 59. Subclause 12(1) of the Bill. 60. Subclause 12(2) of the Bill. 61. Subclause 13(1) of the Bill. 62. Subclause 13(2) of the Bill. 63. Subclause 14(1) of the Bill. The disallowance and sunsetting provisions contained in the Legislative Instruments Act

2003 will not apply to these directions - see subsections 44(1) and 54(1) of that Act, which is available at: http://www.comlaw.gov.au/Details/C2013C00032 64. Subclause 14(2) of the Bill. 65. Subclause 14(3) of the Bill. 66. Clause 15 of the Bill. 67. Clause 16 of the Bill. 68. Subclauses 17(1) and 17(3) of the Bill. 69. Subclause 17(2) of the Bill. 70. Subclause 18(1) of the Bill. 71. Subclause 18(2) of the Bill. 72. Clause 19 of the Bill.

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that would or could conflict with the proper performance of his or her functions.73 The CEO may resign74 and provision is made for the Minister to terminate the CEO’s appointment in cases of misbehaviour and similar actions, as well as bankruptcy.75

Part 5 of the Bill provides for the Council, which is to be established by clause 28. The Council’s functions are set out in clause 29 and include advising the CEO about the Agency’s performance76 and advising the Minister about asbestos safety if the Minister requests.77 The Council will be able to issue written guidelines to the CEO about the Agency’s performance78, however the Council will not be able to give directions to the CEO as such.79 The Minister will be able to give written directions by way of legislative instrument80 to the Council about the performance of its functions and such directions are to be followed.81

The Council, to be appointed on a part-time basis by the Minister82, is to consist of a Chair, a Commonwealth representative member, two members representing state, territory and local governments and four ‘other members’.83 To be appointed as Chair or ‘other member’, the Minister must be satisfied the person has knowledge or experience in asbestos-related issues, financial management and/or corporate governance.84 Members can be appointed for up to three years and may be reappointed.85 The Minister may also make acting appointments.86 Members are to be paid as per any applicable Remuneration Tribunal determination87 and otherwise as per rules made by the Minister under clause 48.88 Members are not to be paid if they are employed full-time by a state or by a state public sector entity (other than a tertiary education institution).89 A similar rule already applies to such persons in a similar relationship with the Commonwealth or a territory.90

The Minister may grant leave of absence to the Chair and other Members of the Council.91 All members must disclose any interests they have in matters to be considered by the Council.92 Such

73. Clause 20 of the Bill. 74. Clause 22 of the Bill. 75. Clause 23 of the Bill. 76. Paragraph 29(1)(a) of the Bill. 77. Paragraph 29(1)(b) of the Bill. 78. Subclause 29(2) of the Bill. 79. Subclause 29(4) of the Bill. 80. Subclause 30(1) of the Bill. The disallowance and sunsetting provisions contained in the Legislative Instruments Act

2003 (Cth) will not apply to these directions - see subsections 44(1) and 54(1) of that Act. 81. Subclause 30(2) of the Bill. 82. Subclause 32(1) of the Bill. 83. Clause 31 of the Bill. 84. Subclause 32(3) of the Bill. 85. Clause 33 of the Bill. 86. Clause 34 of the Bill. 87. Subclause 35(1) of the Bill. 88. Ibid. 89. Subclause 35(2) of the Bill. 90. Subsection 7(11) of the Remuneration Tribunal Act 1973 (Cth). 91. Clause 36 of the Bill. 92. Subclause 37(1) of the Bill.

14 Asbestos Safety and Eradication Agency Bill 2013

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disclosure must be made as soon as possible after the Member becomes aware of them93 and they must be recorded.94 Members may resign95 and provision is made for the Minister to terminate the appointment of a Council member in cases of misbehaviour and similar actions, as well as bankruptcy.96

The Chair must hold such meetings of the Council as are necessary for the performance of its functions.97 The Chair will preside98 but in the event he or she is absent the other attending members will appoint one of themselves to preside.99

The Agency must provide the Minister with an annual operational plan prior to 1 July of each year.100 This plan is to set out activities to be undertaken by the Agency during the financial year, as well as performance indicators for the assessment of the Agency’s performance during this period.101 This plan must not be inconsistent with the National Strategic Plan.102 The Minister may either approve an annual operational plan provided by the Agency103, or request the Agency to amend it and resubmit a revised version for approval.104 Annual operational plans may be varied by the Agency on its own initiative or at the request of the Minister.105

The Bill provides for the delegation of powers106 and for the Minister to make rules by legislative instrument prescribing appropriate matters.107 There is to be an Annual Report given to the Minister for presentation to the Parliament.108

Five years after the Agency commences operations there is to be a review of the Agency’s role and functions.109 The review is to be completed within six months and the written report resulting from the review is to be tabled in each House of Parliament.110

93. Subclause 37(2) of the Bill. 94. Subclause 37(3) of the Bill. 95. Clause 39 of the Bill. 96. Clause 40 of the Bill. 97. Subclause 41(1) of the Bill. 98. Subclause 41(2) of the Bill. 99. Subclause 41(3) of the Bill. 100. Subclause 42(1) of the Bill. 101. Subclause 42(2) of the Bill. 102. Subclause 42(3) of the Bill. 103. Paragraph 43(1)(a) of the Bill. 104. Paragraph 43(1)(b) of the Bill. 105. Clause 44 of the Bill. 106. Clause 46 of the Bill. 107. Clause 48 of the Bill 108. Clause 45 of the Bill. 109. Subclauses 47(1) and 47(2) of the Bill. 110. Subclause 47(4) of the Bill.

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Concluding comments

The Bill establishes the Agency to implement the anticipated National Strategic Plan to identify, manage and remove asbestos in Australia, and encourage research to prevent and treat mesothelioma as well as other asbestos-related diseases. This may help standardise and make more efficient the various regulatory frameworks currently governing asbestos identification and removal. The Council established by the Bill provides oversight of the Agency and advice to the Minister about asbestos safety as requested.

16 Asbestos Safety and Eradication Agency Bill 2013

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