2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

Part 1.1 Building Act 2004 3

Part 1.2 Building Regulation 2004 13

Part 1.3 Civil Law (Sale of Residential Property) Act 2003 16

Part 1.4 Construction Occupations (Licensing) Act 2004 17

Part 1.5 Construction Occupations (Licensing) Regulation 2004 22

Part 1.6 Dangerous Substances Act 2004 29

Part 1.7 Residential Tenancies Act 1997 30

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

An Act about the management of asbestos, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Asbestos Legislation Amendment Act 2006.

(1) This Act commences on the 7th day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

(2) However, a date or time provided by a special commencement provision for an amendment made by this Act has effect as the commencement date or time of the amendment.

(3) In this section:

special commencement provision, for an amendment made by this Act, is a provision, in brackets beginning with the text ‘commencement:’, at the end of the amendment.

An amendment followed by ‘(commencement: on a day fixed by the Minister by written notice)’ means that the amendment commences on the day fixed by the Minister by written notice.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

This Act amends the legislation mentioned in schedule 1.

(1) In this Act:

minor maintenance work means minor maintenance on premises that is personally done by an individual who owns or occupies the premises.

(2) In this section:

minor maintenance means all or any of the following done in relation to bonded asbestos:

(a) low speed or hand drilling;

(b) sealing;

(c) painting;

(d) coating;

(e) cleaning.

For this Act, work disturbs friable asbestos if the work increases, or may significantly increase, the risk of the dispersal of asbestos fibres into the air.

the handling of asbestos or disturbance of loose asbestos

handling asbestos or disturbing friable asbestos

Loose asbestos

Friable asbestos

(1) This part does not apply to—

(a) building work in relation to an exempt building; or

(b) building work that is exempt under a regulation.

(2) However, this part applies to building work mentioned in subsection (1) if—

(a) the work involves—

(i) handling asbestos; or

(ii) disturbing friable asbestos; and

(b) the work is not—

(i) minor maintenance work done in accordance with the asbestos code; or

(ii) exempt from this subsection under a regulation.

(ii) the alteration of a building other than a class 1, class 2 or class 10a building; and

(c) be accompanied by an asbestos removal control plan if a building to which the building work relates—

(i) is a class 1, class 2, class 3 or class 4 building, or a class 10 building associated with a class 1, class 2, class 3 or class 4 building; and

(ii) was erected before, or the erection of which started before, 1985; and

(d) if there is an asbestos assessment report for premises to which the building work relates—be accompanied by a copy of the asbestos assessment report unless the applicant cannot obtain the report after taking reasonable steps.

(3) If the certifier issues a building approval—

(a) the building approval must be marked on, attached to or partly marked on and partly attached to, each page of the plans it relates to; and

(b) the certifier must—

(i) initial and mark his or her licence number on each page of the plans; and

(ii) attach each accompanying document to the plans; and

(iii) if the accompanying documents do not include an asbestos assessment report—attach an asbestos advice to the plans.

Note If a form is approved under s 151 for a building approval, the form must be used.

(4) However, if, because of the size of the plans, it is impractical to mark the building approval on each page of the plans, the certifier may, instead of marking the approval under subsection (3) (a), mark each page of the plans with an indication that the approval, or part of the approval, is in a separate document.

(5) Also, if, because of the size of 1 or more of the accompanying documents (the relevant documents), it is impractical to attach the relevant documents to the plans, the certifier may, instead of attaching the relevant documents under subsection (3) (b) (ii), mark each page of the plans with an indication that the relevant documents are separate.

(6) If the certifier issues the building approval, the certifier must—

(a) give to the person who applied for the approval a copy of—

(i) the approval; and

(ii) the relevant plans; and

(iii) if 1 or more of the accompanying documents are not attached to the plans—the accompanying documents that are not attached; and

(b) not later than 7 days after the day of issue, give to the construction occupations registrar—

(i) a copy of the approval; and

(ii) a copy of the relevant plans; and

(iii) if 1 or more of the accompanying documents are not attached to the plans—a copy of the accompanying documents that are not attached; and

(iv) if notification of the certifier’s appointment has not previously been given to the registrar—notification of the appointment.

Note 1 If a form is approved under s 151 for a notification of appointment, the form must be used.

(7) In this section:

accompanying document, in relation to a building approval, means a document required to accompany the application for the building approval.

Note Section 26 requires certain documents to accompany applications for building approval and allows other material required to accompany applications to be prescribed by regulation.

(d) if an asbestos removal control plan is required to accompany the application—the plan complies with the asbestos code;

(e) the building as proposed to be erected or altered will be structurally sufficient, safe and stable.

the handling of asbestos or disturbance of loose asbestos

handling asbestos or disturbing friable asbestos

(3A) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that—

(a) the carrying out of the building work contravened section 42 only because friable asbestos was disturbed in carrying out the work; and

(b) either—

(i) the defendant took reasonable steps to minimise the risk of friable asbestos being disturbed; or

(ii) the disturbing of the friable asbestos happened in the defendant taking reasonable steps to minimise the risks resulting from the disturbance of the friable asbestos.

(1) This part does not apply to building work in relation to an exempt building.

(2) However, this part applies to building work mentioned in subsection (1) if—

(a) the work involves—

(i) handling asbestos; or

(ii) disturbing friable asbestos; and

(b) the work is not—

(i) minor maintenance work done in accordance with the asbestos code; or

(ii) exempt from this subsection under a regulation.

the handling of asbestos or disturbance of loose asbestos

handling asbestos or disturbing friable asbestos

(1) This part does not apply to—

(a) building work in relation to an exempt building; or

(b) building work that is exempt under a regulation.

(2) However, this part applies to building work mentioned in subsection (1) if—

(a) the work involves—

(i) handling asbestos; or

(ii) disturbing friable asbestos; and

(b) the work is not—

(i) minor maintenance work done in accordance with the asbestos code; or

(ii) exempt from this subsection under a regulation.

the handling of asbestos or disturbance of loose asbestos

handling asbestos or disturbing friable asbestos

land or

(1) The Minister may approve codes of practice for this Act.

Note A power given under an Act to make a statutory instrument (including a code of practice) includes power to amend or repeal the instrument (see Legislation Act, s 46 (1)).

(2) A code of practice may—

(a) set out practices, standards and other matters about building work if the work involves the use, handling or disposal of asbestos; and

(b) be approved as in force from time to time.

(3) An approved code of practice is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Note 2 An amendment or repeal of a code of practice is also a disallowable instrument (see Legislation Act, s 46 (2)).

(4) The construction occupations registrar must make a copy of the asbestos code, and any instrument (or provision of an instrument) applied (with or without change) by the asbestos code, available for public inspection during ordinary office hours at—

(a) the office of the construction occupations registrar; or

(b) another place prescribed by regulation.

(5) In this section:

applied includes adopted and incorporated.

asbestos advice—see the Dangerous Substances Act 2004, section 47J.

asbestos assessment report, for premises—see the Dangerous Substances Act 2004, section 47K.

asbestos code means the codes of practice that are approved under section 139B.

asbestos removal control plan, in relation to building work, means a plan, complying with the asbestos code, that provides for the management of any asbestos disturbance resulting from the building work.

bonded asbestos means asbestos in a form where the asbestos fibres are held within another material (for example, cement) but does not include friable asbestos.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

disturbs friable asbestos—see section 10B.

friable asbestos means asbestos, whether or not contained in other material, that—

(a) is crumbly, dusty or powdery; or

(b) when dry, can be crumbled, pulverised or reduced to powder by hand pressure.

1 sprayed asbestos coating or insulation

2 asbestos lagging

3 loose asbestos, asbestos in its raw form

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

handling asbestos—to remove any doubt, handling asbestos (including friable asbestos) includes disturbing the asbestos.

minor maintenance work—see section 10A.

premises includes land or a structure and any part of an area of land or a structure.

Building work includes building work that involves handling asbestos or disturbing friable asbestos.

1 removal of asbestos

2 cutting a hole in a sheet of asbestos

Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) Specialist building work includes building work that involves handling asbestos or disturbing friable asbestos.

(2) For subsection (1), handling asbestos does not include handling bonded asbestos that forms part of a residential building.

(1) Building work that involves handling asbestos is exempt building work if—

(a) the asbestos is bonded asbestos; and

(b) not more than 10m² of asbestos is handled during the building work; and

(c) each person who handles the asbestos—

(i) works in a prescribed occupation; and

(ii) has a relevant asbestos qualification; and

(d) the asbestos is handled by each person who handles it in the course of the person’s occupation.

(2) The construction occupations registrar may declare—

(a) an occupation to be a prescribed occupation; or

(b) a qualification to be a relevant asbestos qualification.

(3) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(4) In this section:

building surveyor—see the Construction Occupations (Licensing) Act 2004, section 9.

construction occupation—see the Construction Occupations (Licensing) Act 2004, section 7.

plumbing plan certifier—see the Construction Occupations (Licensing) Act 2004, section 14.

prescribed occupation means—

(a) a construction occupation, other than building surveyor or plumbing plan certifier; or

(b) an occupation declared to be a prescribed occupation under subsection (2).

relevant asbestos qualification means a qualification declared to be a relevant asbestos qualification under subsection (2).

stable asbestos cement sheeting

bonded asbestos

(ii) any waste management plan provided in the application; and

(iii) any asbestos removal control plan provided in the application;

(i) if there are premises covered by the proposed contract and there is a current asbestos assessment report for the premises (or some or all of them)—a copy of each current asbestos assessment report;

(j) if there are premises covered by the proposed contract, but there is no current asbestos assessment report for the premises (or any of them), or, if a current asbestos assessment report for the premises (or any of them) exists but the seller cannot, after taking reasonable steps, find or get the report—an asbestos advice;

(k) any other document prescribed by regulation.

(b) has the professional indemnity insurance (if any) required by regulation.

asbestos advice—see the Dangerous Substances Act 2004, section 47J.

asbestos assessment report, for premises—see the Dangerous Substances Act 2004, section 47K.

current asbestos assessment report, for premises, means an asbestos assessment report for the premises if the premises have not been changed, since the report was made, in a way that would affect the accuracy of the report.

premises includes land or a structure and any part of an area of land or a structure.

section 9 (1) (a) to (i)

section 9 (1) (a) to (k)

Each of the following is a construction occupation:

(a) asbestos assessor;

(b) asbestos removalist;

(c) builder;

(d) building surveyor;

(e) drainer;

(f) electrician;

(g) gasfitter;

(h) plumber;

(i) plumbing plan certifier.

(1) An asbestos assessor is an individual who provides, has provided or proposes to provide an asbestos assessment service.

(2) An asbestos assessment service is the doing or supervising of all or any of the following work for this Act, the Building Act 2004, the Civil Law (Sale of Residential Property) Act 2003, the Dangerous Substances Act 2004 or the Residential Tenancies Act 1997:

(a) air monitoring for asbestos;

(b) identifying the location, type and condition of asbestos in buildings, including by taking samples;

(c) assessing the risk resulting from the identified asbestos;

(d) advising on how the asbestos should be managed;

(e) reporting about the work mentioned in paragraphs (a) to (c).

(1) An asbestos removalist is an entity that provides, has provided or proposes to provide an asbestos removal service.

(2) An asbestos removal service is the doing or supervising of building work that involves all or any of the following:

(a) handling (including disturbing) asbestos in buildings;

(b) removing and disposing of asbestos from buildings.

(2) A building service is the doing or supervising of building work, other than building work that involves handling asbestos or disturbing friable asbestos.

Note Building work—see the Building Act 2004, section 6.

(3) In this section:

disturbs friable asbestos—see the Building Act 2004, section 10B.

friable asbestos—see the Building Act 2004, dictionary.

specialist building work—see the Building Regulation 2004, section 4B.

(commencement: on a day fixed by the Minister by written notice)

Each of the following is an operational Act:

• Building Act 2004

• Dangerous Substances Act 2004

• Electricity Safety Act 1971

• Gas Safety Act 2000

• Utilities Act 2000

• Water and Sewerage Act 2000.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(commencement: on a day fixed by the Minister by written notice)

(2) However, the chief executive must not appoint a person under subsection (1) unless satisfied that the person has relevant experience or a relevant qualification in 1 or more of the following areas:

(a) asbestos assessment;

(b) building;

(c) building surveying;

(d) draining;

(e) electrical;

(f) engineering;

(g) gasfitting;

(h) plumbing;

(i) administration of building or construction industry regulatory schemes.

(1) This section applies in relation to a person if—

(a) immediately before the commencement of this section, the person had a builders licence; and

(b) the builders licence was endorsed to authorise the person to do building work that involves handling asbestos or disturbing friable asbestos.

(2) The builders licence continues to authorise the person to do the building work.

(3) If the person’s builders licence expires earlier than 1 year after the commencement of this section and is renewed, the licence as renewed authorises the person to do the building work until 1 year after the day this section commences.

(1) This section applies to the renewal of a licence as a building surveyor if the applicant for renewal was licensed immediately before the commencement of this section.

(2) Despite section 25 (2), the registrar may renew the applicant’s licence if—

(a) the registrar is satisfied that the applicant would be eligible to be licensed under this Act as in force immediately before the commencement of this section if the application were for a new licence of the same kind; and

(b) the renewal starts not later than 1 year after the day this section commences.

This part expires 1 year after the day it commences.

(commencement: on a day fixed by the Minister by written notice)

asbestos assessment service—see section 7A (2).

asbestos assessor—see section 7A (1).

asbestos removalist—see section 7B (1).

asbestos removal service—see section 7B (2).

(h) if the application is for a licence as an asbestos assessor, building surveyor or plumbing plan certifier—the name of the insurer who will provide the insurance mentioned in section 16A (Eligibility to be asbestos assessor), section 17 (Eligibility to be building surveyor) or section 18 (Eligibility to be plumbing plan certifier);

(1) This section applies to a licence in the construction occupation of asbestos assessor, building surveyor or plumbing plan certifier.

(2) The maximum period for which a licence may be issued is 1 year.

(3) However, if the applicant for the issue or renewal of the licence has insurance required under this regulation for a period of less than 1 year, the maximum period for which the licence may be issued or renewed is the period for which the applicant has insurance.

(c) if the licensee is an asbestos assessor, building surveyor or plumbing plan certifier—the name of the insurer who provides the insurance mentioned in section 16A (Eligibility to be asbestos assessor), section 17 (Eligibility to be building surveyor) or section 18 (Eligibility to be plumbing plan certifier) or the regulations;

(1) A corporation or partnership is eligible to be licensed only in the following construction occupations or occupation classes:

(a) asbestos removalist;

(b) builder;

(c) building surveyor;

(d) drainer;

(e) electrician, electrical contractor class;

(f) gasfitter;

(g) plumber;

(h) plumbing plan certifier.

(1) An applicant for a licence as an asbestos removalist is eligible for the licence only if the applicant satisfies the registrar that the applicant has qualifications or experience necessary for the applicant to provide, and understand the minimum health and safety requirements in relation to, the asbestos removal services for which the licence is sought.

(2) In this section:

asbestos removal service—see the Act, section 7B (2).

An applicant for a licence to be an asbestos assessor is eligible for the licence only if the applicant satisfies the registrar that the applicant is adequately insured.

(1) An applicant for a licence as a building surveyor is eligible for the licence only if the applicant satisfies the registrar that—

(a) the applicant has successfully undertaken asbestos management training that has been approved by the registrar under subsection (2); and

(b) the applicant is adequately insured.

(2) The registrar may approve asbestos management training for subsection (1) (a) if the registrar considers that successful undertaking of the training will give an applicant for a licence as a building surveyor adequate knowledge of the requirements to deal appropriately with asbestos.

(3) Subsection (1) (b) does not apply to an application for a licence as principal government building surveyor or government building surveyor.

(4) A person is adequately insured if the person has professional indemnity insurance that provides—

(a) indemnity against claims for breach of professional duty as a building surveyor; and

(b) a minimum limit of indemnity of $1 000 000 for a single claim; and

(c) a minimum limit of indemnity of $1 000 000 for the total of all claims made against the person during the period of cover; and

(d) in addition to the indemnities mentioned in paragraphs (b) and (c), a minimum limit of indemnity for the costs and expenses of defending or settling a claim of 20% of the limit of indemnity for the claim.

(5) For subsection (4), a person is taken to have professional indemnity insurance if the person is an applicant for a principal building surveyor employee licence, or general building surveyor employee licence, and the person’s employer has the insurance.

(6) In subsection (4) (d):

costs and expenses means costs and expenses incurred with the insurer’s consent.

(7) An approval under subsection (2) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(commencement: on a day fixed by the Minister by written notice)

(1A) However, if the building services involve asbestos removal, subsection (1) applies to the building services only if the individual providing the services has a relevant asbestos qualification.

relevant asbestos qualification—see the Building Regulation 2004, section 7A (4).

The construction occupation of asbestos assessor is divided into the classes in schedule 1, part 1.1A, column 2.

The construction occupation of asbestos removalist is divided into the classes in schedule 1, part 1.1B, column 2.

specialist building work

specialist building work or handling asbestos

(commencement: on a day fixed by the Minister by written notice)

bonded asbestos—see the Building Act 2004, dictionary.

friable asbestos—see the Building Act 2004, dictionary.

(1) The Minister must prepare an advice (an asbestos advice) about the likely location of asbestos in residential premises built, or the building of which started, before 1985.

(2) An asbestos advice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) An asbestos assessment report, for residential premises, is a report prepared by an asbestos assessor that—

(a) identifies the location, type and condition of asbestos in relation to the premises; and

(b) assesses the risk resulting from the identified asbestos; and

(c) advises how the asbestos should be managed; and

(d) includes everything required by regulation to be included in the report.

(2) In this section:

asbestos assessor means a person who is licensed under the Construction Occupations (Licensing) Act 2004 in the construction occupation of asbestos assessor class A.

(1) This section applies if—

(a) there is an asbestos assessment report for residential premises; and

(b) an owner, or occupier, (the owner) of the premises engages someone (the worker) to—

(i) provide a construction service at the premises; or

(ii) do other work prescribed by regulation.

(2) The owner must give the worker a copy of the asbestos assessment report for the premises.

(3) However, the owner need not give the worker a copy of the asbestos assessment report for the premises—

(a) if the owner cannot obtain a copy of the report after taking reasonable steps; or

(b) if the work is a response to an emergency situation.

(4) In this section:

construction service—see the Construction Occupations (Licensing) Act 2004, section 6 (2).

(d) if the premises are crisis accommodation provided by a declared crisis accommodation provider—a statement explaining that the lessor can terminate the agreement on 4 weeks notice if the lessor needs the premises to use as crisis accommodation for someone other than the tenant;

(e) if there is an asbestos assessment report for the premises and the lessor can obtain a copy of the report after taking reasonable steps—a copy of the report;

(f) if there is no asbestos assessment report for the premises or the lessor cannot obtain the asbestos assessment report for the premises after taking reasonable steps—an asbestos advice for the premises.

(1) This section applies in relation to a residential tenancy agreement entered into before the commencement of this section that is in force on the commencement of this section.

(2) Not later than 1 year after the commencement of this section, the lessor must give the tenant—

(a) if there is an asbestos assessment report for the premises and the lessor can obtain a copy of the report after taking reasonable steps—a copy of the report; and

(b) if there is no asbestos assessment report for the premises or the lessor cannot obtain the asbestos assessment report for the premises after taking reasonable steps—an asbestos advice for the premises.

(3) Subsection (2) does not apply if the tenant does not live at the premises covered by the residential tenancy agreement 1 year after the commencement of this section.

This part expires 1 year after the day it commences.

asbestos advice—see the Dangerous Substances Act 2004, section 47J.

asbestos assessment report, for premises—see the Dangerous Substances Act 2004, section 47K.

Presentation speech made in the Legislative Assembly on 2006.

Notified under the Legislation Act on 2006.

For the latest republication of amended laws, see www.legislation.act.gov.au.