Regulator slow to bring cases on asbestos
Building owners are flouting regulations around a potentially deadly material but not being prosecuted, writes Rob Stock.
It has been nearly a year since the asbestos regulations came in and not a single commercial building owner has been prosecuted for failing to put in place an asbestos management plan.
WorkSafe New Zealand says it has also not prosecuted a residential landlord for similar failure to comply.
The regulations came into force in April last year, as part of a plan to reduce exposure to asbestos dust, which can lead to asbestosis, cancers and early death. Those who fail to comply face fines of up to $10,000.
But while some tradespeople have been prosecuted by WorkSafe for unsafe handling of asbestos, building owners – even those caught with no asbestos management plan – appear to be at low risk of proceedings.
One residential landlord was found by the Tenancy Tribunal in January to have breached the asbestos regulations when he hired a builder to do work on his property, which spread asbestos fibres throughout the property, but the tribunal did not alert WorkSafe to the breaches.
The tenant told WorkSafe about the case, but it did not prosecute , though it ordered work on the site to stop until it could be done safely.
The builder hired to do the work was also given a ‘‘compliance letter’’.
Although WorkSafe did not seek a fine, the tribunal awarded $4000 in exemplary damages, to be paid by landlord Michael Rayner to tenants Adam Reis and Liat Reis. The tribunal agreed that the landlord was in business and must ensure the health and safety of tenants and ensure that work environments were without health and safety risks.
‘‘The landlord cannot simply put their head in the sand and pass that risk over to [tradespeople]. The work site should be under the control of the landlord,’’ the tribunal said.
WorkSafe’s general manager of better regulation and legal, Mike Hargreaves, said it was easy to focus on prosecution as the only method to ensure regulatory compliance.
WorkSafe had a range of enforcement tools, not just prosecution, to help ensure that businesses meet their asbestos obligations, including eduction, he said.
Asbestos was used in thousands of building materials, and is present in hundreds of thousands of homes as well as government and commercial buildings.
It can be hard to spot, but as long as it is not in a ‘‘friable’’ state, giving off dust, asbestos is not a threat to human health.
Homeowners were not required to have an asbestos management plan, but had a legal duty to handle asbestos with care.
This week public health specialist Dr David Skegg pointed to New Zealand’s failure to manage the asbestos threat as one of four examples of public health failure.
In his book The Health of the People, he puts that failure down to the absence of a
‘‘Sadly, this toll of avoidable deaths will continue for decades.’’ Public health specialist Dr David Skegg
national agency for public health, which New Zealand had until it was disbanded in 1994 by the health minister at the time, Dame Jenny Shipley.
The Public Health Commission was seen as a threat by the alcohol, tobacco and food industries. But had it survived, Skegg believed New Zealand would have a national asbestos strategy, just like Australia.
Without an independent public health agency, public health issues which were not immediately pressing were easy to ignore, he said.
‘‘If exposure to asbestos caused cancer within weeks, there would have been immediate action. [But] because the process actually takes decades, New Zealand authorities were lulled into complacency long after the risks had been clearly documented,’’ Skegg said.
‘‘Reports documented a rising both asbestosis and mesothelioma.
‘‘Mesothelioma is nearly always described as a ‘rare’ tumour, but in fact there are now about a hundred people newly diagnosed with this cancer each year in New Zealand.
‘‘In 2015 the number of deaths from mesothelioma (107) was double the number from cervical cancer, although most were at older ages. The great majority of deaths toll of
(84 per cent) were in men, reflecting the occupations at increased risk.
‘‘Asbestos probably causes an even higher number of cases of lung cancer.
‘‘Asbestos exposure is the leading occupational cause of death in New Zealand. Sadly, this toll of avoidable deaths will continue for decades to come, while hundreds of millions of dollars are spent trying to remove asbestos from our buildings.’’
Skegg said asbestos awareness, and safe handling, had improved, but a plan to lift public awareness was needed.
He did not support calls for an electronic register of asbestos management plans to be set up.
While he called for the establishment of a public health commission, he did not support the setting up of a government agency to deal with asbestos, as Australia has done, saying New Zealand was too small to justify the costs.