The Senates recommendations regarding importations of asbestos – increase enforcement, increase penalties, reduce defences
The Senate has handed down a report into “Protecting Australians from the threat of asbestos“.
The report contains a number of recommendations to the Australian Border Force that are aimed at decreasing illegal imports of asbestos. The report makes clear that the Government has a zero tolerance attitude towards the importation of asbestos.
Recommendations that could impact of importers and customs brokers include:
- A review of ABF resourcing required to effectively monitor and prevent the illegal importation of asbestos
- The ABF consider having a specialist unit to manage illegal asbestos importation
- The Customs Act be amended to make it easier to obtain convictions against those importing asbestos
- Consider increasing the threshold required to use “mistake of fact” as a defence
- The Australian Government prioritise the prosecution of asbestos cases
- The Government review increasing the penalties for breaches of the law prohibiting asbestos importations
- It be a requirement that intended imports of high risks goods be subject to accredited testing
- Consider having a “due diligence” requirement in place for procurers of high risk goods
The report is clear, all importations of asbestos must be detected and stopped. Regardless of the extent to which the ABF adopts the recommendations in the report, the tone of report supports a strong compliance approach. Even if it has already been done, Customs Brokers must be making clear to clients the risks associated with importing goods that may contain asbestos. Neither customs brokers nor importers should take a relaxed approach to this issue.
While the last year saw a massive rise in the level of infringement notices for prohibited imports, it needs to be noted that the Senate is asking the Government to prioritise prosecution of importers of asbestos.
In giving evidence to the committee, the ABF noted that there are few prosecutions due to the difficulty of proving the offence has been committed given the existence of the reasonable mistake of fact defence. If this is correct, it must be asked on what basis the ABF issued a large number of infringement notices relating to asbestos imports. If ABF believes that the reasonable mistake of fact defence was available, it had no legal basis to issue the infringement notices. Such comments by the ABF increase the concern that the infringement notice scheme is being used to issue penalties that would not be issued by a Court.
The report was handed down in November and we await the response of the ABF. However, regardless of the formal response, the report clearly endorses a strict approach to the importation of asbestos. Given the ABF enforcement approach will not change, it is important that attitudes of, and levels of due diligence adopted by, importers reflect a zero tolerance environment.