Guidelines for the Management of Lead-Based Paint
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3 STATUTORY CONTROLS ON LEAD
The statutory controls which address the issue of lead contamination are summarised below.
3.1 Health and Safety in Employment Act 1992
Under the Health and Safety in Employment Act 1992, employers must take all practicable steps to protect their employees and other persons in the vicinity from hazards associated with their work. As exposure to lead in paint removal work is a recognised occupational hazard and can cause 'serious harm', an employer must take all practicable steps to eliminate, isolate or minimise the 'significant hazard'.
Employers are required to monitor staff health and exposure to significant hazards where a 'minimisation' method of hazard management is adopted. They must also notify the Department of Labour when occupationally-induced lead poisoning is identified in any of their employees.
The Act also requires a principal (who appoints a contractor) to take all practicable steps to ensure that the contractor is not harmed by hazards associated with the contracted work. As a competent contractor should be well aware of the hazard of lead-based paint, the duty of the principal is largely to ensure they select a contractor who is aware of the hazard, and capable of managing it effectively.
Where a property is managed on a commercial basis, the Act will also apply. It requires the person who controls a place of work (including plant in the place of work) to ensure occupants and others are not harmed by hazards arising from their management of the property. Although a domestic property may not normally be considered a place of work, it would be during those periods when contractors are active on site.
Although the Act does not apply to occupiers who do or engage contractors whose work falls under the definition of 'residential work', it does however apply to the contractors working in a domestic situation as they will be either an employer, principal, employee, a self-employed person or a person who controls a place of work. As such they have duties under the Act.
Lead poisoning is a 'serious harm' illness of occupation and is notifiable under section 25 of the Act. Occupational health professionals may notify the Department of Labour where occupationally induced lead poisoning is identified or suspected (under the Notifiable Occupational Disease System [NODS]).
3.2 Health Act 1956
The Health Act 1956 is the prime statute controlling health hazards to the public at large. It identifies lead poisoning by absorption equal to or in excess of 0.48 μmol/l from non-occupational sources as a notifiable disease (Section B of Schedule 2), which must be reported by a medical practitioner to the medical officer of health. The health protection officer or environmental health officer may inform occupants of the premises concerned of the precautions to be taken.
Under the Act, environmental health officers or medical officers of health may issue Cleansing Orders (section 41) or Closing Orders (sections 42 and 44) on a dwelling that is unsanitary or likely to cause injury to any occupier. These sections could be applied to lead-contaminated properties.
3.3 Building Act 2004
The Building Act specifies design and performance criteria for new buildings, and regulates building work through a consent system for all buildings. Although paint removal falls within the definition of building work, a building consent would not normally be required.
The Building Act is administered by local authorities.
3.4 Residential Tenancies Act 1986
The Residential Tenancies Act 1986 provides for tenant health protection by requiring a landlord to:
- provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises
- comply with all requirements in respect of buildings, health and safety under any enactments that apply to the premises.
Landlords are thus required to protect occupants and others from (among other things) lead contamination arising from paintwork in the tenant's property or its fixtures and fittings. However, this would not apply to the tenant's own painted furnishings.
3.5 Resource Management Act 1991
The Resource Management Act 1991 is the main controlling statute dealing with the sustainable management of natural and physical resources, and includes the management of environmental contaminants. The Act prohibits the discharge of any contaminant to land or water. Commercial activities may not discharge contaminants into the air. For example, a resource consent may be required for the removal of paint by abrasive blasting contractors given the significant emission of dust and particulates to the atmosphere and surrounding environment, or a regional plan may prohibit such activities in a residential area.
3.6 Hazardous Substances and New Organisms Act 1996
The Hazardous Substances and New Organisms Act (HSNO) and its associated regulations places controls on the import, manufacture or use (including disposal) of chemicals that have hazardous properties. This includes house paint or industrial paint containing lead. The Act requires lead-containing paint (manufactured or imported after 2006) to be labelled with warning and hazard information. The labelling required will depend on the chemical form in which the lead is present in the paint and the amount present.
Hazardous Substances and New Organisms Act 1996 - Group Standards for Surface and Coatings and Colourants
Under the Group Standards for Surface and Coatings and Colourants, any substance permitted that is intended for use as a paint must comply with the restrictions as set out in the Australian Uniform Paint Standard, as per Appendix 1 of the Standard for the Uniform Scheduling of Drugs and Poisons (SUSDP) No. 20. The SUSDP prohibits the manufacture, sale, supply or use of any paint with a lead content greater than 0.1 percent and 0.2 percent (percentage based on the non-volatile content of the paint) for lead and lead compounds and lead and lead compounds occurring as an impurity in zinc-based paint, respectively. The restrictions on application apply to: (1) a roof or for any surface to be used for the collection or storage of potable water; or (2) furniture; (3) any fence, wall, post, gate, building (interior or exterior), bridge, pylon, pipeline, storage tank or any similar structure; or (4) any premises, equipment or utensils used for the manufacture, processing, preparation, packing or serving of products intended for human or animal consumption. Also, under SUSDP it is prohibited to manufacture, sell, supply or use a paint for the application to toys unless the paint complies with the specification for coating materials contained in Part 3 of the Australian Standard 1647 for Children's Toys (Safety Requirements).
3.7 Real estate purchase agreements
The contractual agreement governing the sale and purchase of domestic property would normally require the vendor to inform the purchaser of any outstanding statutory notices served on the property. This would include Closing Orders and Cleansing Orders served under the Health Act 1956 to remedy a lead-based paint risk.