This month, the Australian Competition and Consumer Commission issued three recall notices following the detection of asbestos in imported coloured and decorated sand products used by children for play and craft activities. These products have been sold by major retailers including Kmart and Officeworks throughout Australia between 2020 and 2025.1
The presence of asbestos in any product used by children will understandably cause concern, noting that the current government guidance is that risk is low.2 While school and early learning centres (ELCs) are focused on the operational response, it is equally important that they take steps now to ensure comprehensive, well-maintained records. Asbestos-related claims typically arise many years — even decades — after initial exposure. Without adequate documentation, it may be difficult in the future to ascertain the level and nature of potential exposure as well as whether reasonable steps were implemented to address risk at the time the risk was identified.
A dual focus is therefore essential:
- Immediate safety and remediation, and
- Long-term, reliable record-keeping to protect the organisation, staff, and students into the future.
What we know so far about the potential asbestos contamination
The response has varied across states as regulators and agencies respond to the recall. Schools in the ACT, Tasmania and Brisbane have closed for disposal and deep cleaning. In Victoria, the Department of Education has responded but has not indicated any plans for school closures. The Australian Department of Health, Disability and Ageing has issued interim advice in response to the recall immediately advising consumers to:
“Stop using affected products, follow recall instructions, and await further advice. Current risk is low; no clinical checks needed.”3
For the workplace and school environment, Asbestos in Victoria and WorkSafe Victoria have also provided information here.
What is the legal risk?
This recall identifies occupational, health and safety, and duty of care risks.
Taking a conservative approach, schools and ELCs should treat the recall notice as an alert to the potential for a reasonably foreseeable risk of harm requiring a risk response in line with the school’s own risk management framework and risk assessment process.
This means that schools and ELCs must act to eliminate or reduce the risk as far as possible in the workplace and learning environment.
Managing the risk response
In managing any response, schools and ELCs have a primary duty to ensure the safety of students, educators, and families by removing affected products from use and following health authority advice.
Once these immediate risks have been addressed, it is crucial not to overlook the long-term implications. While health authorities assess the risk as low, it is appropriate to collate and preserve any documentation that could assist to respond to possible future questions, reviews, or claims.
The following are some of the steps can support documenting any risk management response (in addition to immediate safety and remedial action):
- document the recall on the school/ELC risk register
- assess and record the level of use in the workplace and school or ELC environment (see: What should you document now?)
- report on the school/ELC’s response to relevant management and governance committees within the school
- communicate with the school community –parent notifications about the school’s response will ameliorate any reputational risk or perceived shortcomings in your response. Transparency, clear communication with parents, and proactive safety measures will be crucial in maintaining community trust.
What should you document now?
Moores recommends that schools and ELCs collate and keep the following (if and to the extent that this information is available) for any coloured or kinetic sand products currently or recently in use:
Product documentation
- Photographs of the product and packaging where it is safe to do so, including packaging, labels, safety instructions, batch numbers, barcodes and product names.
- Purchase Information including date of purchase and supplier – this may be on invoices, receipts or purchase orders.
- Any correspondence with suppliers regarding product safety or recall notifications.
Action documentation
- A clear timeline of risk management actions taken by the school or ELC.
- Teacher and staff training on how to handle or identify products that could potentially be contaminated, even after the initial recall.
- Remediation and disposal records.
People and situational documentation
- Teacher statements to capture first hand recollections of when and how the product was used in the educational environment.
- Records of where the produce was used in the educational environment, including a sketch map if appropriate.
- Lists of who may have may been present in rooms during the period in which the product was used, including students, staff, volunteers and visitors.
What about retention of records?
Schools and ELCs should retain related records in line with:
- retention periods under the Occupational Health and Safety Act 2004 (Vic) for near misses and notifiable incidents (i.e. at least 5 years after the serious near miss or incident occurs);
- retention periods having regard to the limitation periods for personal injury claims, noting that students can bring a claim once they are of mature age; and
- the organisation’s own records management and retention policy and schedules.
Stay informed
Given the recall, ELCs and schools must act quickly to protect the health and safety of students and staff, and to keep their communities informed. At the same time, it is critical to establish a comprehensive documentation process that ensures you are well prepared should any claims arise in future.
Moores will continue to keep the sector informed. You can stay updated by subscribing to receive updates on this issue.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.