Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

I rise today to speak on the Work Health and Safety Bill. This bill seeks to implement a harmonised system of work health and safety measures across the Commonwealth to ensure that regulations and codes of practice are similar in each jurisdiction. The importance of harmonised OH&S laws has long been recognised as a critical area of regulatory reform and, indeed, it should be acknowledged that the process of harmonisation of Australia's numerous OH&S laws was commenced by the Howard government in 2006. In February 2008, the Workplace Relations Ministers Council agreed that the use of model legislation is the most effective way to achieve harmonisation of OH&S laws. The Commonwealth and each of the states and territories subsequently signed the intergovernmental agreement for regulatory and operational reform in OH&S at a meeting of COAG, which committed jurisdictions to implement the model laws by December 2011. The model bill is intended to be mirrored in all jurisdictions. Separate bills will be introduced into each jurisdiction's parliament to give effect to the model bill.

The coalition is supportive of the intent of the legislation because we agree with the principles of harmonisation. However, we have some concerns about this legislation, and I would like to touch on these now. Our concerns lie with the removal of the control test and the removal of the right to remain silent, along with the regulations. I will address the latter first—the removal of the right to silence and protection from self-incrimination. Prosecution under OH&S laws are criminal matters. Under normal criminal law, everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to an investigator—the police—unless the investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and the rule of law. It stops abuse of power. Protection against self-incrimination is currently available under OH&S laws in New South Wales, Queensland, South Australia and Victoria. The model OH&S laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but also to all managers and workers in workplaces. It will grant powers to OH&S inspectors that are not even available to the police. I will be putting forward an amendment to the Work Health and Safety Bill to remove this provision.

The other area that the coalition has concerns with is the failure to include the term 'control' in identification of duties of care. The modern principles of OH&S were first created in the UK in 1972 under the Robens review. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control. These are internationally accepted benchmarks embedded in International Labour Organisation conventions, to which Australia became a signatory in 2004. ILO convention 155, article 16, states:

Employers shall be required to ensure that so far as is reasonably practicable the workplaces, machinery, equipment and process under their control are safe and without risk to health.

The national review into OH&S laws, reported on 1 October 2008, stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care. Recommendation 8 called for the removal of the word control from the definition of reasonable and practicable. This is implemented in the national model OH&S laws.

The model laws also introduce a new and untested legal concept of connecting duties of care to a person conducting business or undertaking. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known OH&S principles in all Australian jurisdictions, except New South Wales. Further, it removes a key element of the ILO OH&S conventions to which Australia is a signatory and creates a legal vacuum due to unknown application and interpretation of duties of care under a new concept. It is reasonable to expect that with the removal of the word 'control' legal uncertainty will occur and will require many, many years of judicial testing before clarity is achieved. OH&S legislation must not just operate with legal clarity; the wording of the act must give unambiguous signals in clear layperson's language to everyone involved in a workplace. People understand in a practical sense that if they control something, or even share control, they are responsible. With the word control removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objectives of achieving safe workplaces. There is another issue that I would like to touch on regarding these bills—an issue that I have a great interest in—and that is the issue of training. Training in occupational health and safety is always an important issue. At this time of transition to new arrangements, the availability of courses is vital, but unfortunately the availability of accredited courses has been reduced by 26 per cent since restrictive changes were introduced by the Safety, Rehabilitation and Compensation Commission in 2010. In order to facilitate transition and ensure the availability of training courses, I will put forward an amendment to the transitional and consequential amendments bill enabling the continuance of courses accredited in 2006-07. Currently the change made supports union training at the expense of private providers, with no beneficial outcomes.

I am a bit confused today because if you believe what the Prime Minister says then this piece of legislation has already been introduced and passed. In the leaders' debate in the election, when asked what her biggest achievement was, the Prime Minister said:

Perhaps less transparent to the Australian people: getting new occupational health and safety laws. Laws around the country. Businesses have been complaining for 30 years that they have different obligations in different states and at the same time not every individual worker had the same safety standards. Now, I have delivered that.

That is what the Prime Minister said in her year of decision and delivery. It is another example of the misunderstanding by this government of the fact that you may announce that you have started a process, may be involved in a process or may even have great interest in the process, but you have not actually achieved the outcome that you seek until you have done the hard work.

So the laws passed previously were not unanimous. The Prime Minister did not in fact oversee harmonised OH&S legislation, as New South Wales Labor and the Greens refused to play ball and sought to modify the legislation in the upper house. So the Prime Minister should blame her own side in New South Wales for the changes to the model bill. However, I believe she has been fairly silent on the topic, oddly enough. In essence this means that a business in my home town of Albury would have to apply a different set of laws from a business just across the river in Wodonga in Victoria.

The coalition recognises—of course we do—that the harmonisation of OH&S legislation, in line with COAG's national reform agenda, intends to reduce the regulatory burden on business and provides for a more consistent approach across jurisdictions. We will not oppose the bill, but we urge the government, the minor parties and the Independents to consider our amendments which will be moved shortly, which seek to very much improve this legislation.

There is one area that I do want to comment on, coming from the coalition senators' dissenting report on the Work Health and Safety Bill, and that concerns voluntary organisations. There would not be a member of this House or of the other place that has not spoken about the valuable work that voluntary organisations do in their electorate or their state. The volunteers that we come into contact with on a day-to-day basis inspire us, amaze us and need as much recognition and support as they can get. I agree with the coalition senators who found it very disturbing that there is still no clarification on the extent to which, or how, the Work Health and Safety Bill will apply to these voluntary organisations. It is absolutely vital that they have this certainty as they go about their important work. So the coalition senators recommended that the federal government provide clarity as to the impact of the Work Health and Safety Bill on voluntary organisations.

The last thing we want to do with our local voluntary organisations who help, whether with fire, flood, roadside stops on 'take a break driver' days, your school P&C, cooking or helping out at a show—the range is amazing—is to scare them away from doing the things that the community desperately needs them to do. Already they are struggling under incredible regulation—a jar of jam with every single tiny ingredient listed, with food-handling ticks in boxes and with paperwork to back it up, or people having questions that need to be answered about processes. On and on and on it goes. That frustration is incredible. Imagine the doubt, fear and concern that will be in the minds of the people who join these voluntary organisations that somehow they would be held responsible for accidents or incidents that happen in a workplace, would be considered to be in control of something where they clearly have no control and would be persecuted as a result. That is going to be another reason why they might choose not to join, not to help and not to provide their support in their local communities. I do seek some clarity on the issue as it applies to voluntary organisations, and I look forward to coalition amendments later in the day.

Bert Van Manen (Forde, Liberal Party) Share this | Link to this | Hansard source

Work health and safety is a very important issue, and all in this House are agreed on that matter. The Work Health and Safety Bill 2011 seeks to implement the model Work Health and Safety Bill within the Commonwealth jurisdiction and will form part of a system of nationally harmonised occupational health and safety laws. We in the opposition will not oppose this bill; however, we will move some amendments, as the member for Farrer has just outlined, designed to broaden the options for training, to improve protections against self-incrimination and to improve clarity of operation through the inclusion of the term 'control'.

We support the principle of harmonisation. The importance of harmonised occupational health and safety laws has long been recognised as a critical area of regulatory simplification, and indeed the process of harmonisation was commenced by the Howard government. The Commonwealth and each of the states and territories signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, which commits the jurisdictions involved to implementing the model laws by December 2011, following the Workplace Relations Ministers Council meeting in February 2008, which agreed that the use of model legislation was the most effective way to achieve the harmonisation of OH&S laws. The model bill is intended to be 'mirrored' in all jurisdictions, with separate enabling bills to be introduced into each jurisdiction's parliament to give effect to the model bill. As I noted earlier, there are some concerns about this harmonisation. These concerns relate to the removal of the control test, the removal of the right to remain silent and the provision of training. We do note that the bill has undergone several rounds of scrutiny and has been agreed to by most state governments, but not by Western Australia. It should be noted the New South Wales version diverts significantly from that which was agreed, thanks to New South Wales Labor and the Greens.

OH&S training is always an extremely important issue and at this time of transition to these new arrangements the availability of courses is vital. The reality is that, since the Safety Rehabilitation and Compensation Commission introduced restrictive changes in 2010, the availability of accredited courses has been reduced by some 26 per cent. In order to facilitate transition and to ensure the availability of training courses, we will be seeking an amendment that will allow continuance of courses accredited in 2006-07, thereby allowing private training providers to provide the necessary training services and not to be excluded from the process, to the benefit of union training, for no identifiable beneficial outcome.

The bill states that any prosecutions under OH&S laws will be criminal matters. In our legal system and under normal criminal law, everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to an investigator unless the investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and rule of law. It stops abuses of power. The current OH&S legislation in Queensland, New South Wales, South Australia and Victoria all contain this protection against self-incrimination. This new national legislation should contain the best provisions of the current laws, not the worst. The model OH&S laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but also to all managers and workers in workplaces. As a consequence, OH&S inspectors will gain powers that are not even available to the police.

Another aspect of this legislation that engenders concern is the exclusion of the word 'control' in identification of duties of care. The modern principles of OH&S safety were first created in the UK in 1972 and these principles hold that responsibility for safety is allocated to what is reasonable and practicable to control. These benchmarks are internationally accepted and are embedded in International Labour Organisation conventions to which Australia became a signatory in 2004. ILO Convention No. 155, article 16, states:

1. Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.

The national review into OH&S laws, in the report on 1 October 2008, stated that there was much dissent in the submissions over the inclusion of the word 'control' in the duties of care. In fact, recommendation 8 called for removal of the word 'control' from the definition of reasonable and practicable. This has now been included in the national model OH&S laws covered in this bill.

The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known and accepted OH&S principles in all Australian jurisdictions except New South Wales. It also results in the removal of a key element of the International Labour Organisation OH&S conventions to which Australia is a signatory and creates a legal vacuum due to unknown application and interpretation of duties of care under a new concept. As the member for Farrer rightly pointed out, this may well lead to many years of legal wrangling to determine what the final outcome will be. It is reasonable to expect that, with the removal of the word 'control', legal uncertainty will occur and, as I have just noted, will require many years of judicial testing before clarity is achieved.

OH&S legislation must not just operate with legal clarity. The wording of the act must give unambiguous signals in clear, lay language to every person involved in workplaces. All concerned understand in a practical sense that if they control something, or even share control, they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces and starts to reduce some of the beneficial impacts of the move to a national set of OH&S laws, which in its intent is admirable as it will reduce costs to business and consequently provide benefits to both business owners and the employees.

We will always support moves to simplify regulation and make it more cost effective for businesses to go about their day-to-day activities. We are also very mindful of the fact, as I noted at the outset, that the safety and protection of employees whilst they are at their workplaces is of paramount importance.

Andrew Leigh (Fraser, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in the debate on the Work Health and Safety Bill 2011. Five workers die aboard an unseaworthy vessel in the Torres Strait. Six motorcycles used for work are found to be unroadworthy in the Northern Territory. Camp food containing peanuts is fed to a camp attendee with a severe peanut allergy in Victoria. Two members of the public die on a rail access road and bridge in South Australia. The thing that each of these situations has in common: they are all part of the Commonwealth's health and safety jurisdiction—the Department of Immigration and Citizenship, Australia Post, the Department of Defence and the Australian Rail Track Corporation, respectively.

It is far too easy to cast the Commonwealth health and safety jurisdiction as one populated by Canberra public servants working at their desks day in, day out. But the truth of the matter is that there are a diverse range of jobs undertaken by Commonwealth public servants and in the Commonwealth's health and safety jurisdiction. The Commonwealth jurisdiction is unusual. It is not geographic. Commonwealth public servants perform important work all across Australia. They perform their work, in many cases, side by side with people covered by state and territory health and safety laws. The way that Australia's health and safety laws operate now makes things confusing for workers and for businesses. What laws apply when? Who is covered? Who is owed an obligation?

The Gillard government is moving towards a harmonised system of health and safety legislation and regulation to remove the duplication and confusion that exist when there are 10 separate pieces of health and safety legislation. (Quorum formed) I seek leave to continue my remarks later.

Leave granted; debate adjourned.