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Thursday, 24 November 2011
Page: 9557


Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (16:24): by leave—I move opposition amendments (1) to (4) on sheet 7154 together:

(1)   Clause 19, page 23 (line 3), after “undertaking”, insert “who has control over the matter”.

(2)   Clause 19, page 23 (line 9), after “undertaking”, insert “who has control over the matter”.

(3)   Clause 19, page 24 (line 7), after “as”, insert “he or she has control over the premises and it”.

(4)   Clause 19, page 24 (line 8), after “practicable”, insert “to do so”.

The primary duty of care is, from the coalition's point of view, an important issue that needs to be considered. We believe that the modern principles of occupational health and safety were first created in the United Kingdom in 1972 under the Robens review. The principles of that review hold that responsibility for safety is allocated to what is reasonable and practicable to control. That is a very important test, from the coalition's point of view. That is the control test.

That benchmark of 'reasonable and practicable to control' is in fact also embodied in the International Labour Organisation conventions to which Australia became a signatory in 2004 under the Howard government. ILO Convention 155 states in article 16 that:

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.

We believe that that word 'control' is a very important component of any sensible legislation.

As I indicated, this had its genesis nearly 40 years ago in the United Kingdom. I understand that there was also a Victorian review after the Robens review in the United Kingdom and that the state of Victoria came to a similar conclusion. The national review into the occupational health and safety laws in its report of 1 October 2008 stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care and then recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is implemented now in the national model OHS laws. It is to be remembered that during this time—I do not want to get into it too much—we did have wall-to-wall Labor governments and it was agreed at that time by all of the Labor governments that that should be the case.

The coalition cannot understand changing the law to get a new test which is untried. The existing test originated in the United Kingdom some 40 years ago and was put into an International Labour Organisation convention only some seven years ago. The test that had been implemented about 30 years earlier and had attracted the attention of the International Labour Organisation was deemed by that organisation to be a good and proper test. Why we would seek to take out of the Australian law a provision which has been well established for some 40 years is something that I confess the coalition cannot quite understand, other than perhaps because certain pressure was brought to bear on the government—all governments at the time being Labor—courtesy of elements of the trade union leadership.

The model laws introduce a new and untested legal concept of connecting duties of care to a person conducting a business or undertaking. At a later stage the Parliamentary Secretary for School Education and Workplace Relations might be able to give us some clarity on how that applies to the volunteer sector, as well. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but also is a major shift away from known occupational health and safety principles in all Australian jurisdictions except New South Wales. Further, it removes a key element of the ILO convention 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 many years of judicial testing will be required before clarity is achieved.

One of the aims of harmonisation was to get a simpler regime—a regime that was clear; that had legal clarity. The coalition believes the wording of the act must give unambiguous signals in clear, lay language to every person involved in workplaces. People must 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 safer workplaces. I commend the amendments to the committee.