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Wednesday, 12 October 2011
Page: 11662


Mr TEHAN (Wannon) (17:41): I rise tonight to speak on this bill and I must say that I am a little bit confused because, if you believe what our Prime Minister has had to say, this bill has already been signed, sealed and delivered and has already been enacted. As a matter of fact, it is ironic that I am standing in the parliament tonight talking about this bill because it reminds me of something else which was said before the last election, which we dealt with today, in the most shameful and deceitful manner. Something was ruled out directly before an election and then, only 14 months later, we have legislation in this place which is completely contrary to what the Prime Minister said.

I would like to place on the record for all to be able to see what the Prime Minister did say before the last election about these OH&S laws:

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.

Thirty years—on the day we delivered it there were some public servants that had tears in their eyes because they spent all their working life waiting for someone to deliver that reform. Wasn't easy, but I got it done.

Yet here we are in October 2011 and we are still debating this bill. So sadly it seems as if the Prime Minister saying that she got it all done—signed, sealed and delivered—will go down in history along the lines of 'there will be no carbon tax under a government I lead'. Anyway, enough of people saying one thing before an election and another afterwards. I think ultimately the Australian people will have their say on whether they think that is the way political parties should go about governing or not at the next election, and we can leave it up to them.

The harmonisation of the nation's numerous OH&S laws was started by the Howard government in October 2006. I would like to place on the record the very constructive way the coalition has dealt with the harmonisation of OH&S laws. Sadly, when we went to nationalise OH&S laws in 2006 and in 2007 those opposite were not as supportive of our efforts as they were once they got into government, which is very disappointing. It was the coalition who very much started this process in 2006, and it has been recognised on our side as an important regulatory reform. I think we would all agree that nationalising OH&S laws between states and taking a national approach can cut down the regulatory burden on businesses, especially those businesses who have operations between states like those who might have businesses which are operating in Victoria and New South Wales. You could get the very silly situation, especially if you looked at a place like Albury-Wodonga, where you had a business on one side of the Murray River operating on OH&S laws completely different from those operating on the other. So this model bill is intended to be mirrored in all jurisdictions, and I think that is something that is welcomed by all sides of this parliament. There are separate bills that will be introduced into each jurisdiction's parliament to give effect to that model bill.

The coalition does have some concerns about this legislation. Those concerns lie with the removal of the control test and the removal of the right to remain silent along with the regulations. We recognise that it is important that this bill be viewed in the context of the harmonisation of occupational health and safety laws being conducted under the auspices of the Council of Australian Governments. The IGA also expresses the commitment of each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible by the end of 2011. That is something else which I think we need to address, because it is now October and we are still debating this bill. It is something which, as I said previously, the Prime Minister told the Australian public should have been enacted before the last election. The laws will come into place on 1 January 2012. Without us having seen the regulations, this is going to provide a lot of difficulties for business, particularly small businesses, because they need the necessary time to read the regulations in great detail to make sure they can comply with them. Sadly, under this government there is a real concern amongst business as to how strictly those compliance costs will be enforced as a potential way for unions to get onto work sites. That is something the regulations, hopefully, will deal with.

The model work health and safety act which underpins the Commonwealth Work Health and Safety Bill was informed by the national OHS review. The review was conducted over the period of April 2008 to January 2009. The review conducted extensive consultations with a broad range of stakeholders, including regulators, unions, employer organisations, industry representatives, legal professionals, academics and health and safety professionals. It received 243 submissions in response to an issue paper released in May 2008. The review panel completed its work with the submission of its second report in January 2009. The review panel made 232 recommendations, and those were responded to in May 2009. The responses to recommendations made by the review panel formed the basis for the model act. The model act itself was the subject of extensive consultation and was developed by Safe Work Australia with the involvement of all Safe Work Australia members. In September 2009, Safe Work Australia released an exposure draft of the model act for public comment and 480 submissions were received. In December 2009, after incorporating a number of amendments proposed as a result of consideration by Safe Work Australia, input from the parliamentary council's committee and the public consultation process, the approach was endorsed and the amended model act became the agreed model act.

I would like to express in a little bit more detail some of the coalition's concerns, especially when it comes to what may or may not be in the regulations. Training in occupational health and safety is always an important issue and something that on this side of the House we have always stressed. At this time of transition to new arrangements the availability of courses is vital. 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 am reasonably confident that the coalition will be putting forward amendments to the transitional and consequential bill enabling the continuation of courses accredited under the 2006 and 2007 arrangements, and I would hope that the government would see this as a very constructive option being put forward and something the government could move to support, because I think this will be an incredibly important amendment. I do not think anyone on the other side could say that training is not vital, in particular when it comes to OHS training, given the consequences that we can see on the workplace floor if proper training has not been put in place.

So that issue of training is one thing we in the coalition would like to see addressed. We would also like to see the removal of the language regarding the right to silence and protection from self-incrimination. Prosecution under OHS 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. I think that all of us in this place would recognise that that is a very important element that we estop this abuse of power. Protection against self-incrimination is currently available under OH&S laws in New South Wales, Queensland, South Australia and Victoria. The majority of the states already have that protection against self-incrimination; therefore, the model OH&S laws take away the right to silence and protection from self-incrimination. These provisions were already embedded in the existing legislation in New South Wales, Queensland, South Australia and Victoria. The amendment which the coalition is putting forward will be consistent with the law in those four jurisdictions, and I hope it is an amendment which the government will see fit to pass.

There is also the failure to include the term 'control' in identification of duties of care. The modern principles of OH&S safety were first created in the UK in 1972 under the Robbins Review. The principle holding the responsibility for safety is allocated according to what is reasonable and practicable to control—and that is an incredibly crucial element. These are the 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 workplace's machinery, equipment and process under their control are safe and without risk to health.' The national review into OH&S laws report of 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 a business or undertaking. 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 OH&S principles in all Australian jurisdictions, except New South Wales. Sadly, what we will see here if this is not rectified is New South Wales Labor coming to Canberra and basically exporting its model across the country. I think we would all agree that that is an incredibly dangerous precedent, because most things that New South Wales Labor ultimately touched became an unmitigated disaster. 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.

I will not go into the amendment of the Greens in too much detail, but the coalition agrees with the Master Builders Association which strongly rejects union right of prosecution. I think we could all agree that all the reasons for this Greens amendment being opposed have been stated pretty clearly.

In conclusion, there are serious issues with the time frame of this bill. It also needs some serious amendments, but otherwise the coalition agrees with the principle. (Time expired)