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Wednesday, 12 October 2011
Page: 11667


Mr McCORMACK (Riverina) (18:11): I find myself in furious agreement with the member for Shortland when she says that the government should take more time on some of its legislation. Indeed the government should. It is a shame that the government did not take more time and put the clean energy bills to an election rather than put them through this parliament now—although it was not their idea to do so but the Greens', to whom the government is beholden.

Unions, to whom this government is also beholden, have warned that the lives of miners are being put at risk by this government, and the states are rushing through thousands of pages of new safety regulations without adequate consultation. The General Secretary of the Construction, Forestry, Mining and Energy Union's mining division, Andrew Vickers, said:

… national standards had been due for completion in February and were then to be open for public comment for six months before a start date of January next year.

He is quite concerned. He went on to say:

… incomplete and previously unseen codes were not released for public comment until—

July—

with the consultation period cut to eight weeks to meet the January deadline.

He continued:

… the union was concerned about a number of the proposals, including reductions in air and methane monitoring, inadequate provisions for escape routes, the banning of breathing apparatus, and a lack of provision for ventilation officers.

In Mr Vickers's own words:

"Mine safety laws have evolved over 100 years in this country, more often than not based on the hard and tragic lessons learned from mining disasters, and we currently have some of the best safety regulations in the world,"

That comes from the union, and I recommend to Labor that on this occasion they listen to the union and to the member for Wannon, who in his contribution questioned why the government was rushing this legislation through.

It is imperative that there be harmonised occupational health and safety laws. This has long been recognised as an essential area of regulatory reform, and this process was started by the Howard government. In February 2008, the Workplace Relations Ministers Council agreed that the use of model legislation is the most effective way to achieve harmonisation of OHS laws. The Commonwealth and each of the states and territories subsequently signed the Intergovernmental Agreement for Regulatory and Operational Reform in OHS, which dedicates jurisdictions to implement the model laws by December this year. The model bill is intended to be replicated in all jurisdictions, and separate bills will be introduced into the parliament of each jurisdiction to bring about the model bill.

The coalition holds some justified concerns about this legislation. There is genuine concern about the removal of the control test and the removal of the right to remain silent along with the regulations. This side recognises 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 intergovernmental agreement expresses the agreement of each jurisdiction to enact, or otherwise give effect to, their own laws which mirror the model laws as far as possible by the end of 2011. This is a worthwhile objective; however, now there is considerable concern about the time frame.

The model Work Health and Safety Act which underpins the Commonwealth Work Health and Safety Bill was brought about by the National OHS Review conducted over the period April 2008 to January 2009. The review involved consultations with a broad range of stakeholders, including academics, employer organisations, health and safety professionals, industry representatives, legal professionals, regulators and unions. A total of 243 submissions were received in response to an issues paper released in May 2008. The review panel completed its work with the submission of its second report to the Workplace Relations Ministers Council in January 2009. The review panel made 232 recommendations to which the council responded in May 2009. The council's responses to recommendations made by the review panel formed the basis for the model act.

The model act itself is the subject of wide consultation. The model act was developed by Safe Work Australia in conjunction with all Safe Work Australia members. Safe Work Australia released an exposure draft of the model act for public comment in September 2009, and 480 submissions were received. After incorporating many amendments put forward after consideration by Safe Work Australia, input from the Parliamentary Counsel's Committee and the public consultation process, the Workplace Relations Ministers Council in December 2009 endorsed the amended model act which became the agreed model act.

But, if you go along with what the Prime Minister says, this piece of legislation has already been introduced and passed. In the leaders' debate in the 2010 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.

She continued:

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. And what I think that shows is if you believe in something passionately, then you will work through.

So the Prime Minister did it all—signed, sealed and delivered.

We also know, however, that this great, mighty feat that the Prime Minister achieved, for which she was so quick to take credit, was in fact started by the coalition. The harmonisation of the nation's numerous occupational health and safety regulations was started by the Howard-Vaile Liberal-National coalition government in October 2006. The coalition said at the time:

The lack of consistency between the safety laws in each state has led to significant compliance costs on employers who engage people in more than one jurisdiction. The arguments for harmonisation appear compelling to many.

It is disappointing that the government has sought to bring on this legislation for debate when the regulations are yet to be finalised. The coalition believes that in fairness to all sides of the chamber the government should have provided a copy of the final regulations and final regulatory impact statements much earlier.

There are many issues of concern with the Work Health Safety Bill 2011. Training in occupational health and safety is paramount. At this time of transition to new arrangements, the availability of courses is critical. 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 smooth the way for transition and ensure the availability of training courses, the coalition will put forward an amendment to the transitional and consequential bill, enabling the continuance of courses accredited in 2006-07. The change made supports union training at the expense of a private provider, with no beneficial outcomes.

The removal of the right to silence and protection from self-incrimination is a concern. Under normal criminal law, everyone has the right to silence and protection from self-incrimination. In other words, 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 the law. It stops an abuse of power. Protection against self-incrimination is currently available under OHS laws in New South Wales, Queensland, South Australia and Victoria. The model OHS laws rip 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 give powers to OHS inspectors not available to the police. An amendment to the Work Health and Safety Bill will remove this provision.

There is a failure to include the term 'control' in identification of duties of care. The modern principles of occupational health and safety had their genesis in the United Kingdom in 1972 under the Robens review. In 1972 a British government committee of inquiry into health and safety at work, chaired by Lord Alfred Robens, released a groundbreaking report calling for a fresh approach to the regulation of occupational health and safety. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control. These are the internationally acceptable 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 processes under their control are safe and without risk to health.

The National Review into Model OHS 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 deletion of the word 'control' from the definition of reasonable and practicable. This is implemented in the national model OHS laws.

The model laws also introduce a new and untested legal provision of attaching duties of care to a person conducting a business or undertaking. Taking out the word 'control' not only creates confusion over just who is responsible for what in work safety, but is also a massive shift away from known OHS principles in all Australian jurisdictions except New South Wales. Also it removes a key element of the ILO OHS conventions to which Australia is a signatory and creates a legal vacuum due to unknown application in the interpretation of duties of care under a new concept.

It is reasonable to expect that by removing the word 'control' legal uncertainty will occur and will require many years of judicial testing before clarity is accomplished. OHS legislation must not just operate with legal clarity; the wording of the act must give unambiguous signals in clear, everyday, easy-to-understand language to every person involved in workplaces. People understand in a practical sense that if they control something, or even insomuch as they have joint control, they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is reduced and becomes confused. This works against the aim of producing safe workplaces.

The Greens intend to put forward some amendments similar to what we have seen in New South Wales in relation to unions' right to prosecute. The coalition agrees with the Master Builders Association which 'strongly rejects union right of prosecution. The authority to prosecute and begin criminal proceedings should rest solely with the state'. The Master Builders Association rightly pointed out in its submission to the Senate committee:

A prosecutor represents all members of the community and cannot, therefore, act as if representing private or factional interests. Unions, by their very nature, represent the interests of employees and therefore cannot represent the entire community. To empower them with the ability to prosecute is akin to empowering employers with the ability to prosecute employees for a breach of health and safety, an issue that would be viewed as inappropriate by the community.

In addition, the expert review panel considered and made recommendations in this area. The review panel identified three major concerns with private prosecutions: one, there are serious practical difficulties, such as a lack of resources, which may undermine the evidence base; two, private prosecutions are not subject to the same safeguards as prosecutions brought by the state, such as application of prosecution policies, review of decisions and other public sector accountability measures; and, three, private prosecutions can disrupt other enforcement activities, such as enforceable undertakings or other measures that the regulator considers as more appropriate or proportionate in the circumstances of a particular case.

That begs the question: were the same public servants with tears in their eyes, to whom the Prime Minister referred, equally as upset to see John Robertson's Labor Party vote with the Greens to change the model legislation in New South Wales? Further, it was New South Wales Labor which helped the Greens to stop the Prime Minister's nationally harmonised laws. Thanks to New South Wales Labor, the laws will not be harmonised amongst states which are signed up. New South Wales Labor was rightly jettisoned at the 26 March state election after 16 years of the worst government this country has been forced to endure—fast being matched by Gillard federal Labor, which governs at the behest of the Greens and the whim of three Independents.

The coalition is deeply concerned about the January deadline. With people around Australia needing to learn about the new laws and regulations before they come into effect, it is outrageous to implement these laws from 1 January not having had the regulations signed off as yet in October. The government needs to ensure that employees and employers around Australia have a reasonable amount of time to get accustomed and to transition—that word we hear so often used by those opposite—to the new laws. What we do not want to see is the final regulations and codes of practice being released in November with small business, the engine room of the economy, being expected to know every intricacy before 1 January. We so often hear the government talking about evidence based policy, but the reality is that the Access Economics regulatory impact statement that those opposite are referring to is now so far out of date it is not funny. The consultation regulatory impact statement does not take into account the final regulations.

The coalition will put forward some common-sense amendments. The regulations will be determinative of the benefit of this change. Model regulations were circulated and are exceptionally restrictive. The final regulations have not yet been released and nor has the regulatory impact statement. The decision regulatory impact statement which is currently doing the rounds offers some very real areas of concern. I note that in answers from Senate estimates to the shadow minister for employment and workplace relations, Senator Eric Abetz, the department could not clearly say that the harmonisation will be achieving the clear goals laid out from the outset.