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Thursday, 25 August 2011
Page: 9433

Mr VAN MANEN (Forde) (13:12): 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.