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Thursday, 25 August 2011
Page: 9430


Ms LEY (Farrer) (13:01): 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.