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Wednesday, 15 May 1985
Page: 2013

Senator MESSNER(5.25) —The National Occupational Health and Safety Commission Bill 1985 seeks to establish a National Occupational Health and Safety Commission whose objectives as stated in the legislation are:

(a) the development among the members of the community of an awareness of issues relevant to occupational health and safety matters and the facilitation of public debate and discussion on such issues;

(b) the provision, in the public interest, of a forum by which representatives of the Government of the Commonwealth, the Governments of the States and of employers and employees may consult together in, and participate in the development and formulation of policies and strategies relating to, occupational health and safety matters; and

(c) the provision of a national focus for activities relating to occupational health and safety matters.

The Liberal and National parties agree that occupational health and safety is a great national issue. We agree with the Minister for Education (Senator Ryan) who, in her second reading speech, stated:

The community's goal-and consequently that of the Government-must be to reduce the unacceptably high national level of occupational death, injury and illness.

We agree that not only is this goal socially desirable but, as the Minister stated, it is a soundly based economic objective as well. The Liberal and National parties also agree with the Interim National Occupational Health and Safety Commission on the desirability of developing consultative machinery at the Federal level and the need for the further examination of Commonwealth-State responsibilities and mechanisms for co-ordination in the implementation of occupational health and safety legislative requirements. However, the Opposition does not agree that the solution in this area lies in the establishment of a statutory commission. The establishment of the Commission is typical of a Labor's government's approach to genuine concerns and problems, that is, when it identifies a problem or concern it sets up a statutory commission-a quango-and pours money into it. The end result of such action is typically to intrude into areas of responsibility not previously the province of the body; to add to the size and cost of government to the taxpayer; to place yet another burden upon those who are already trying to tackle the problem and to achieve very little beyond what can be achieved already. So it is with the establishment of this Commission.

Let us examine a few of those points; firstly, the intrusion into those areas of responsibility. The Opposition has concerns that the Commission sought by this Bill goes beyond legitimate areas of Commonwealth jurisdiction or overlaps into the existing jurisdiction of other bodies. Clause 8 (1) (d) of the Bill blithely gives the Commission the power 'to review laws and awards relating to occupational health and safety matters'. The Opposition sees two particular difficulties in those matters. Firstly, the Bill gives the Commonwealth body the power to review State laws-this is undesirable-and, secondly, it gives power to the Commission to review awards, presumably both State and Federal.

Currently we already have the Australian Conciliation and Arbitration Commission, a battery of State industrial tribunals and special industrial tribunals which are engaged on this work. It is unnecessary and costly duplication to give this new power to a new commission. Whilst it can be argued that the laws and awards that may be reviewed by the new Commission are only those relating to occupational health and safety matters, if one applied a broad interpretation this could apply to almost anything. For instance, it could apply to the hours of work, shifts and the types of work performed. The power granted to the Commission in this respect then is too wide. An identical criticism can be made of clause 8 (1) (e) of the Bill which gives the Commission power, and I quote:

to consider, and to make recommendations in relation to, proposals for the making of laws and awards relating to occupational health and safety matters;

The ambit of that power, again if interpreted liberally, is extraordinarily wide. The Liberal and National parties are concerned that the whole thrust of the functions to be granted to the Commission as set out in clause 8 of the Bill gives it wide power over an enormous area of law making. Such a practice is quite contrary to our established system of having laws made by parliaments and awards made by industrial tribunals. In addition, the provisions of clause 38 relating to national standards and codes of practice have a particularly grave potential for overriding the jurisdiction of the States in occupational health and safety matters. It is true that they are advisory, but only to the extent that they are not provided for by an existing law or award.

A national code of practice on occupational health and safety could be promulgated by the Commission and written into a Commonwealth award, which would then negate any State Act on the same subject if they covered the same field. The Commonwealth award would then take precedence over State legislation for all employees covered by the Federal award. This has the potential to create Commonwealth jurisdiction over all employees covered by Federal awards, regardless of which state they reside in.

As defined by clause 3 of the Bill, the area of occupational health and safety matters is extremely wide and there is almost nothing that it does not concern. It concerns such matters as the physiological and psychological needs and well-being of persons engaged in occupations. Thus, if taken to the limit, a national code could be drawn up by the Commission covering an extremely wide range of matters which would simply override State legislation. The Opposition rejects such an approach and therefore cannot support this Bill.

Several State Labor Governments are currently reviewing their existing occupational health and safety legislation-Victoria, New South Wales, Western Australia and South Australia. The State experiences provide an insight into Labor thinking in this area and a possible blueprint for action by the proposed Commission.

The attempted reforms in Victoria are the most notorious example of excessive and punitive occupational health and safety legislation. Under proposed legislation put forward by the Cain Government prior to the Victorian election in March, union appointed safety representatives would have the power to shut down any business without warning if a representative considered a situation to be potentially unsafe. In that context, I stress the word 'potentially'. That action would result from the opinion of one representative. Employers would face a fine of up to $10,500 and/or five years imprisonment for failing to obey a safety representative's direction. That is the type of legislation that the Victorian employers fear will be made law if the Australian Labor Party finally ends up gaining control of the Legislative Council in Victoria. The Cain Government has further proposed legislation which would give it monopoly control of workers compensation in that State. It would completely exclude private insurers from workers compensation and it is a totally unjust and unwarranted infringement of the right to trade freely in goods and services.

Senator Crowley —What would it do to costs?

Senator MESSNER —Obviously monopolies lead to increased costs. Whilst the Cain Government argues that such a course of action will lead to lower workers compensation premiums-that is its argument-that cannot be argued in the short run, or demonstrated to be so in the longer run.

Senator Crowley —That is nonsense. There are examples that I can quote.

Senator MESSNER —Senator Crowley will have a chance later to put her points on that issue. That is the sort of wide-ranging and damaging legislation that Labor is putting up in Victoria and, as I understand, in South Australia and Western Australia. The fact that this is being done by Labor governments is no accident. The Labor Party is beholden to the trade unions-it is a trade union party-and it is directly implementing union policy on occupational health and safety. The Federal Government has only one constituency to satisfy, and that is the trade union movement. Employers can expect little sympathy from either the Commonwealth or the State Labor Governments in that area. I note that the Confederation of Australian Industry has supported the establishment of the proposed Commission.

Senator Crowley —You do not like that.

The ACTING DEPUTY PRESIDENT (Senator MacGibbon) —Senator Crowley, confine your interjections.

Senator Crowley —I beg your pardon, Mr Acting Deputy President?

The ACTING DEPUTY PRESIDENT —Restrict your interjections.

Senator Crowley —To what?

The ACTING DEPUTY PRESIDENT —Senator Messner is speaking.

Senator MESSNER —Are you querying the Acting Deputy President's ruling?

Senator Crowley —I am just seeking guidance.

Senator MESSNER —The Opposition believes that the Confederation has supported this legislation in the hope that the Commission might be used to restrain State governments from the regulatory excesses to which they tended in the past and which they show signs of increasing. The Liberal and National parties judge that theirs is a faint and a forlorn hope. The fact is that under this proposal, given the Commission's wide powers, the Commonwealth may add to the regulatory excesses faced by employers. If the Commonwealth overrides State laws--

Senator Zakharov —Yes, and it is about time too.

Senator MESSNER —Perhaps if Senator Zakharov had come in a little earlier she would have heard some remarks about that. If the Commonwealth overrides State laws and awards in this area or moves into areas not covered by State laws and awards, it can impose unnecessary and costly laws and awards resulting in duplication. A further point, and a most interesting question to be asked of the Federal Government, is what are the financial impacts relating to this establishment of the new Commission? Where, in fact, can we find a financial impact statement? We are told that it is going to cost some $33m to set this up, but what is the impact on the rest of the community? We were promised these kinds of statements by this Government if it took action in this area, but there is no such statement set down for our benefit that relates to the costs to taxpayers of directly establishing the Commission. The business community, the Confederation of Australian Industry, the Opposition and the Democrats did not receive any statement at all or any assessment of what the costs to the community of this new Commission will be. I believe that at the very least Senator Walsh, with all his credentials as being financially upright, should be able to bring to our benefit some statement as to what he expects the cost of the new Commission to be on the community so that it can be properly assessed.

Senator Crowley —By whom?

Senator MESSNER —Senator Crowley might be able to put some pressure on through the Caucus to obtain that information. Let us examine the size and cost of the effects of this legislation. The Bill seeks to establish a 17-member Commission, whose Chairman will get by-only just, I trust!-on $63,000 a year, and whose projected staff will number 140 by the end of this financial year. It proposes to create a three-headed structure. Under clause 5 of the Bill, the staff of the Commission is organised into two bodies-the National Occupational Health and Safety Office and the National Institute of Occupational Health and Safety. These two bodies will have a tendency to expand themselves and inevitably will ensure that a further two bureaucracies are established along with that of the Commission itself. So, the Government proposes establishing three new bureaucracies. Evidence of this is given in the report of the Interim National Occupational Health and Safety Commission which recommended the course of action that the Government is now taking. That report projected that the Commission's staff level would have more than doubled to 350 by the end of its second year and that the anticipated budget in that year would amount to $42.1m. Presumably, that report is accurate. Further, the budgetary consequences of the Commission carrying out to the full the objects, functions and powers set out in clauses 7, 8 and 9-which would allow it to range far and wide-could be extremely large.

Where is a statement as to the Government's intentions in that respect? We have no financial impact statement upon which we can assess the Government's thinking in this regard. Business cannot assess what the final impact of this legislation might be, because the Government will not reveal the information. One is inclined to interpolate at this point to say how significant it would have been to take action in the mini-Budget last night to reveal the true extra costs of these new Government programs. How much more significant it would have been for the Government to make that kind of statement rather than the very cosmetic statement it made. The Hawke Government, in this new initiative, is continuing with its predilection for establishing statutory authorities or quangos. This Labor Government, in its first nine months in office, created 25 new national government authorities-more than one very fortnight. With the National Occupational Health and Safety Commission, the Government is continuing down that path.

Another point relates to the further burden on existing arrangements. This area of concern relates to the fact that the legislation overlays yet another burden upon those who already are tackling the problems. Those who have organised labour into productive units have seen the logic and the practicality of ensuring safe work practices. We no longer live in the days of child labour in the mines. Australian workers enjoy working conditions equal, if not superior, to those of any other country in the world.

Senator Zakharov —Have you been in a clothing factory lately?

Senator MESSNER —The honourable senator will have an opportunity to put those views. It is often argued by those on the left of the political spectrum that employers by definition are exploitive and have no interest in the health and welfare of their employees, who are regarded as inanimate, expendable and easily replaced factors of production. Such a hypothesis-the Opposition totally opposes any hypothesis of that kind-ignores the development in Australia over many years of the substantial body of common and statute law designed to ensure the fulfilment of our moral and social obligations to each other. It also ignores the workplace consultative arrangements, involving both employees and employers or their representatives, which are currently in operation in so many workplaces throughout Australia. As the Interim Commission has noted:

Many workplaces in Australia have joint health and safety committees sorting out problems and constructing preventative measures on a daily basis.

The National Labour Consultative Committee recently endorsed these arrangements. Indeed, as we know, it is a continuing process throughout the business and manufacturing community. On top of this layer of activity we have the State judiciaries, the State governments and their bureaucracies all busy constructing health and safety guidelines of both a voluntary and a compulsory nature. The Commonwealth, too, has a judiciary, a government and a bureaucracy doing likewise for the benefit of employers and employees within the Territories. Yet the Hawke Labor Government, through this Bill, seeks to add yet another layer to the existing system and to create new bureaucracies. Already there is a National Consultative Committee on Occupational Health and Safety with a very wide membership. If such a body cannot achieve agreement on what should be done, a new Commonwealth commission, with draconian powers, is not going to achieve it. The establishment of the Commission displays a heavy-handed approach by this Government in this most important and very sensitive area. It displays an insensitivity on the Government's part to the achievement of positive and productive processes at the grass roots level in the Australian workplace, where it counts most.

The powers contained in the Bill give the Commission the power to blunder into the workplace, to order the production of documents, to summon witnesses under threats of a $1,000 fine or six months imprisonment, and to compel people to give evidence under oath at its inquiries. It can only be said that those powers are draconian and unwarranted. I make one point in relation to the report of the Standing Committee for the Scrutiny of Bills, which has just been tabled in the Senate. It refers to the Committee's scrutiny of this Bill and draws particular attention to clause 52 of the Bill regarding the reversal of the onus of proof in regard to evidence produced against employers. It makes the point that that is unfair and prejudicial to the best interests of employers and individuals in the community and asks the Senate to consider that as part of its deliberations in relation to this Bill. So, a bipartisan committee of the Senate claims that the onerous provisions of this Bill are too much, even by the standards of some of its Labor members.

I refer briefly to a speech made in the House of Representatives by the shadow Minister for Employment and Industrial Relations, Mr Shack, who summarised the Opposition's position on occupational health and safety. I quote it because it is such a valuable statement. He stated:

The issue is national. The Commonwealth has a definite role to play. That role is properly one of direct partnership with the States. The Commonwealth can contribute by co-ordinating the various approaches of the States to the problems in this area. The Commonwealth can contribute by helping to propagate positive attitudes in relation to occupational health and safety amongst both employers and employees.

I believe that to be a very useful and firm summary of our position. It states most clearly why we are opposed to this legislation. We are anxious to encourage better occupational health and safety, but we believe that the establishment of a new commission such as the one proposed by this legislation is not only unnecessary but also undesirable and likely to be counter-productive. The Liberal and National parties have rejected the notion of making amendments to this Bill because in our view it is so full of matters requiring change that it would collapse if we did so. It would certainly create a totally different Bill. For those reasons, the Opposition opposes this legislation.