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Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2004

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2002-2003-2004

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL 2004

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP)

 

 

 



OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH

EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL 2004

 

 

OUTLINE

 

The Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) establishes a statutory framework to secure the health and safety of Commonwealth Government employees (including employees of Commonwealth agencies, statutory authorities and Government business enterprises) while at work.  This framework complements the Commonwealth workers’ compensation and rehabilitation legislation.

 

The Commonwealth’s approach is focussed on prevention of workplace deaths and injuries.  The new enforcement and compliance framework proposed in the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 (the OHS(CE)A(EIC) Bill) would improve occupational health and safety performance and help prevent workplace deaths and injuries.  The OHS(CE)A(EIC) Bill would create a dual criminal and civil penalty regime for breaches of the Act reserving criminal prosecutions for the most serious breaches.

 

On 27 November 2003, the Legislative Assembly of the Australian Capital Territory (ACT) passed the Crimes (Industrial Manslaughter) Amendment Act 2002 .  This legislation commenced on 1 March 2004.  That Act inserted a new Part 2A into the Crimes Act 1900 (ACT).  Part 2A contains two new offences of industrial manslaughter.  The two offences are: ‘Industrial manslaughter - employer offence’ and ‘Industrial manslaughter - senior officer offence’.  

 

It is possible that there are some Commonwealth authorities, particularly Government business enterprises, and the employees of such bodies, covered by the Act which may be liable to prosecution for the industrial manslaughter offences contained in Part 2A of the Crimes Act 1900 (ACT).

 

The Commonwealth opposes the ACT industrial manslaughter laws on the basis that they create specific offences:

 

(a)     in the Crimes Act 1900 (ACT) which duplicate existing offences available to deal with workplace deaths in the Crimes Act 1900 (ACT) and the Occupational Health and Safety Act 1989 (ACT); and 

(b)     which single out the conduct of employers and senior officers.

 

The Commonwealth considers that creating industrial manslaughter offences under the general criminal law is inconsistent with the overall objective of the occupational health and safety legislation framework to prevent workplace deaths and injuries, rather than just punishment after the event.

 

The purpose of this Bill is to exclude Commonwealth employers and employees from the application of the ACT industrial manslaughter laws and any other similar industrial manslaughter laws enacted by a State or Territory in the future.

 

The Bill proposes to amend the Act to provide that:

 

(a)     Part 2A of the Crimes Act 1900 (ACT); and

(b)     any other similar industrial manslaughter laws in a State or Territory that are prescribed in the regulations;

 

have no effect to the extent to which those laws impose a criminal liability on an employer, employing authority or employee covered by the Act in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person.

 

FINANCIAL IMPACT STATEMENT

 

The Bill has no financial impact on the Commonwealth Budget.

 

 



 

NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

This is a formal provision specifying the short title of the Act.

 

Clause 2 - Commencement

 

This clause specifies the Act is taken to have commenced on the day on which it receives Royal Assent.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that an Act specified in a Schedule to this Act is amended or repealed as set out in the Schedule, and that any other item in a Schedule operates according to its terms.

 



SCHEDULE 1 - AMENDMENT OF THE OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) ACT 1991

 

Item 1 - After section 11

 

1.1                    This item would amend the Act to insert a new section 11A.  

 

1.2                    Proposed subsections (1) and (2) set out those State and Territory laws which have no effect in relation to employers, employing authorities and employees covered by the Act.

 

1.3                    Proposed subsection (1) deals with the enactment of other industrial manslaughter laws similar to Part 2A of the Crimes Act 1900 (ACT) in any State or Territory.  This subsection would provide that the new section 11A applies to a law of a State or Territory that imposes criminal liability in respect of a person’s death that occurs during, or in relation to, the person’s employment or the provision of services to another person and is prescribed by regulations. 

 

1.4                    Without the criteria of prescribing the relevant laws, proposed paragraph (1)(a) could apply to State and Territory laws which create general criminal offences, such as manslaughter, murder and culpable driving.  This would include, for example, the offence of manslaughter in section 15 of the Crimes Act 1900 (ACT).  However, it is not the Commonwealth’s intention to exclude its employers, employing authorities or employees from the application of these laws.  Similarly, the Commonwealth does not intend to effect the concurrent operation of State or Territory laws which promote occupational health and safety which is provided for by section 4 of the Act.

 

1.5                    Commonwealth occupational health and safety policy is focussed on prevention of workplace deaths and injuries.  Such a policy is inconsistent with those specific types of State and Territory laws which purport to impose criminal liability in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person - that is laws like Part 2A of the Crimes Act 1900 (ACT).  Only these particular type of laws would be prescribed under the new paragraph (1)(b). 

 

1.6                    Proposed subsection (2) would provide that new section 11A applies to Part 2A of the Crimes Act 1900 (ACT).  The new section 11A, however, would only apply to each criminal liability imposed by Part 2A that is in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person.  This would ensure that if Part 2A were amended, for example by inserting other offences which do not impose criminal liability in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person, those other offences would not be effected.   

 

1.7                    Proposed subsection (3) would provide that a law to which the section applies under the new subsection (1) or (2) has no effect.  However, to limit as far as possible the effect on State and Territory laws, this proposed subsection is only in respect of State and Territory laws to the extent to which they purport to impose a criminal liability on an employer, employing authority or employee in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person.

 

1.8                    Proposed subsection (3) would apply in respect of conduct of an employer, employing authority or employee occurring on or after the introduction day.  The introduction day is the date on which the Bill was introduced into Parliament.  The retrospective effect of the proposed provision would ensure that an employer, employing authority or an employee would not be liable for industrial manslaughter offences under Part 2A of the Crimes Act 1900 (ACT) for conduct that occurs on or after the date of introduction.   

 

1.9                    The retrospective effect of the amendments is consistent with the Commonwealth’s view that existing occupational health and safety laws and the generally applying criminal laws already cover the conduct with which the industrial manslaughter offences seek to deal.

 

1.10                Proposed subsection (4) would clarify that the terms ‘employer’, ‘employing authority’ and ‘employee’ in the new section 11A would have the same meaning as given in section 5 of the Act.  Proposed subsection (4) also provides a definition for the term ‘introduction day’ used in proposed subsection (3).

 

1.11                Proposed subsection (5) would provide that subsection (2) does not limit the generality of subsection (1).  This provision has been included to ensure that the reference to a law of a State or Territory in proposed subsection (1) is not read down.  For example, subsection (2) should not prevent other Australian Capital Territory laws being prescribed for the purposes of the proposed subsection (1).  The proposed subsection (5) would also clarify that Part 2A of the Crimes Act 1900 (ACT) is not a law which needs to be prescribed for the purposes of the new subsection (1).

 

1.12                Proposed subsection (6) would ensure that section 4 and section 11 of the Act do not effect or limit the operation of proposed section 11A.

 

1.13                Section 4 permits State and Territory laws that promote the occupational health and safety of persons to operate concurrently with the Act.  Subsection 11(2) provides that nothing in the Act, including section 4, renders the Commonwealth, a Commonwealth authority (other than a Government business enterprise), or a Commonwealth employee liable to be prosecuted for an offence.  Subsection 11(3) of the Act provides that subsection (2) does not prevent the prosecution of a Government business enterprise or a person employed by a Government business enterprise.