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Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005

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2004- 2005

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL 2005

 

 

 

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 2005

 

 

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 to occupational health and safety focuses on the prevention of workplace deaths and injuries.  The Commonwealth recently amended the Act, through the Occupational Health and Safety (Commonwealth Employment) (Employee Involvement and Compliance) Bill 2004 (EI&C Bill) which came into effect on 13 September 2004, to provide a new enforcement regime based on both criminal and civil penalties. The amendments seek to prevent workplace injuries and accidents and improve workplace safety by providing an even greater mix of preventative, remedial and punitive civil and criminal sanctions, but reserving criminal sanctions 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)     which duplicate existing offences available to deal with workplace deaths, such as the general offence of manslaughter in section 15 of 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 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 and that are prescribed in the regulations.

 

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 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. 

 

1.3                    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 affect the operation of section 4 of the Act which provides for the concurrent operation of State and Territory laws which promote occupational health and safety. 

 

1.4                    Commonwealth occupational health and safety policy is focussed on prevention of workplace deaths and injuries.  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 are inconsistent with this policy - that is, laws like Part 2A of the Crimes Act 1900 (ACT).  Only this particular type of law would be prescribed under the new paragraph (1)(b). 

 

1.5                    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 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 affected.   

 

1.6                    Proposed subsection (3) would provide that a law to which the section applies under new subsection (1) or (2) has no effect to the extent that it purports to 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. 

 

1.7                    Proposed subsection (3) would apply in respect of conduct of an employer, employing authority or employee occurring on or after 1 March 2004.  Although the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Act 2005 would commence on the date on which it receives the Royal Assent, proposed subsection (3) would have retrospective effect, by ensuring that an employer, employing authority or an employee covered by the OHS(CE) Act would not be liable for industrial manslaughter offences under Part 2A of the Crimes Act 1900 (ACT) for conduct that occurs on or after 1 March 2004.   

 

1.8                    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 and provide appropriate sanctions for such conduct.

 

1.9                    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. 

 

1.10                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).  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).

 

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

 

1.12                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) liable to be prosecuted for an offence.  Subsection 11(3) of the Act provides that subsection (2) does not prevent the Commonwealth or Commonwealth authority being liable to proceedings for a declaration of contravention by a court and to pay a pecuniary penalty pursuant to an order of a court.  Commonwealth and Commonwealth authorities will also be subject to other civil orders such as enforceable undertakings, remedial orders and injunctions.