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Asbestos Safety and Eradication Agency Bill 2013

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2010-2011-2012-2013

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

ASBESTOS SAFETY AND ERADICATION AGENCY BILL 2013

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable William Richard Shorten MP)

 





AMENDMENTS TO THE ASBESTOS SAFETY AND ERADICATION AGENCY BILL 2013

OUTLINE

The Government will move amendments to the Asbestos Safety and Eradication Agency Bill 2013 (the Bill) to ensure that the provisions better align with the recommendations of the Asbestos Management Review Report June 2012 and to enable the Asbestos Safety and Eradication Agency (the Agency) to operate as intended. These amendments follow the publication of Report of the Education, Employment and Workplace Relations Legislation Committee of May 2013 and further consultation with stakeholders.

Object

The Government proposes an amendment to provide an object for the Bill.

National Strategic Plan

The Bill provides that the functions of the Agency will include administering the “National Strategic Plan for Asbestos Management and Awareness” (the Plan). The Government proposes an amendment to provide for further details as to the aim and content of the Plan.

Asbestos Safety and Eradication Council (the Council)

The Bill establishes the Council. The Government proposes an amendment that provides the Council with additional functions of monitoring the adoption of the plan and providing advice concerning the Plan and the Agency’s annual operational plan. The Government further proposes amendments to expand the membership of the Council, allowing for additional representation from State, Territory and local governments, and ensuring that there is a representative of workers and also of employers on the Council.

The Council’s Guidelines

The Government proposes amendments to clarify the relationship between the Chief Executive Officer (CEO) of the Agency and the Council. In particular the amendments will make clear that the CEO must have regard to recommendations and advice of the Council, but must comply (subject to certain exceptions) with any Guidelines which the Council issues.

An amendment is also proposed to provide that any such Guidelines issued by the Council will be of no effect to the extent that they are inconsistent with Ministerial Directions to the CEO.

Committees

An amendment is also proposed to enable to Council to establish committees to assist it in performing its functions.

 

 



Council Procedures

As a consequence of the expansion of the Council’s role further amendments are proposed regarding the Council’s procedures. These amendments set out what constitutes a quorum for meetings; how decisions are to be made; how meetings are to be conducted; the requirement for Minutes; and how the Council is to deal with potential conflicts of interest.

 

Financial Impact Statement

Nil



 



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Asbestos Safety and Eradication Agency Bill 2013

These amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of amendments to the Asbestos Safety and Eradication Agency Bill 2013

Amendments to the Bill will ensure that the provisions of the Bill operate as intended, and align with the recommendations of the Asbestos Management Review Report-June 2012 (the Report) principally by:

·          providing for priority areas for the “National Strategic Plan for Asbestos Management and Awareness” (the Plan);

·          expanding the functions and composition of the Asbestos Safety and Eradication Council (the Council)

·          clarifying issues concerning the Council’s role and its procedures 

Human rights implications

Right to safe and healthy working conditions

Article 7 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) requires that State parties to the ICESCR recognise the right of everyone to the enjoyment of just and favourable working conditions, including the right to safe and healthy working conditions.

Through its administration of the Plan the Asbestos Safety and Eradication Agency (the Agency) will actively work to reduce the risks posed by workplaces in Australia. This will promote the right to safe and healthy working conditions for workers throughout Australia.

The amendments will enhance the promotion of those safe and healthy working conditions by setting out the priority matters for the Plan including systematic identification of material containing asbestos, and systems, timelines and processes for removal and disposal of such material.

The amendments will also ensure greater participation in the Council, including representation by a larger number of representatives from State, Territory and local government, and specific representation for a representative of workers and also of employers. The Council will also have expanded functions under the amendments to monitor the adoption of the Plan across all levels of government, and an enhanced advisory role.

Right to enjoyment of the highest attainable standard of physical and mental health

Article 12 of the ICESCR requires that State parties to the ICESCR recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This includes taking steps towards the improvement of all aspects of environmental and industrial hygiene, and the prevention and control of occupational and other diseases.



The Agency through the Plan will make a significant contribution to the right to the enjoyment of that highest attainable standard of physical and mental health for all Australians.

The amendments will enhance the promotion of that high standard of physical and mental health by setting out the priority matters for the Plan. These include, as stated above, systematic identification of material containing asbestos, and systems, timelines and processes for removal and disposal of such material. They also include measures to assist the residential sector to minimise the risk of asbestos, improving education and information. The amendments are accordingly directed at the requirements of Article 12.

The greater participation of the Council and its expanded functions outlined above will enable the Council to contribute in a broader and more effective way towards ensuring Australians are able to enjoy the highest attainable standard of physical and mental health.

Right to Privacy

The right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence. The amendments do not contain any provisions that compel a person to disclose information, nor to share any information in a manner inconsistent with the Privacy Act 1988. As such the amendments do not interfere with the right to privacy and are consistent with Article 17.  

Conclusion

The amendments to the Bill are compatible with human rights because they, together with the Bill, advance the protection of human rights.

Minister for Employment and Workplace Relations, the Honourable William Richard Shorten MP



 



NOTES ON AMENDMENTS

In these notes on amendments, the following abbreviations are used:

the Agency

Asbestos Safety and Eradication Agency

the Bill

Asbestos Safety and Eradication Agency Bill 2013

the CEO

Chief Executive Officer of the Agency

the Council

Asbestos Safety and Eradication Council

the Plan

National Strategic Plan for Asbestos Management and Awareness

the Report

Asbestos Management Review Report - June 2012

the Senate Report

Report of the Education, Employment and Workplace Relations Legislation Committee of May 2013



 



Amendment 1 - Page 2 (after line 12) after clause 2

1.                   This amendment inserts an object into the Bill being to establish the Agency which administers the Plan which has as its aim to eliminate asbestos - related disease in Australia through preventing exposure to asbestos fibres. The Agency will administer the Plan in accordance with its functions as set out in clause 8 of the Bill.

 

Amendment 2 - Clause 3, page 2 (line 18)

 

2.                   This amendment inserts both education and information sharing as matters included within the term “asbestos safety”. Both these areas were included in the Report as priority areas, together with the other matters already included within the term “asbestos safety”. 

Amendment 3 - Clause 3, page 3 (lines 8 and 9)

3.                   The amendment to clause 3 of the Bill made by this item provides that the Plan has a meaning as set out in new clause 5A inserted by Amendment 4.    

Amendment 4 - Page 3 (line 16) after Part 1

4.                   The amendment introduces new clause 5A. That new clause provides for a detailed definition of the Plan that aligns with recommendation 2 of the Report. It also provides further specificity with respect to the priorities of the Plan providing greater alignment with recommendation 2(b) of the Report. 

Amendment 5 - Clause 12, page 7 (lines 13 and 14)

Amendment 6 - Clause 12, page 7 (lines 16)

Amendment 7 - Clause 12, page 7 (after line 16), after subclause (1)

5.         These amendments concern the relationship between the Council and the CEO of the Agency and will ensure the alignment between the Agency and the Council more closely reflects recommendation 9 of the Report. They clarify that, in addition to being able to provide advice and recommendations to the CEO which the CEO must have regard to in performing their functions, the Council may issue guidelines under clause 29 which must be complied with by the CEO. That requirement to comply with any such guidelines is however subject to a requirement that the CEO comply with the Public Service Act 1999 and the Financial Management and Accountability Act 1997.

Amendment 8 - Page 11 (after line 31), at the end of Division 3

 

6.          This amendment would allow the CEO to delegate their functions to a member of the staff of the Agency. This is intended to assist the CEO to carry out their functions. As it is intended that the Agency will not have a large number of staff, and within that staff possibly no officers within the Senior Executive Service, it is considered appropriate that the CEO has power to delegate broadly within the Agency.

 

Amendment 9 - Clause 29, page 14 (lines 12 and 13)

7.         This amendment would have the effect of providing that the Council does not need to wait for a request from the Minister before providing advice to the Minister about asbestos



safety. This will give greater flexibility to the Council, and allow it to act in a timely manner. The amendment takes into account the Coalition Senators Additional Comments to the Senate Report (point 1.3).

Amendment 10 - Clause 29, line 14 (after line 13) at the end of subclause (1)

8.                   This amendment provides for additional functions for the Council which will give greater clarity to its role. It will allow the Council, with its expanded representation, to monitor the adoption of the Plan by all levels of government. Additionally it will make clear the Council’s advisory role in regard to both the Plan and the Agency’s annual operational plan. These amendments take into account considerations outlined in the Senate Report (2.38 to 2.42).

 

Amendment 11 - Clause  29 , page 14 (after line 16) , after subclause ( 2 )

Amendment 12 - Clause  29 , page 14 (lines 20 and 21)

9.                   These amendments relate to guidelines issued by the Council. Amendment 11 deals with the interaction between the guidelines and directions by the Minister to the CEO.  Amendment 12 removes subclause 29(4) which would have otherwise contradicted the effect of Amendments 5, 6 and 7.

Amendment 13-Page 15 (after line 5), at the end of Division 1

10.               This amendment allows the Council to establish committees to assist them in the performance of their functions. The Council has the power to determine the constitution of the committee, and is required to set out in writing the committee’s terms of reference, the terms and conditions of appointment of members of the committee and the procedures to followed by the committee.

 

11.               This amendment arose as a result of the Senate Report ( 2.43 to 2.46 ). Any such committees established would be expected to align with the priorities of the Plan. Examples of the types of committees that could be established would be committees dealing with best practice; identification; removal; research; international leadership; States, Territories and local government matters.

 

12.               Subclause 30A(4) provides that an instrument made under this clause is not a legislative instrument. This subclause is included to assist readers by pointing out that the instrument made would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

Amendment 14 - Clause 31, page 16 (lines 7 to 9)

 

13.               This amendment will ensure that the membership of the Council better reflects recommendation 9 of the Report. It is further informed by the considerations set out in the Senate Report regarding the size and composition of the Council (2.32 to 2.38), the Coalition Senators Additional Comments to the Senate Report (point 1.2), and further consultations with State and Territory governments.  In that regard the amendment will ensure there is an appropriate level of membership of all levels of government. The amendment will also expressly provide that there is representation by national bodies that represent employers and workers respectively.



Amendment 15 - Clause 32, page 16 (after line 18), after paragraph (2)(c)

 

14.               This amendment is consequential upon Amendment 14 providing for representation by national bodies that represent employers and workers.

 

Amendment 16 - Clause 32, page 16 (line 21)

 

15.               This amendment is consequential upon Amendment 14 providing for representation by national bodies that represent employers and workers. It ensures that all non-governmental appointees to the Council have the requisite knowledge or experience in the fields set out in subclause 32 (3).

 

Amendment 17 - Clause 32, page 16 (after line 30)

 

16.               The amendment sets out the process for the appointment of representatives of workers and employers respectively. This consists of the Minister authorising a body; the authorised body nominating a person; and the Minister considering that nomination. This method of appointment is the same as that used for the appointment of such representatives under the Safe Work Australia Act 2008 (sections 15 and 16).

Amendment 18 - Clause  37 , page 20 (after line 17) , at the end of the clause

Amendment 19 - Heading to Division  4 , page 22 (line 1)

Amendment 20 - Page 22 (after line 10) , at the end of Division  4

 

Amendment 21 - Page 22 , at the end of Division 4 (after proposed section 41A)

 

Amendment 22 - Page 22 , at the end of Division  4 (after proposed section 41B)

 

Amendment 23 - Page 22 , at the end of Division  4 (after proposed section 41C)

 

Amendment 24 - Page 22 , at the end of Division  4 (after proposed section 41D)

 

17.                These amendments arise as a result of Amendments 7 and 14 and concern the procedures for Council meetings and decision making.

18.               Amendment 18 contains procedures for dealing with any conflicts of interest that arise during decision making.

19.               Amendment 19 is a technical change of heading to provide that Division 4 deals with all procedures of the council and not only with meetings.

20.               Amendments 20, 21, 22 and 23 specify what constitutes a quorum; set out voting procedures; prescribe the keeping of minutes; and provide that the Council can regulate its own meeting procedures.

21.               Amendment 24 provides the process by which the Council is able to make decisions without the need to formally meet.