Kevin Andrews (Menzies, Liberal Party, Minister Assisting the Prime Minister for the Public Service) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill. I move the following government amendment:

(1)    Schedule 1, page 5 (after line 20), after item 3, insert:

3A  Section 4

Repeal the section, substitute:

4  Act excludes some State and Territory laws

Exclusion of State and Territory laws

        (1)    Subject to subsection (2), this Act is intended to apply to the exclusion of any law of a State or Territory (other than a law prescribed under subsection (3)) to the extent that the law of the State or Territory relates to occupational health or safety and would otherwise apply in relation to employers, employees or the employment of employees.

Note:   For the meaning of employer and employee, see section 5.

State or Territory laws not excluded from applying to situations not covered by this Act

        (2)    If, because of section 14 or 15, provisions of this Act do not apply in relation to a particular situation, subsection (1) is not intended to affect the application of State or Territory laws to that situation.

Allowing certain State or Territory laws to apply

        (3)    If a State or Territory law deals with a matter relating to occupational health or safety that is not dealt with by or under this Act, the regulations may prescribe the law as not being intended to be excluded by this Act.

Interpretation

        (4)    In this section, a reference to laws of a State or Territory includes a reference to such laws as they have effect as applied provisions within the meaning of the Commonwealth Places (Application of Laws) Act 1970.

        (5)    In this section:

law includes a provision of a law (including, for example, a formula or a component of a formula).

The government amendment to section 4 of the act will exempt employers and employees in the Commonwealth from the operation of state and territory occupational health and safety laws unless these are specifically prescribed in regulations under the Commonwealth act. This amendment is necessary to clarify the legislative requirement for employers and employees covered by the Commonwealth act. The amendment is supported by licensees, as it will reduce duplication of occupational health and safety laws which apply to them. Without the amendment, those employers and employees can be subject to both Commonwealth and state and territory laws on the same subject matter.

When this act was first made, section 4, as currently drafted, had a role to play. The Commonwealth act, like all other Australian occupational health and safety laws, adopted the Robens approach of imposing general duties of care on employers, employees and others. Prescriptive provisions on particular issues were to be dealt with by regulations. As the Commonwealth had not at that stage drafted regulations on specific occupational health and safety issues, section 4 enabled state and territory regulations to address relevant issues for employment covered by the Commonwealth act in a more detailed manner. Since that time, however, the Commonwealth has implemented its own comprehensive regulations on a range of occupational health and safety issues. This has led to a situation where both Commonwealth and state and territory laws on the same issue can apply to employers and employees covered by the Commonwealth act. This is clearly unsatisfactory, as it causes unnecessary complexity and confusion.

The Commonwealth will continue to develop new regulations on specific occupational health and safety issues where this is necessary. The amendment will in no way diminish occupational health and safety protection for employees covered by the Commonwealth act. The government remains committed to the promotion of injury prevention, and best occupational health and safety practice is a key priority for the Australian government.

It will be much more effective to have occupational health and safety enforced as far as possible through a single set of rules rather than the fragmented regimes that exist at present. Under the Commonwealth act, all occupational health and safety issues can be enforced by Comcare through the general duties of care in the act. These are supported by the existing regulations, codes of practice and guidance material to assist employers to discharge their duty of care. There is now also a more effective enforcement regime in the act following its amendment by this government in 2004. These amendments introduced a strong new enforcement regime with a wide range of new sanctions, including tougher penalties for breaches of the act. I commend the amendment to the House.

Question agreed to.

Bill, as amended, agreed to.

Ordered that this bill be reported to the House with an amendment.