Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

That is right.

Question agreed to.

by leave—I move government amendments (1) and (7) together:

(1)    Clause 2, page 2 (table item 9), omit “Schedule 2”, substitute “Schedules 2 and 3”.

(7)    Page 22 (after line 2), at the end of the bill, add:

Schedule 3—Amendments relating to occupational health and safety

Occupational Health and Safety Act 1991

1  After section 23

Insert:

23A  Unlicensed operation of major hazard facility

        (1)    A person must not operate a major hazard facility if:

             (a)    the person is required by the regulations to have a licence to operate the facility; and

             (b)    the person does not have such a licence.

Note:   A person who contravenes this provision may be subject to civil action (see Schedule 2).

        (2)    For the purposes of subsection (1), a major hazard facility means a facility that is a major hazard facility within the meaning of the regulations.

2  Schedule 2 (heading)

Repeal the heading, substitute:

Schedule 2—Civil and criminal proceedings

3  After paragraph 2(1)(f) of Schedule 2

Insert:

            (fa)    section 23A (unlicensed operation of major hazard facilities);

4  At the end of subclause 2(1) of Schedule 2 (before the note)

Add:

           ; (o)    a provision of the regulations specified in the regulations to be a civil penalty provision.

5  Paragraph 2(3)(c) of Schedule 2

Repeal the paragraph, substitute:

             (c)    any provision that the person who contravened that subclause breached or was involved in breaching;

6  Subclause 4(2) of Schedule 2 (after table item 7)

Insert:

7  Subclause 4(2) of Schedule 2 (at the end of the table)

Add:

8  Subclause 13(1) of Schedule 2 (paragraph (a) of the definition of civil penalty proceedings)

After “subclause 2(1)”, insert “(other than a contravention arising because of a breach of a provision of the regulations to which strict liability applies)”.

I thank the Senate for its support of the last amendment. Amendments (1) and (7) relate to occupational health and safety. These amendments would amend the compliance provisions contained in the Occupational Health and Safety Act 1991 in two respects. First, item 1 of amendment (7) inserts a new section 23A that provides that a person must not operate a major hazard facility without a licence if the person is required by regulations to have a licence to operate the facility. Regulations made under the act already impose licensing requirements on major hazard facility operators. The ultimate sanction for a failure to comply with these licensing requirements is suspension or revocation of the licence.

Presently, however, the maximum level of penalties that could be imposed under the regulations for operating a major hazard facility without a licence are substantially less than the costs of complying with the licensing requirements. This may encourage some—we would suspect very few but, nevertheless, some—businesses to continue operating major hazard facilities without meeting their licensing requirements. This would be of concern, given the higher risks posed by major hazard facilities. The amendments address this problem by providing a more appropriate level of penalty for operating a major hazard facility without a licence—a maximum of 2,200 penalty units or $242,000 per offence.

Items 2 to 8 of amendment (7) extend the civil penalty regime in the Occupational Health and Safety Act to breaches of regulations made under the act. The OHS Act contains a dual civil and criminal penalty regime. However, the civil penalty regime applies only to breaches of the act itself and not to breaches of regulations. Currently, the only available sanction for a breach of the regulations is a criminal penalty. This is inconsistent with the scheme of the act, which gives primacy to the civil penalty regime and retains criminal penalties for serious breaches of the act, such as negligent or reckless conduct that may cause or expose an employee to death or serious injury.