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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SAFE WORK AUSTRALIA AMENDMENT (ROLE AND FUNCTIONS) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)
Outline
OUTLINE
SAFE WORK AUSTRALIA AMENDMENT (ROLE AND FUNCTIONS) BILL 2017
The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) implements
the recommendations of the Review of Safe Work Australia's Role and Functions (The
Review). The Review was required to start 6 years after the commencement of the Safe Work
Australia Act 2008 (SWA Act) and was tabled in Parliament on 8 November 2016.
For more than 30 years Australia has had a national tripartite body overseeing work health
and safety (WHS). The most recent of these bodies, Safe Work Australia (SWA), was
established in 2008 as an independent statutory body by the SWA Act to lead the
development of national improvements in WHS outcomes and workers compensation
arrangements across Australia. SWA is an inclusive body representing the interests of the
Commonwealth, the States and Territories as well as workers and employers in Australia.
The Review found there is strong support for SWA's current role and functions and
consensus among stakeholders that SWA plays a crucial role in leading the development of
national policy by bringing together stakeholder groups. The Review however, made a
number of recommendations to further clarify SWA's role and update its functions to suit
changed circumstances, allow SWA to address emerging WHS issues, and to ensure its
functions remain current into the future.
Consistent with the Review's recommendations the Bill amends the SWA Act to:
include an overarching statement that provides a context in which SWA is to continue
to perform its functions and lead the development of national polices and strategies to
improve WHS outcomes and workers' compensation arrangements; and
update, consolidate and simplify SWA's functions.
The Bill also:
replaces outdated terms such as 'occupational health and safety' and 'Ministerial
Council'; and
clarifies that WHS ministers will continue to approve the model WHS legislative
framework and other key documents.
Safe Work Australia Amendment i House of Representatives
(Role and Functions) Bill 2017
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
N/A
Safe Work Australia Amendment i House of Representatives
(Role and Functions) Bill 2017
Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Safe Work Australia Amendment (Role and Functions) Bill 2017
The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) is 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 the Bill
The Safe Work Australia Amendment (Role and Functions) Bill 2017 (the Bill) implements
the recommendations of the Review of Safe Work Australia's Role and Functions (The
Review). The Review was required to start 6 years after the commencement of the Safe Work
Australia Act 2008 (SWA Act) and was tabled in Parliament on 8 November 2016. Its key
recommendations are to further clarify SWA's role and update its functions to suit changed
circumstances, allow SWA to address emerging work health and safety (WHS) issues, and to
ensure its functions remain current into the future
For more than 30 years Australia has had a national tripartite body addressing WHS. The
most recent of these bodies, Safe Work Australia (SWA), was established in 2008 as an
independent statutory body by the SWA Act to lead the development of national
improvements in WHS outcomes and workers' compensation arrangements across Australia.
SWA is an inclusive body representing the interests of the Commonwealth, the States and
Territories as well as workers and employers in Australia.
Article 7 of the International Covenant on Economic, Social and Cultural Rights provides that
everyone has the right to the 'enjoyment of just and favourable conditions of work, which
ensure, in particular ... [s]afe and healthy working conditions'. Australia principally complies
with its obligation under Article 7(b) of the ICESCR through a system of Commonwealth,
State and Territory work health and safety laws, which have been harmonised across the
majority of jurisdictions through the adoption of model laws developed by SWA.
SWA further supports compliance with Article 7 by providing a strong framework for
tripartite engagement on national WHS policy, including the development of model WHS
laws and the national WHS strategy. The importance of tripartite engagement is reflected in
International Labour Organization Convention 155 which requires state parties to
demonstrate that representatives of workers and business are actively engaged in the
development of WHS policy. 1
The Bill engages the right to safe and healthy working conditions by making necessary
amendments to the legislation that establishes and governs SWA. It will ensure that SWA is
positioned to address emerging WHS issues and that its functions remain current into the
future.
1
ILO (1981), C155 - Occupational Safety and Health Convention, 1981 (No.155), Articles 4 and 8.
Safe Work Australia Amendment i House of Representatives
(Role and Functions) Bill 2017
Statement of Compatibility with Human Rights
Conclusion
The Bill is compatible with human rights.
Minister for Employment, Senator the Hon Michaelia Cash
Safe Work Australia Amendment ii House of Representatives
(Role and Functions) Bill 2017
Notes on Clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
the Australian Strategy Australian Work Health and Safety
Strategy 2012-2022
the Bill Safe Work Australia Amendment (Role
and Functions) Bill 2017
model WHS laws The model Work Health and Safety Act
and model Work Health and Safety
Regulations developed by SWA
the Review Review of Safe Work Australia's Role and
Functions
SWA Safe Work Australia
SWA Act Safe Work Australia Act 2008
WHS Act Work Health Safety Act 2011
Clause 1 - Short title
1. Clause 1 provides for the short title of the Act to be the Safe Work Australia
Amendment (Role and Functions) Act 2017.
Clause 2 - Commencement
2. Clause 2 provides that the Act commences on the day after it receives Royal Assent.
Clause 3 - Schedules
3. Clause 3 is a mechanical provision. It provides that legislation that is specified in a
Schedule is amended or repealed as set out in the Schedule, and any other item in a
Schedule has effect according to its terms.
Safe Work Australia Amendment 1 House of Representatives
(Role and Functions) Bill 2017
Amendments - Schedule 1
SCHEDULE 1 - AMENDMENTS
Part 1 - Main amendments
Safe Work Australia Act 2008
Items 1 and 2 - updates to overview in Section 3
4. Item 1 repeals and replaces the first paragraph of the overview in section 3 of the
SWA Act. The Bill replaces references to 'occupational health and safety' with 'work
health and safety', which is a more commonly used term and consistent with the
language used in the model WHS legislative framework (see also Items 5 and 6).
5. Item 2 repeals and replaces the third and fourth paragraphs of the overview in
section 3. The new paragraphs are substantially the same as the repealed paragraphs
but reflect the change from 'OHS' to 'WHS' (see Items 5 and 6), the new definition
of 'WHS Ministers' which replaces 'Ministerial Council' (Item 6) and SWA's
updated functions (Item 8).
Items 3-6 - Section 4
6. Item 3 repeals the redundant definitions of 'approved model OHS codes of practice',
'approved model OHS legislation' and 'approved OHS compliance and enforcement
policy'. The definitions are used in section 6 of the SWA Act which is repealed by
Item 8.
7. The definitions of 'model OHS codes of practice' and 'model OHS legislation' are
replaced with a new definition 'model WHS legislative framework'.
8. Items 5 and 6 repeal the definition of 'OHS' and replace it with a new definition of
'WHS', which is a more commonly used term and consistent with the terminology
used in the model WHS legislative framework.
9. The new definition of WHS Ministers replaces the redundant definition of
'Ministerial Council', which refers to the abolished Workplace Relations Minister's
Council. The new definition uses updated language but will not change the way that
decisions are made in practice. The same group of Ministers will be responsible for
providing approvals, directions and so forth. See also transitional arrangements in
Item 9.
Item 7 - new Section 5A
10. Item 7 gives effect to Recommendation 1 of the Review. It inserts a new provision to
clarify SWA's role and provide guidance as to how it is to perform its functions. The
Review found that while SWA's functions were clearly identified in the establishing
Safe Work Australia Amendment 2 House of Representatives
(Role and Functions) Bill 2017
Amendments - Schedule 1
legislation its role was not.2 The lack of a clear legislated role for SWA has resulted in
some ambiguity around its purpose and how it is to perform its functions.
Item 8 - Section 6
11. Item 8 gives effect to Recommendation 2 of the Review by updating, consolidating
and simplifying SWA's functions. It repeals the table in the current section 6 and
inserts a new table.
12. The Review found that while the principles embodied in SWA's role largely remain
valid the functions need to be revised to suit changed circumstances, allow SWA to
address emerging WHS issues, and to ensure its functions remain current into the
future.3 For example, since SWA was established it has successfully developed model
WHS laws for implementation in the jurisdictions. SWA's functions have been
revised to make necessary updates to wording, consolidate functions where possible,
and to clarify relationships between the current functions. The revised functions will
ensure that SWA is positioned to address emerging WHS issues.
Function 1
13. Function 1 updates and consolidates the current Functions 1, 5 and 9. New Function 1
provides that SWA is to develop, evaluate and revise national work health and safety
and workers' compensation policies and supporting strategies. SWA may develop a
number of different strategies but is specifically required to continue its work on a
national WHS strategy and a national compliance and enforcement policy.
14. A policy dealing with compliance and enforcement is currently required by
Function 5 in section 6 of the SWA Act. The policy applies to the model WHS
legislative framework and promotes a nationally consistent approach to regulation of
the legislative framework. The policy is prepared by SWA for approval by the
WHS Ministers.
15. Function 9 in section 6 of the SWA Act requires SWA to develop a 'National OHS
Strategy' which has been replaced by the current 'Australian Strategy'. The new
function does not refer to a particular WHS strategy to ensure terminology will
remain current into the future. A national strategy is critical to ensuring a consistent
and coordinated national focus on priority WHS issues. The strategy is prepared by
SWA for approval by the WHS Ministers.
Function 2
16. Function 2 updates and consolidates current Functions 2, 3, 4 and 6. The updated and
consolidated function recognises that the model WHS legislative framework has been
implemented in most jurisdictions. SWA is responsible for developing, evaluating,
and if necessary, revising the model WHS legislative framework.
2
Review of Safe Work Australia's Role and Function (2016) ('The Review'), page vi.
3
Ibid, page vi.
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Amendments - Schedule 1
17. SWA will also continue to develop non-regulatory materials which support the
consistent interpretation of the model WHS laws and compliance with the framework,
such as interpretive guidelines and advice.
Function 3
18. Function 3 updates current Function 11. The Review found that there was minimal
support amongst stakeholders for SWA to work towards harmonising workers'
compensation laws. Instead, new Function 3 provides for SWA to work with the
Commonwealth, States and Territories to develop proposals to improve workers'
compensation arrangements, and to promote national consistency.
Function 4
19. Function 4 updates and consolidates current Functions 7 and 8 which deal with the
collection of data and research. Under the new function SWA will continue to collect,
analyse and publish relevant data, as well as undertake and publish research, to ensure
its policy development is evidence-based.
Function 5
20. Function 5 updates current Function 10. The new function provides for SWA to
develop and implement national strategies and initiatives to support improvements in
WHS outcomes and workers' compensation.
Function 6
21. Function 6 updates current Function 13. The revised function provides for SWA to
engage and collaborate with national and international bodies in an effort to drive
further improvements in WHS outcomes and workers' compensation arrangements.
SWA may also be invited to represent Australia at certain specialised international
forums such as the G20 Occupational Safety and Health Experts Network and the
United Nations Subcommittee of Experts on the Globally Harmonized System of
Classification and Labelling of Chemicals. The Department of Employment is the
primary representative of the Australian Government on WHS and workers'
compensation matters internationally however SWA has particular expertise in these
areas.
Function 7
22. Function 7 updates current Function 12, and refers to 'WHS Ministers' instead of the
repealed definition of 'Ministerial Council'.
Function 8
23. Function 8 replicates existing function 14. The item allows for other functions to be
conferred on SWA by or under the SWA Act or any other law of the Commonwealth.
For example, additional functions may be conferred by regulations made under the
SWA Act.
Safe Work Australia Amendment 4 House of Representatives
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Amendments - Schedule 1
Item 9 - Transitional provision - things done by, or in relation to, the Ministerial
Council
24. Item 9 is a transitional provision. The provision clarifies that anything done by, or in
relation to, the Ministerial Council under the SWA Act immediately before the
commencement of this item has effect after that commencement as if the thing had
been done by, or in relation to, the WHS Ministers. For example, a model WHS Code
of practice approved by the Ministerial Council will be taken to have been approved
by the WHS Ministers.
Part 2 - Consequential Amendments
25. A number of consequential amendments are required to replace references to
'Ministerial Council' with 'WHS Ministers', and references to 'OHS' with 'WHS'
respectively.
26. Item 70 repeals and replaces section 69, which provides for how ministers give
directions, an approval, or a refusal for the purposes of the SWA Act. The new section
is substantially the same and approval will still be provided in accordance with the
procedures determined by the relevant ministers.
Safe Work Australia Amendment 5 House of Representatives
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