Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

This Bill is cognate with the Work Health and Safety Bill 2011.

Overview of Bill

The object of this Bill is to amend the Occupational Health and Safety Act 2000 (the
OHS Act) to adopt the following proposed national work health and safety reforms
pending the enactment in New South Wales of the proposed Work Health and Safety
Act 2011:

(a) the general duties under the OHS Act to ensure health, safety and welfare (and
the duties under the regulations) will be qualified by the inclusion of "so far as
is reasonably practicable" (thereby requiring the prosecution to prove what
was reasonably practicable and removing the need for the defendant to
establish that it was not reasonably practicable to comply with the duty),

(b) a duty will be placed on officers of a corporation to exercise due diligence to
ensure that the corporation complies with health, safety and welfare duties
(with this duty to replace the existing provision that deems directors and
managers of a corporation to be guilty of offences committed by the
corporation),

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Occupational Health and Safety Amendment Bill 2011
Explanatory note

(c) the secretary of an industrial organisation of employees will no longer be
entitled to institute proceedings for an offence under the OHS Act that
concerns members of the organisation.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent.

Schedule 1 Amendment of Occupational Health and
Safety Act 2000 No 40
Qualification of health and safety duties--onus of proof
Currently, the duties under the OHS Act to ensure health and safety are expressed in
unqualified terms (with provision of a defence in section 28 of the Act relating to
reasonable practicality). Schedule 1 [2], [3] and [5]-[7] and Schedule 2 qualify
these duties and the health and safety duties under the regulations so that they will
apply only so far as is reasonably practicable. Schedule 1 [8] makes a similar
amendment to the duty of employees to co-operate as necessary with health, safety
and welfare requirements at work, so that the duty will be a duty to co-operate so far
as is reasonably necessary to enable compliance with those requirements.

In addition Schedule 1 [1] inserts proposed section 7A into the OHS Act to clarify
that a duty imposed to ensure health and safety so far as is reasonably practicable
requires the elimination of risks so far as is reasonably practicable and the
minimisation of those risks so far as is reasonably practicable (if elimination is not
reasonably practicable). The matters that are relevant in determining what is
reasonably practicable in relation to ensuring health and safety are also set out in
proposed section 7A.

Schedule 1 [10] omits section 28 of the OHS Act which currently provides a defence
in proceedings under the Act (in addition to the general provisions of the criminal law
that exclude criminal liability) if it is not reasonably practicable for the person to
comply with a duty or if the commission of the offence was due to causes over which
the person had no control and against the happening of which it was impracticable
for the person to make provision. The omission of the defence is consequential on the
qualification of duties under the Act and regulations so that they apply "in so far as
is reasonably practicable".

Schedule 1 [13] amends section 90 of the OHS Act so that a failure of the occupier
of premises to comply with an investigation notice is qualified by the defence of
"reasonable excuse".

Schedule 1 [11] makes a consequential amendment.

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Occupational Health and Safety Amendment Bill 2011
Explanatory note
Liability of officers of corporations
Section 26 of the OHS Act currently provides that a director or person concerned in
the management of a corporation is liable for any contravention of the Act or
regulations by the corporation unless that person used all due diligence to prevent the
contravention by the corporation or was not in a position to influence the conduct of
the corporation in relation to its contravention of the provision. Schedule 1 [9]
substitutes section 26, replacing the current provision with a new provision that
imposes a duty on officers of a corporation to exercise due diligence to ensure that
the corporation complies with its occupational health and safety duties. Schedule 1
[4] and [12] make consequential amendments. Proposed section 26 also provides
that an officer who is a volunteer (that is, a person who does community work on a
voluntary basis as defined in the Civil Liability Act 2002) is not liable to be
prosecuted under the section.

Prosecutions by trade unions
Schedule 1 [14] abolishes the entitlement of the secretary of an industrial
organisation of employees to institute proceedings for an offence concerning
members of the organisation.

Miscellaneous
Schedule 1 [15] enables the making of regulations of a savings or transitional nature
consequent on the enactment of the proposed Act.

Schedule 1 [16] contains provisions of a savings and transitional nature. In
particular, the amendments made by the proposed Act will not apply to
contraventions occurring before the enactment of the proposed Act, except that the
amendment relating to prosecutions by trade unions will apply on and from the date
of introduction into Parliament of the Bill for the proposed Act.

Schedule 2 Amendment of Occupational Health and
Safety Regulation 2001
Schedule 2 [2] provides (as outlined above) that any duty in the Occupational Health
and Safety Regulation 2001 to take or refrain from taking any action for the
protection of health or safety applies only so far as it is reasonably practicable to take
or refrain from taking that action. Schedule 2 [1], [3] and [4] make consequential
amendments.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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