2004-2005 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 (Employment and Workplace Relations) A Bill for an Act to repeal the National Occupational Health and Safety Commission Act 1985, to deal with consequential and transitional matters related to that repeal and to the enactment of the Australian Workplace Safety Standards Act 2005, and for related purposes [Page Break] 1 Short title.......................................................................................1 2 Commencement .............................................................................2 3 Schedule(s)....................................................................................2 Schedule 1--Abolition of the National Occupational Health and Safety Commission 3 Part 1--Repeal of the National Occupational Health and Safety Commission Act 1985 3 National Occupational Health and Safety Commission Act 1985 3 Part 2--Transitional and saving arrangements 4 Schedule 2--Amendment of other Acts and related saving provisions 11 Industrial Chemicals (Notification and Assessment) Act 1989 11 Occupational Health and Safety (Commonwealth Employment) Act 1991 11 Occupational Health and Safety (Maritime Industry) Act 1993 12 Safety, Rehabilitation and Compensation Act 1988 13 i National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] 2 Occupational Health and Safety Commission Act 3 1985, to deal with consequential and transitional 4 matters related to that repeal and to the enactment 5 of the Australian Workplace Safety Standards Act 6 2005, and for related purposes 7 The Parliament of Australia enacts: 8 1 Short title 9 This Act may be cited as the National Occupational Health and 10 Safety Commission (Repeal, Consequential and Transitional 11 Provisions) Act 2005. National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 1 [Page Break] 2 (1) Each provision of this Act specified in column 1 of the table 3 commences, or is taken to have commenced, in accordance with 4 column 2 of the table. Any other statement in column 2 has effect 5 according to its terms. 6 Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 At the same time as section 3 of the and 2 Australian Workplace Safety Standards Act 2005 commences. 7 Note: This table relates only to the provisions of this Act as originally 8 passed by the Parliament and assented to. It will not be expanded to 9 deal with provisions inserted in this Act after assent. 10 (2) Column 3 of the table contains additional information that is not 11 part of this Act. Information in this column may be added to or 12 edited in any published version of this Act. 13 3 Schedule(s) 14 Each Act that is specified in a Schedule to this Act is amended or 15 repealed as set out in the applicable items in the Schedule 16 concerned, and any other item in a Schedule to this Act has effect 17 according to its terms. 2 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] Repeal of the National Occupational Health and Safety Commission Act 1985 Part 1 1 2 Schedule 1--Abolition of the National 3 Occupational Health and Safety 4 Commission 5 Part 1--Repeal of the National Occupational Health 6 and Safety Commission Act 1985 7 National Occupational Health and Safety Commission Act 8 1985 9 1 The whole of the Act 10 Repeal the Act. National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 3 [Page Break] Part 2 Transitional and saving arrangements 1 2 Part 2--Transitional and saving arrangements 3 2 Definitions 4 In this Part: 5 abolition day means the day on which section 3 of the Standards Act 6 commences. 7 assets means property of every kind and, without limiting the generality 8 of the foregoing, includes: 9 (a) choses in action; and 10 (b) rights, interests and claims of every kind in or to property, 11 whether arising under an instrument or otherwise, and 12 whether legal or equitable, liquidated or unliquidated, certain 13 or contingent, accrued or accruing. 14 Australian Safety and Compensation Council has the same meaning as 15 in the Standards Act. 16 authorised officer means the Minister, the Secretary of the Department 17 or any other person authorised by the Minister for the purposes of this 18 Part. 19 Commission means the National Occupational Health and Safety 20 Commission that was established under section 6 of the NOHSC Act. 21 Commission instrument means an instrument subsisting immediately 22 before abolition day: 23 (a) to which the Commission was a party; or 24 (b) that was given to, or in favour of, the Commission; or 25 (c) in which a reference is made to the Commission; or 26 (d) under which money is or was, or may become or may have 27 become, payable to the Commission; or 28 (e) under which any other property is or was to be, or may 29 become liable to be or to have been, transferred to or by the 30 Commission. 31 liabilities means liabilities of every kind and, without limiting the 32 generality of the foregoing, includes obligations of every kind, whether 33 arising at law or in equity, whether arising under or by virtue of an 34 instrument or otherwise, and whether liquidated or unliquidated, certain 35 or contingent, accrued or accruing. 4 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] Transitional and saving arrangements Part 2 1 NOHSC Act means the National Occupational Health and Safety 2 Commission Act 1985. 3 Secretary means the Secretary of the Department. 4 Standards Act means the Australian Workplace Safety Standards Act 5 2005. 6 3 Transfer of assets and liabilities 7 On abolition day: 8 (a) any assets that, immediately before that day, were vested in 9 the Commission are, by force of this item, vested in the 10 Commonwealth; and 11 (b) the Commonwealth becomes, by force of this item, liable to 12 pay and discharge liabilities of the Commission that existed 13 immediately before that day. 14 4 Custody of Commission records or documents 15 (1) Any record or document, including a Commission instrument other than 16 a Commission instrument declaring a national standard or code of 17 practice under section 38 of the NOHSC Act, that was in the custody of 18 the Commission immediately before abolition day is to be transferred 19 into the custody of the Commonwealth on or after that day. 20 (2) Any Commission instrument declaring a national standard or code of 21 practice under section 38 of the NOHSC Act that was in the custody of 22 the Commission immediately before abolition day is to be transferred 23 into the custody of the Australian Safety and Compensation Council on 24 or after that day. 25 5 Pending proceedings 26 If, immediately before abolition day, proceedings to which the 27 Commission was a party were pending in any court or tribunal, the 28 Commonwealth is, on and after that day and despite the provisions of 29 any other law or instrument, substituted for the Commission as a party 30 to the proceedings and has the same rights in the proceedings as the 31 Commission had. 32 6 Exemption from taxation 33 (1) Any transfer of assets or liabilities, or any other dealing, under this Part, 34 and any instrument facilitating or evidencing such a transfer or other National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 5 [Page Break] Part 2 Transitional and saving arrangements 1 dealing, is not subject to stamp duty or other tax under a law of the 2 Commonwealth or of a State or Territory if an authorised officer 3 certifies, in writing: 4 (a) that the transfer or dealing is a transfer or dealing for a 5 purpose connected with, or arising out of, the operation of 6 this Part; or 7 (b) that the instrument facilitating or evidencing a transfer or 8 dealing is an instrument made or given because of, or for a 9 purpose connected with, or arising out of, the operation of 10 this Part. 11 (2) A certificate given by an authorised officer under subitem (1) is not a 12 legislative instrument for the purposes of the Legislative Instruments 13 Act 2003. 14 7 Commission instruments 15 (1) A Commission instrument, other than a national standard or code of 16 practice declared by the Commission under section 38 of the NOHSC 17 Act, that was in force immediately before abolition day has effect on 18 and after that day, in relation to everything occurring on or after that 19 day, as if a reference in the instrument to the Commission were a 20 reference to the Commonwealth. 21 (2) A national standard or code of practice relating to an occupational 22 health and safety matter: 23 (a) that was declared by the Commission under section 38 of the 24 NOHSC Act; and 25 (b) that was in force immediately before abolition day; 26 has effect on and after that day as if it were a national standard or code 27 of practice made by the Australian Safety and Compensation Council 28 under the Standards Act. 29 8 Certificates relating to assets, liabilities and instruments 30 (1) An authorised officer may certify, in writing, that: 31 (a) an asset or liability specified in the certificate becomes or 32 became, because of item 3 of this Schedule, an asset or 33 liability of the Commonwealth; or 34 (b) an instrument specified in the certificate is a Commission 35 instrument. 6 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] Transitional and saving arrangements Part 2 1 (2) The certificate is, in all courts and for all purposes, prima facie evidence 2 of the matter stated in the certificate. 3 (3) If: 4 (a) under item 3 of this Schedule, an estate or interest in land 5 becomes an asset of the Commonwealth; and 6 (b) a certificate under subitem (1) to that effect is lodged with the 7 Registrar-General, Registrar of Titles or other proper officer 8 of the State or Territory in which the land is situated; 9 the officer with whom the certificate is lodged may deal with and give 10 effect to the certificate as if it were a grant, conveyance, memorandum 11 or instrument of transfer of the estate or interest to the Commonwealth, 12 duly executed under the laws in force in that State or Territory. 13 (4) If a document purports to be a certificate under subitem (1) or (3) 14 signed by a person purporting to be an authorised officer, judicial notice 15 must be taken of the signature of the person and of the fact that the 16 person is or was an authorised officer. 17 9 Final report and financial statements for Commission 18 (1) The Secretary must, as soon as practicable after, but not later than 90 19 days after, abolition day, prepare and give to the Minister: 20 (a) a report on the operations of the Commission during the 21 period (the closure period) commencing on 1 July 2005 and 22 ending immediately before abolition day; and 23 (b) financial statements that relate to the Commission during that 24 period in such form as the Minister administering the 25 Commonwealth Authorities and Companies Act 1997 26 approves. 27 (2) The Secretary must give a copy of the financial statements to the 28 Auditor-General before giving them to the Minister under subitem (1). 29 (3) As soon as practicable after, but not later than 90 days after, receipt of 30 the financial statements, the Auditor-General must report to the 31 Minister: 32 (a) whether, in the Auditor-General's opinion, the statements are 33 based on proper accounts and records; and 34 (b) whether the statements are in agreement with the accounts 35 and records and, in the Auditor-General's opinion, show National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 7 [Page Break] Part 2 Transitional and saving arrangements 1 fairly the financial transactions and state of affairs of the 2 Commission; and 3 (c) whether, in the Auditor-General's opinion, the receipt, 4 expenditure and investment of money, and the acquisition 5 and disposal of assets by the Commission during the closure 6 period were in accordance with the NOHSC Act; and 7 (d) such other matters arising out of the statements as the 8 Auditor-General considers should be reported to the Minister. 9 (4) The Secretary and the Auditor-General may, in discharging their 10 obligations under this item, rely on accounts and records of the 11 Commission that are in the possession of the Commonwealth or to 12 which the Secretary is allowed access, and on any other information 13 provided to a person who was a member of the Commission or who was 14 a member of the staff of the Commission. 15 (5) The Minister must cause copies of the reports and financial reports, 16 together with a copy of the report by the Auditor-General, to be laid 17 before each House of the Parliament within 15 sitting days of that 18 House after the receipt by the Minister. 19 10 Saving provision--rights of review of certain decisions 20 made before abolition day 21 (1) For the purpose of this item, and without limiting the effect of item 5 of 22 this Schedule, each decision of a kind referred to in subsection 63(4) of 23 the NOHSC Act that was made by the Commission before abolition day 24 has effect, on and after that day, as a decision of the Commonwealth. 25 (2) Despite the repeal of section 63 of the NOHSC Act, that section 26 continues in force, on and after abolition day, for the purpose of 27 enabling persons to seek review of decisions referred to in subsection 28 63(4) of that Act that were made before that day as if: 29 (a) that section had not been repealed; and 30 (b) each reference in that section, as so continued in force, to a 31 decision of the Commission were a reference to a like 32 decision made by the Commonwealth. 33 11 Saving provision--continuation of public consultations 34 underway on abolition day 35 If: 8 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] Transitional and saving arrangements Part 2 1 (a) before abolition day, the Commission published a notice 2 under subsection 38(4) of the NOHSC Act in relation to a 3 proposed national standard or code of practice; and 4 (b) by abolition day, the Commission has not declared the 5 proposed standard or code of practice; 6 then: 7 (c) in relation to any subsequent declaration of that standard or 8 code of practice by the Australian Safety and Compensation 9 Council--the publication of the notice by the Commission is 10 taken to have satisfied the Australian Safety and 11 Compensation Council's obligations under subsection 7(1) of 12 the Standards Act; and 13 (d) subsection 7(2) of the Standards Act applies in relation to any 14 representation made in accordance with the notice published 15 by the Commission as if the representation had been made in 16 accordance with steps taken under subsection 7(1) of that 17 Act. 18 12 Delegation of powers and functions conferred under this 19 Part 20 (1) The Minister may, by written instrument, delegate to: 21 (a) the Secretary or any other Agency Head within the meaning 22 of the Public Service Act 1999; or 23 (b) an SES employee or acting SES employee; 24 all or any of the powers and functions conferred on or acquired by the 25 Minister under this Part. 26 (2) The Secretary may, by written instrument, delegate to an SES employee 27 or acting SES employee the powers and functions of the Secretary 28 under this Part. 29 Note 1: The expressions SES employee, and acting SES employee are defined in section 17AA 30 of the Acts Interpretation Act 1901. 31 Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901. 32 13 Committees and working parties National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 9 [Page Break] Part 2 Transitional and saving arrangements 1 For the avoidance of doubt, all persons, whether members of the 2 Commission or not, who, immediately before the abolition day, are 3 members of a committee of the Commission or members of a working 4 party of such a committee, cease to hold office with effect from that 5 day. 6 14 Making of transitional etc. regulations 7 The Governor-General may make regulations prescribing matters of a 8 transitional nature (including prescribing any saving or application 9 provisions) relating to: 10 (a) the enactment of the Standards Act or of this Act; or 11 (b) the repeal of the NOHSC Act by this Act; or 12 (c) the amendments made by this Act. 10 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 2--Amendment of other Acts and 3 related saving provisions 4 5 Industrial Chemicals (Notification and Assessment) Act 1989 6 1 Paragraph 100B(1)(j) 7 Omit "the Account;", substitute "the Account.". 8 2 Paragraphs 100B(1)(k) and (l) 9 Repeal the paragraphs. 10 3 Subsection 100B(2) 11 Repeal the subsection. 12 4 Paragraph 100C(1)(d) 13 Omit "regulations; and", substitute "regulations.". 14 5 Paragraph 100C(1)(e) 15 Repeal the paragraph. 16 Occupational Health and Safety (Commonwealth 17 Employment) Act 1991 18 6 Subsections 70(2) and (3) 19 Repeal the subsections, substitute: 20 (2) Without limiting the generality of the matters that may be included 21 in codes of practice prepared by the Commission, the Commission 22 must, in respect of each advisory standard or code declared after 23 this subsection commences, as soon as practicable after that 24 advisory standard or code is declared, incorporate in a code of 25 practice prepared by the Commission for Ministerial approval 26 under this section so much of that advisory standard or code: 27 (a) as is capable of relating to Commonwealth employment; and 28 (b) as has not been applied, adopted or incorporated, with or 29 without modification, in regulations made for the purposes of 30 section 23. National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 11 [Page Break] 1 (3) A code of practice incorporating a document (other than an 2 advisory standard or code) that is prepared by a body may 3 incorporate that document as in force at the time the code of 4 practice is approved or as amended by the body from time to time. 5 7 Saving provision 6 Subsection 70(2) of the Occupational Health and Safety 7 (Commonwealth Employment) Act 1991, as in force immediately before 8 the commencement of item 6 of this Schedule, is to be taken to continue 9 in force for the purpose of incorporating, in a code of practice prepared 10 by the Commission for Ministerial approval under section 70 of that Act 11 as so in force, any national standard or a code of practice: 12 (a) that was declared under subsection 38(1) of the National 13 Occupational Health and Safety Commission Act 1985; and 14 (b) that it was not practicable to so incorporate before the repeal 15 of subsection 70(2). 16 8 Subsection 70(9) 17 Repeal the subsection, substitute: 18 (9) In this section: 19 advisory standard or code means a national standard, or a code of 20 practice, in relation to an occupational health and safety matter that 21 is declared by the Australian Safety and Compensation Council 22 under subsection 6(1) of the Australian Workplace Safety 23 Standards Act 2005, other than a standard or code: 24 (a) that is to be treated, by operation of subitem 7(2) of 25 Schedule 1 to this Act, as if it had been so declared; and 26 (b) that has not been amended or varied since it was first 27 required to be so treated. 28 Occupational Health and Safety (Maritime Industry) Act 29 1993 30 9 Subsections 109(2) and (3) 31 Repeal the subsections, substitute: 32 (2) Without limiting the generality of the matters that may be included 33 in codes of practice prepared by the Authority, the Authority must, 34 in respect of each advisory standard or code declared after this 12 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 [Page Break] 1 subsection commences, as soon as practicable after that advisory 2 standard or code is declared, incorporate in a code of practice 3 prepared by the Authority for Ministerial approval under this 4 section that advisory standard or code to the extent that: 5 (a) it has not been incorporated in regulations; and 6 (b) it is capable of relating to employment in the maritime 7 industry. 8 (3) A code of practice incorporating a document (other than an 9 advisory standard or code) that is prepared by a body may 10 incorporate that document as in force at the time the code of 11 practice is approved or as amended by the body from time to time. 12 10 Saving provision 13 Subsection 109(2) of the Occupational Health and Safety (Maritime 14 Industry) Act 1993, as in force immediately before the commencement 15 of item 9 of this Schedule, is to be taken to continue in force for the 16 purpose of incorporating, in a code of practice prepared by the 17 Authority for Ministerial approval under section 109 of that Act as so in 18 force, any national standard or a code of practice: 19 (a) that was declared under subsection 38(1) of the National 20 Occupational Health and Safety Commission Act 1985; and 21 (b) that it was not practicable to so incorporate before the repeal 22 of subsection 109(2). 23 11 Subsection 109(9) 24 Repeal the subsection, substitute: 25 (9) In this section: 26 advisory standard or code means a national standard, or a code of 27 practice, in relation to an occupational health and safety matter that 28 is declared by the Australian Safety and Compensation Council 29 under subsection 6(1) of the Australian Workplace Safety 30 Standards Act 2005, other than a standard or code: 31 (a) that is to be treated, by operation of subitem 7(2) of 32 Schedule 1 to this Act, as if it had been so declared; and 33 (b) that has not been amended or varied since it was first 34 required to be so treated. 35 Safety, Rehabilitation and Compensation Act 1988 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005 13 [Page Break] 1 12 Paragraph 89E(1)(f) 2 Repeal the paragraph, substitute: 3 (f) a member who, in the Minister's opinion, represents the 4 Australian Safety and Compensation Council. 14 National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 No. , 2005