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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SAFE WORK AUSTRALIA (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
SAFE WORK AUSTRALIA (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2008
OUTLINE
The Safe Work Australia (Consequential and Transitional Provisions) Bill
2008 is part of a package of legislation which implements the Australian
Government's decision to replace the Australian Safety and Compensation
Council (ASCC).
The Bill will repeal the Australian Workplace Safety Standards Act 2005 and
will deal with consequential and transitional matters arising from that
repeal and from the enactment of the Safe Work Australia Act 2008.
FINANCIAL IMPACT STATEMENT
The proposed amendments are budget-neutral.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Bill, when passed, to be cited as the
Safe Work Australia (Consequential and Transitional Provisions) Act
2008.
Clause 2 - Commencement
2. This clause specifies when the various provisions of the proposed
Act are to commence. Sections 1 to 3 and anything in the Act not
covered by the table in
clause 2 commence on Royal Assent. Schedules 1 to 3 commence on
the same day as section 5 of the Safe Work Australia Act 2008
commences. Section 5 of that Act establishes Safe Work Australia
and will commence on Proclamation or, 6 months after the day on
which that Act receives the Royal Assent, whichever occurs first.
Clause 3 - Schedule(s)
3. This clause provides that the substantive measures are contained in
Schedules to the Bill.
SCHEDULE 1 - MAIN AMENDMENTS
Australian Workplace Safety Standards Act 2005
Item 1 - The whole of the Act
4. This item repeals the Australian Workplace Safety Standards Act 2005.
The effect of this repeal is to abolish the framework provided by that
Act for the declaration of occupational health and safety (OHS) national
standards and codes of practice by the Australian Safety and Compensation
Council (ASCC). The ASCC will be replaced by Safe Work Australia (SWA),
a body established under the Safe Work Australia Act 2008. SWA's
functions will include the declaration of national standards and codes of
practice relating to OHS on an interim basis (see items 2-4 of Schedule
3).
5.
6. SCHEDULE 2 - CONSEQUENTIAL AMENDMENTS
7. Schedule 2 of the Bill makes consequential amendments to the
Occupational Health and Safety Act 1991, the Occupational Health and
Safety (Maritime Industry) Act 1993 and the Safety, Rehabilitation and
Compensation Act 1988. These amendments are a consequence of the
commencement of the Safe Work Australia Act 2008.
Occupational Health and Safety Act 1991
Item 1 - Subsection 70(9) (definition of advisory standard or code)
8. This item substitutes a new definition of 'advisory standard or code' to
mean a national standard, or code of practice, that is declared by SWA
under item 2 of Schedule 3 to the Safe Work Australia (Consequential and
Transitional Provisions) Act 2008. The previous definition referred to a
national standard or code of practice that had been declared by the ASCC.
Item 2 - Application of item 1
9. This item makes clear that a pre-existing advisory standard or code,
that remains unamended, is not to be taken to be a new advisory standard
or code merely because of the change in definition. The effect of this
provision is that these advisory standards and codes do not need to be
readopted by the Safety, Rehabilitation and Compensation Commission.
Occupational Health and Safety (Maritime Industry) Act 1993
Item 3 - Subsection 109(9) (definition of advisory standard or code)
10. Item 3 is similar to item 1. It substitutes a new definition of
'advisory standard or code'.
Item 4 - Application of item 3
11. Item 4 is similar to item 2. The effect of this provision is that
these advisory standards and codes do not need to be readopted by the
Seafarers Safety, Rehabilitation and Compensation Authority.
Safety, Rehabilitation and Compensation Act 1988
Item 5 - Paragraph 89E(1)(f)
12. Section 89E of the Safety, Rehabilitation and Compensation Act 1988
(SRC Act) provides for the constitution of the Safety,
Rehabilitation and Compensation Commission (the Commission).
Paragraph 89E(1)(f) currently provides for a member who, in the
Minister's opinion, represents the ASCC, to be a member of the
Commission. This item substitutes a new paragraph that provides
for the Chief Executive Officer of SWA to be a member of the
Commission.
Item 6 - Paragraph 89E(3)
13. This item repeals the definition of 'prescribed staff member' in
subsection 89E(3) of the SRC Act. This provision is otiose following the
repeal of the National Occupational Health and Safety Commission Act 1985
(NOHSC Act).
Item 7 - Paragraph 89H(2)
14. This item amends subsection 89H(2) of the SRC Act as a consequence of
the amendment made by item 6. The effect of the amendment is to permit a
staff member engaged by SWA under the Public Service Act 1999 to be
appointed as a deputy of the Chief Executive Officer of SWA as a member
of the Commission.
SCHEDULE 3 - TRANSITIONAL PROVISIONS
Item 1 - Transfer of national standards and codes of practice
15. This item provides that a national standard or code of practice that is
in force under the Australian Workplace Safety Standards Act 2005
immediately before the commencement of this item, is taken, on and after
that commencement, to be a national standard or code of practice declared
by SWA under item 2 of this Schedule.
16. National standards and codes of practice that are in force under the
Australian Workplace Safety Standards Act 2005 may also include a
national standard or code of practice that was declared by the National
Occupational Health and Safety Commission under section 38 of the
repealed National Occupational Health and Safety Commission Act 1985: see
subsection 7(2) of the National Occupational Health and Safety Commission
(Repeal, Consequential and Transitional Provisions) Act 2005.
Item 2 - Function and power to declare national standards and codes of
practice
17. This item sets out the functions and powers of SWA to declare national
standards and codes of practice relating to OHS matters. SWA will
perform this function on an interim basis only: see item 4. This item
also sets out certain procedural requirements relating to the
determination of national standards and codes of practice. These include
consultation and publication requirements. Item 3 deals with the
consultation process.
18. Sub-item 2(6) also specifies that a national standard or code of
practice is of an advisory character only and not a legislative
instrument. Separate legislative action by Commonwealth, State and
Territory governments is required to implement the standards and codes of
practice within their jurisdiction. This provision is merely declaratory
of the law and is included to assist readers. It does not amount to an
exemption from the Legislative Instruments Act 2003.
Item 3 - Steps preparatory to declaring national standards and codes of
practice
19. This item sets out the consultation requirements that must be met
before SWA can declare national standards and codes of practice.
20. Sub-item 3(1) requires SWA to publish a notice in the Gazette inviting
public comments on a proposed standard or code.
21. Sub-item 3(2) specifies the requirements to be contained within the
notice. People must be given at least 4 weeks from the date of the
notice in which to provide comment.
22.
23. Sub-items 3(3) to (5) set out an additional mechanism by which SWA may
invite further public comment on a proposed standard or code. Where it
does so, sub-item 3(4) requires SWA to notify persons who had previously
made comments and provide them with an opportunity to revise their
comments.
24. Sub-item 3(6) requires SWA to consider any comments made on a proposed
standard or code and gives SWA the discretion to alter or revise the
proposed standard or code.
Item 4 - Cessation of function and power to declare national standards
and codes of practice
25. This item provides that SWA's function and powers to declare national
standards and codes of practice as provided by items 2 and 3 of this
Schedule will cease on and from 1 January 2011, unless regulations
prescribe an earlier or later date.
26. However, a national standard or code of practice declared by SWA under
item 2 of this Schedule that is in force immediately before the cessation
date continues in force on and after the cessation date.
Item 5 - First plans of Safe Work Australia
27. Item 5 requires SWA to prepare the first strategic and first
operational plan as soon as practicable after the commencement of
sections 27 and 29 of the Safe Work Australia Act 2008.
Item 6 - Requirement for meetings of Safe Work Australia in the first
financial year
28. Paragraph 34(2)(b) of the Safe Work Australia Act 2008 will require the
Chair to convene at least 3 meetings each financial year. Item 6
provides that if the Act does not commence on the first day of a
financial year, that requirement will not apply in relation to the first
financial year.
Item 7 - Regulations
29. This item enables the Governor-General to make regulations prescribing
matters required or permitted by this Act to be prescribed, or necessary
or convenient to be prescribed for carrying out or giving effect to this
Act. This includes regulations prescribing matters of a transitional
nature relating to the amendments or repeals made by this Act or the
enactment of this Act or the Safe Work Australia Act 2008.