Australia has nine OHS jurisdictions, with a multitude of laws relating to health and safety in the workplace. This includes ten specific OHS statutes (six state Acts, two territory Acts and two Commonwealth Acts) and over 50 other legislative instruments applying to offshore petroleum, mining, construction, public health (i.e. radiation, agriculture and veterinary chemicals), public safety (i.e. amusement equipment, electrical safety, plumbing and gas safety, machinery, scaffolding and lifts) and statutes relating to explosives, transport of dangerous goods, radioactive materials and many more.
The general Australian OHS laws in each jurisdiction are based on the ‘Robens model’. The recommendations made by Robens’ Committee3 in the United Kingdom (UK) resulted in widespread legislative reform in OHS across the UK and other countries whereby OHS laws shifted from detailed, prescriptive standards to a more self-regulatory and performance-based approach.
The Robens model includes two principal elements: a single umbrella statute containing broad ‘general duties’ based on the common law duty of care; and the incorporation of ‘self-regulation’ by empowering duty holders, in consultation with employees, to determine how they will comply with the general duties. Prescriptive requirements were replaced with a three tiered approach involving regulations and codes of practice designed to support the general duties in the Act. Robens also recommended the use of improvement and prohibition notices in compliance activities as new administrative sanctions to enable regulators to contribute to the self-regulatory culture.
In the past decade, all jurisdictions have undertaken major reviews of their OHS laws, with the most recent, publicly available reviews being completed in New South Wales (NSW), the Northern Territory (NT) and the Australian Capital Territory (ACT).4 The reviews in the Territories resulted in the introduction of new OHS Acts.5
Although they have had various objectives, the reviews have all examined the relevant OHS laws and addressed many of the matters that are also contained in the terms of reference for our review:
Ensuring the general duties include the types of work arrangements that fall outside the traditional employer and employee relationship;
Providing greater clarity for duty holders and regulators in defining key concepts;
Increasing penalties and introducing additional enforcement measures such as enforceable undertakings; and
Strengthening provisions relating to consultation, participation and representation.
In some jurisdictions, reviews have also examined consolidating industry specific legislation under the OHS Act.6 Following the recent review of the NT legislation, the new Workplace Health and Safety Act 2007 was expanded to include mine safety responsibilities and dangerous goods regulation.
Harmonising OHS legislation
The National OHS Strategy includes ‘a nationally consistent regulatory framework’ as one of nine areas requiring national action.7 While there has been some progress towards achieving consistency in various areas of OHS regulation, there are material differences between the principal OHS Acts, as we identify in this report.
The importance of harmonised OHS laws has also been recognised by the Council of Australian Governments (COAG), the Productivity Commission (PC) and the States and Territories in their work in this area to date.
Our review is part of the broader COAG National Reform Agenda aiming to reduce regulatory burdens and create a seamless national economy. Since February 2006, when COAG agreed to improve the development and uptake of national OHS standards8, the Australian Safety and Compensation Council (ASCC) has been reviewing the national OHS framework to achieve greater national consistency and prioritising areas for harmonisation.
At its meeting on 1 February 20089, the WRMC agreed that the use of model legislation is the most effective way to achieve harmonisation of OHS laws. Ministers supported the Australian Government’s intention to initiate a review to develop model legislation and agreed to settle the terms of reference for the review, including priority areas for attention.
The commitment of all jurisdictions to adopt model OHS laws by 2011 was formalised when COAG signed an Intergovernmental Agreement10 which sets out the principles and processes for co-operation between the Commonwealth, States and Territories to implement uniform OHS legislation complemented by consistent approaches to compliance and enforcement.
The new body which is to replace the ASCC, Safe Work Australia, will develop the model Act based on the WRMC’s decisions on our recommendations. Safe Work Australia will also develop model regulations to support the model OHS Act.
In conducting our review, we became aware of other work in related areas of COAG’s reform agenda which may affect the OHS legislative framework over the next few years. This includes the regulation of chemicals and plastics, mine safety laws, energy safety, rail, road and maritime safety regulation.11 We have contacted the relevant persons responsible for these areas to advise them of our work.
The scope of the Review
The terms of reference require us to examine the principal OHS legislation in each state, territory and Commonwealth jurisdiction for the purpose of making recommendations on the optimal content of a model OHS Act that is capable of being adopted in all jurisdictions.12 Our recommendations are to be made in two stages, to allow matters critical for harmonisation to be considered by the WRMC as a matter of priority.13
Although the scope of our review is limited to the content of a model OHS Act, we have kept in mind the interdependence of the principal OHS Acts with their subordinate instruments, as well as the overlap with other health and safety laws. We examined the breadth of regulation required to support a model OHS Act, but have not covered the specific detail found in OHS regulations, codes of practice and guidelines. We also have not covered the content of other health and safety laws, but have examined the extent to which such laws could be accommodated under a model OHS Act. These matters are to be discussed in the second report, in accordance with the terms of reference.
As mentioned in the preface, it will be important to consider the two reports together. The following table outlines the full scope of the review and which areas will be addressed in each report:
