EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 285
Issued by the authority of the Minister for Employment and Workplace Relations.
Australian Workplace Safety Standards Act 2005
Australian Workplace Safety Standards Regulations 2005
The Australian Workplace Safety Standards Act 2005 (the Act) provides a framework for the declaring of occupational health and safety national standards and codes of practice by the Australian Safety and Compensation Council (ASCC). The ASCC replaced the National Occupational Health and Safety Compensation Council which will be abolished under the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Act 2005 at the same time as the operative provisions of the Act commence by Proclamation.
Section 9 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations set out further particulars relating to publication and consultation requirements to be met by the ASCC when declaring national standards and codes of practice.
Regulation 4 requires the ASCC to publish certain details in the Commonwealth Gazette when declaring a national standard or code of practice, including:
- the title and objective of the proposed national standard or code of practice; and
- information as to how interested persons may obtain a copy of the proposed national standard or code of practice.
Subregulation 5(1) requires the ASCC before declaring a national standard or code of practice to publish a notice in the Commonwealth Gazette to enable interested persons to make representations. Paragraph 5(1)(b) allows the ASCC to publish the notice in other places such as a daily newspaper in a State or Territory. Subregulation 5(2) lists what the notice must contain.
Under Subregulation 5(3) the ASCC is able to seek additional representations on the proposed national standard or code of practice. If the ASCC decides to seek additional representations under subregulation 5(3) it must allow a period of not less than four weeks for further representations to be made. Subregulation 5(4) requires the ASCC to notify persons who have already made representations and invite them to make additional representations. The ASCC is only required to notify those persons who have made representations once in relation to the same national standard or code of practice.
Subsections 4(1) and 4A(2) of the Acts Interpretation Act 1901, read together, provide that regulations may be made between the passing and commencement of an Act, as long as such regulations do not commence before the Act upon which they rely for their authority. The Act received Royal Assent on 15 November 2005 and sections 1 and 2 of the Act commenced on that date. Sections 3 to 9 of the Act commence on 1 January 2006.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
No consultation has taken place in relation to the Regulations as extensive consultation was undertaken in regards to the developing of the Bill, including consultation with key stakeholders such as Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions. It was not considered that further consultation is required as the Bill was also considered by the Committee on Industrial Legislation prior to introduction and the Regulations are machinery in nature.
The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.
The Regulations commence on 1 January 2006, to coincide with the commencement of sections 3 to 9 of the Act.
Overview
The Australian Workplace Safety Standards Act 2005 was enacted to provide a legislative framework for the declaration of occupational health and safety national standards and codes of practice. This Act was introduced to address the need for a unified approach to workplace safety standards across Australia, replacing the previously existing National Occupational Health and Safety Compensation Council with the Australian Safety and Compensation Council (ASCC). The Act was passed by the Parliament of Australia and received Royal Assent on 15 November 2005, with certain sections commencing on that date and others on 1 January 2006. The policy objective of the Act is to ensure that the ASCC can effectively establish and implement national standards and codes of practice that promote workplace safety and health, thereby reducing occupational injuries and diseases. The Australian Workplace Safety Standards Regulations 2005 further detail the process for publishing and consulting on these standards and codes of practice.
Scope and Application
The Australian Workplace Safety Standards Act 2005 establishes a framework for the declaration of national standards and codes of practice for occupational health and safety by the Australian Safety and Compensation Council (ASCC). The Act applies to the ASCC, which replaced the National Occupational Health and Safety Compensation Council, and is effective from the commencement of the Act on 1 January 2006. The Act's geographic reach is national, applying across Australia, and it extends to any entity involved in occupational health and safety practices. The Act allows the Governor-General to make regulations necessary for its implementation, with the Australian Workplace Safety Standards Regulations 2005 detailing specific procedures for the ASCC when declaring national standards and codes of practice. These regulations include requirements for publication and consultation, such as publishing details of the proposed standards in the Commonwealth Gazette and allowing a period for public representation, with an option to seek additional representations after an initial notice period. The Regulations do not specify any exclusions or thresholds and were not subject to further consultation as extensive stakeholder consultation had already occurred during the Bill's development.
Key Provisions
The Australian Workplace Safety Standards Act 2005 (the Act) primarily provides a framework for the declaration of occupational health and safety national standards and codes of practice by the Australian Safety and Compensation Council (ASCC) (s 3). The ASCC, which replaced the National Occupational Health and Safety Compensation Council, has the authority to establish these standards and codes, which are intended to improve workplace safety across Australia. The Act allows for the Governor-General to make regulations that prescribe matters necessary for implementing the Act (s 9).
The Act imposes several obligations on the ASCC, particularly concerning the process of declaring national standards and codes of practice. According to Regulation 4 of the Australian Workplace Safety Standards Regulations 2005, the ASCC must publish specific details in the Commonwealth Gazette when declaring a new national standard or code of practice. This includes the title and objective of the proposed standard or code, as well as information on how interested parties can obtain a copy of the proposed document. Furthermore, under Subregulation 5(1), the ASCC is required to publish a notice in the Commonwealth Gazette, and possibly in other places such as daily newspapers in a State or Territory, to invite interested parties to make representations on the proposed standard or code. Subregulation 5(2) details what the notice must contain, while Subregulation 5(3) allows the ASCC to seek additional representations if necessary, with a minimum period of four weeks allowed for further submissions (Subregulation 5(3)). Subregulation 5(4) mandates that the ASCC notify those who have already made representations and invite them to submit additional comments.
Failure to comply with the obligations set out in the Act and Regulations could lead to various consequences. While the Act and Regulations do not explicitly outline specific offences or penalties for non-compliance, it is implied that not adhering to the prescribed processes could undermine the effectiveness of the declared national standards and codes of practice, potentially leading to unsafe working conditions. However, the precise civil or criminal consequences for such non-compliance are not detailed within the text provided.