EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 63
Issued by the authority of the Minister for Employment and Workplace Relations
Safe Work Australia (Consequential and Transitional Provisions) Act 2008
Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010
Schedule 3 to the Safe Work Australia (Consequential and Transitional Provisions) Act 2008 (the CTP Act) provides Safe Work Australia (SWA) with the ability to declare national standards and codes of practice relating to work health and safety. Before declaring a national standard or code of practice, Schedule 3 requires SWA to complete certain preparatory steps. These steps are primarily concerned with consultation.
Subitem 7(1) of Schedule 3 to the CTP Act provides that the Governor-General may make regulations prescribing matters: required or permitted by the CTP Act; or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Further subitem 7(2) provides that regulations may be made prescribing matters of a transitional nature relating to the amendments or repeals made by the CTP Act.
The preparatory steps imposed on SWA in Schedule 3 replicate the preparatory processes previously adopted by SWA’s predecessor, the Australian Safety and Compensation Council (the ASCC). Schedule 3 does not, however, contain provisions that address the situation where the ASCC had completed various preparatory steps but had not had the opportunity to declare a national standard or code of practice before being superseded by SWA.
The Regulations amend the operation of Schedule 3 to the CTP Act by providing that, where the ASCC had taken steps preparatory to declaring national standards and codes of practice, those steps may be attributed to SWA.
In the absence of the Regulations, Schedule 3 would require SWA to repeat any preparatory steps previously undertaken by the ASCC, resulting in unnecessary, and potentially costly, duplication.
Details of the Regulations are included in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
A preliminary assessment was made under the Office of Best Practice Regulation guidelines which indicated that a Regulation Impact State was not required.
The Regulations have no compliance cost to business or impact on business and individuals or the economy. Safe Work Australia was consulted on the making of the Regulations.
ATTACHMENT
Details of the Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010.
Regulation 2 – Commencement
This regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Definitions
This regulation provides for the definitions of ‘Act’ and ‘commencement day.’
Regulation 4 – Transitional provisions – actions taken by Australian Safety and Compensation Council before commencement day
This regulation amends the operation of Schedule 3 to the CTP Act by providing that, where the Australian Safety and Compensation Council (ASCC) had taken steps preparatory to declaring national standards or codes of practice, those steps may be attributed to SWA.
Subregulation 4(1) provides that regulation 4 applies if:
- before 1 November 2009, the ASCC had undertaken any action under the Australian Workplace Safety Standards Act 2005 in relation to the declaration of a national standard or code of practice (standard or code); and
- the ASCC had not declared the standard or code before 1 November 2009; and
- Safe Work Australia (SWA) now wishes to declare a standard or code that is the same or substantially the same as that on which the ASCC worked.
Subregulation 4(2) provides that for the purposes of items 2 and 3 of Schedule 3 to the CPT Act, and having regard to paragraph 4(1)(c), action taken by the ASCC preparatory to declaring a standard or code is to be attributed to SWA.
Overview
The Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010 were enacted to address the transitional issues arising from the establishment of Safe Work Australia (SWA) as the successor to the Australian Safety and Compensation Council (ASCC). The Regulations were made under the authority of the Minister for Employment and Workplace Relations and are a legislative instrument for the purposes of the Legislative Instruments Act 2003. The policy objective of these Regulations is to ensure a smooth transition in the processes of declaring national standards and codes of practice relating to work health and safety, avoiding unnecessary duplication of efforts and costs. The Regulations amend Schedule 3 of the Safe Work Australia (Consequential and Transitional Provisions) Act 2008 by allowing SWA to attribute to itself any preparatory steps taken by the ASCC before the commencement of the Act on 1 November 2009, provided that SWA intends to declare a standard or code that is the same or substantially the same as that on which the ASCC had worked. This ensures that SWA can proceed without repeating preparatory steps already undertaken by the ASCC, thereby maintaining efficiency and continuity in the regulatory process.
Scope and Application
The Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010 apply to transitional provisions relating to the actions taken by the Australian Safety and Compensation Council (ASCC) before the commencement of the Safe Work Australia (Consequential and Transitional Provisions) Act 2008. The Act provides Safe Work Australia (SWA) with the ability to declare national standards and codes of practice relating to work health and safety, and the Regulations address the transitional matters arising from the replacement of the ASCC by SWA. These Regulations are designed to avoid unnecessary duplication of preparatory steps that would otherwise be required under the Act. The Regulations apply nationally as they are made under Commonwealth legislation. There are no stated exclusions or exemptions within the Regulations themselves, but they do specify that actions taken by the ASCC before a certain date can be attributed to SWA under certain conditions. The Regulations are subordinate instruments that extend the application of the CTP Act by clarifying the transitional arrangements for work health and safety standards and codes of practice.
Key Provisions
The Safe Work Australia (Consequential and Transitional Provisions) Regulations 2010 (the Regulations) are designed to facilitate the transition of responsibilities from the Australian Safety and Compensation Council (ASCC) to Safe Work Australia (SWA). Regulation 4 in particular is critical as it allows SWA to attribute preparatory steps taken by the ASCC towards declaring national standards or codes of practice. This means that if the ASCC had initiated actions towards a standard or code before SWA was established, those actions can be credited to SWA, thereby avoiding unnecessary duplication of efforts (Reg. 4(1), (2)).
The Regulations impose specific obligations on SWA. Most importantly, they must identify instances where the ASCC had taken preparatory steps before the transition date of 1 November 2009, and ensure that these steps are acknowledged and integrated into SWA’s processes for declaring new standards or codes (Reg. 4(1), (2)). This requirement ensures that SWA can continue work on standards or codes without restarting the preparatory phase, thus saving time and resources.
Non-compliance with the Regulations could result in inefficiencies and potential duplication of efforts, as SWA would need to restart preparatory steps for standards or codes already initiated by the ASCC. However, the Regulations do not specify any direct penalties or legal consequences for non-compliance, focusing instead on streamlining the transition process to maintain continuity in work health and safety standards.
The Regulations themselves do not introduce new compliance costs or economic impacts, as they aim to eliminate redundant processes rather than impose additional burdens. The consultation with Safe Work Australia during the drafting of the Regulations ensures that the measures are practical and aligned with the goals of the Safe Work Australia (Consequential and Transitional Provisions) Act 2008.
Overall, the Regulations serve a transitional purpose, ensuring that the shift from ASCC to SWA is as seamless as possible without unnecessary repetition of preparatory work. This approach allows SWA to focus its resources on developing and implementing effective work health and safety standards and codes.