Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

EXPLANATORY STATEMENT

Issued by the Authority of the Chief of the Defence Force

Pursuant to subsection 12D(2) of the Work Health and Safety Act 2011 (‘the Act’), the Chief of the Defence Force may, by instrument in writing, declare that specified provisions of the Act do not apply, or apply subject to such modifications as are set out in the declaration, in relation to a specified activity, a specified Australian Defence Force member, or Australian Defence Force members included in a specified class of such members.

Subsection 12D(3) requires that such a declaration may only be made with the approval of the Minister for Employment and Workplace Relations and subsection 12D(4) specifies that, in exercising the power under subsection 12D(2), the Chief of the Defence Force must take into account the need to promote the objects of the Act to the greatest extent consistent with the maintenance of Australia’s defence.

A declaration made under subsection 12D(2) does not limit the generality of subsection 12D(1).

Purpose of the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

The Australian Government has decided that Australia's defence policy should be founded on the principle of self-reliance in the direct defence of Australia and its strategic interests, but with a capacity to do more when required, consistent with those strategic interests that we might share with others, and within the limits of our resources. This objective requires the maintenance of alliances and international defence relationships that enhance our own security and allows us to work with others when we need to pool our resources.

The maintenance of Australia’s defence is therefore a broad, complex business. The 2020 Defence Strategic Update and 2020 Force Structure Plan provide an indication of the range of activities that the Australian Government requires the Australian Defence Force to undertake in Australia’s defence. First and foremost, the Australian Defence Force is required to defend Australia. This includes defending Australia against direct armed attacks by foreign state and non-state actors with the capacity to employ strategic capabilities, including weapons of mass destruction. However, the Australian Defence Force is also given a vital and unique role in supporting domestic security, including border protection and emergency response efforts.

After ensuring the defence of Australia, the second priority task for the Australian Defence Force is to contribute to broader global stability and security. This involves conducting military operations in coalition with others as required to protect our nationals, provide disaster relief and humanitarian assistance and, on occasion, by way of stabilisation interventions.

The next priority task for the Australian Defence Force is to contribute to military contingencies in bordering regions, including assisting partner nations to meet external challenges and meeting our alliance obligations to the coalition governments as determined by the Australian Government. This involves conducting combined exercises in coalition with international allies as required, and other forms of defence cooperation.

Finally, the Australian Defence Force has to be prepared to contribute to military contingencies in the rest of the world, in support of efforts by the international community to uphold global security and a rules-based international order, where our interests align and where we have the capacity to do so.

The Australian Defence Force’s military operational objectives necessarily require that Defence personnel be exposed to high-risk and complex environments and activities, and compliance with certain work health and safety requirements set out in the Act is not safe or reasonably practicable in a military operational context. This Work Health and Safety Act 2011 (application to Defence activities and Defence members) 2023 (this Declaration) is intended to continue in force some long-standing exemptions from certain work health and safety requirements for Defence members when undertaking specified activities where it is recognised that military requirements and the defence of Australia’s national interest must take priority over ordinary workplace health and safety practices.

The concept of specified activities in the Declaration is intended to capture hazardous overseas military activities, for example, combat operations and UN peace-enforcement and peace-keeping commitments.

Requirement for Exemptions for certain Defence Activities and Defence Members

After consulting with, and obtaining the approval of, the Minister for Employment and Workplace Relations, the Chief of the Defence Force declares that the following sections do not apply to Australian Defence Force warlike and non-warlike operational deployments:

38 Incident notification

39 Site preservation

In respect to a particular overseas operational deployment, the officer appointed as Chief of Joint Operations will be responsible for making the initial determination for the purposes of this Declaration whether an overseas operational deployment will be considered warlike or non-warlike.

Further, after consulting with, and obtaining the approval of, the Minister for Employment and Workplace Relations, the Chief of the Defence Force declares that the following sections do not apply to Australian Defence Force members:

47-49 Consultation with workers

50-79 Health and safety representatives and work groups

84-89 Right to cease or direct cessation of unsafe work

Section 38 of the Act provides for the immediate notification and reporting of the death, or serious personal injury or illness of a person, or a dangerous incident, to the Commonwealth regulator, Comcare. The effect of this Declaration is that, in relation to Australian Defence Force members and Defence civilians deployed in an overseas warlike or non-warlike operation, there is no requirement to immediately report the death, or serious personal injury or illness of a person, or a dangerous incident, to Comcare.

The nature of military activities in warlike or non-warlike operations means that, absent this Declaration, section 38 creates a significant reporting obligation on the Australian Defence Force in terms of the number of incidents requiring notification to Comcare. For example, in an armed conflict situation, the Australian Defence Force, consistent with the principle of military necessity, may deliberately cause the death or serious injury of other persons, expose Australian Defence Force members, Defence civilians and others to the risk of death or serious injury caused by others, and encounter dangerous incidents created by the acts of others. Moreover, in both warlike and non-warlike operations, dangerous incidents can be expected to be a routine characteristic of these operations.

In such military activities, the Australian Defence Force also faces significant challenges complying with immediate reporting. For example, where Australian Defence Force members or Defence civilians are embedded with coalition forces or on exchange with foreign forces overseas (whether on operations, exercises or other activities), direct communications with its members can sometimes be intermittent, limited to certain types of technology or reliant entirely upon the foreign forces’ lines of communication. Another example is where Australian Defence Force units must by necessity maintain radio communication silence and report only periodically due to the nature of the activity then engaged in. In the latter case, the Australian Defence Force normally requires reporting as soon as practicable.

In relation to the activities in question, the requirements for notification and reporting to Comcare would also impose substantial clerical workloads on troops deployed with limited administrative resources. In addition to the potential physical difficulties of reporting the incident within the timeframe, to do so could entail a decrease in the safety of working conditions for these personnel.

The Declaration notwithstanding, all Australian Defence Force notifiable incidents will continue to be centrally reported within Defence and, where appropriate, internally investigated. Records of these reports and investigations are available to Comcare on request.

Section 39 of the Act establishes the duty, as far as is reasonably practicable, to preserve the incident site until an inspector arrives or directs otherwise. The result of this Declaration is that, in relation to Australian Defence Force members and Defence civilians in an overseas warlike or non-warlike operation, there is no requirement to preserve the incident site.

The rationale for the Declaration is twofold. First, compliance with section 39 presents a significant challenge for the Australian Defence Force on any activity in a foreign State particularly where conflict or sporadic acts of violence is occurring. For example, where the Australian Defence Force undertakes an evacuation in a foreign State, it will invariably not have effective control over the territory where a notifiable incident occurs, particularly if the evacuation is occurring in a non-permissive hostile environment. There will therefore be significant difficulty in preserving an incident site where ‘management or control’ of the site by the Australian Defence Force may be tenuous, transitory and/or regulated by international arrangement or agreement and it is not desirable to further increase risk to Australian Defence Force members, Defence civilians and their evacuees by asking them to deliberate upon whether they can or cannot secure an incident site.

Sections 47-49 of the Act impose the duty for a business to consult with their workers on health and safety matters. Sections 50-79 make provision for the establishment and operation of health and safety representatives and work groups. Sections 84-89 of the Act provide the right to cease or direct cessation of unsafe work.

The consequence of this Declaration is that Australian Defence Force members will not have health and safety representatives nor establish work groups in their workplaces regardless of the location of that workplace. Additionally, Australian Defence Force members do not have the right to cease work where they are concerned about risks to their health or safety, including from an immediate or imminent exposure to a hazard.

The requirements for formal consultation with Australian Defence Force members in a workplace bargaining framework, coupled with the powers granted to health and safety representatives and workers generally, are considered inimical to the discipline of the Australian Defence Force and the nature of military service. While Australian Defence Force commanders will consult where time permits with their subordinates before making any decision, on occasion this is not possible due to the nature of military activities and the legal obligation on Australian Defence Force members to obey the lawful orders of superior officers. While risk analysis and force protection are fundamental and inherent to the way the Australian Defence Force plans and conducts military activities, the exigencies of military service may ultimately require Australian Defence Force members to be ordered into harm’s way in Australia’s defence. It would be contrary to the public interest to permit them to be able to cease or direct cessation of work if they disagreed with the decision of their superior officer on the basis of risk to health or safety.

Work Health and Safety on Defence Operations, Exercises and Activities

Australian Defence Force members are required to comply with reasonable health and safety instructions, policies and procedures issued by the Australian Defence Force. Defence is committed to ensuring no person will suffer a serious preventable work related injury or illness. The protection of its personnel is a paramount consideration. This includes those working in Australia, deployed in an operational environment or carrying out training exercises whether in Australia or overseas. To that end, the work health and safety risks and hazards which are generally addressed by the prescribed provisions, as displaced by way of this Declaration, are mitigated by internal Defence systems and policies applicable to Australian Defence Force members and Defence civilians.

The Defence Safety Manual and associated policies establish a Work Health and Safety Management System (WHSMS) that applies to Australian Defence Force members and Defence civilians. In relation to Australian Defence Force operations, exercises and activities, the Joint Operations Command (JOC) Group has established separate Work Health and Safety (WHS) policies intended to balance a complicated set of risks and hazards in a military operational environment, while maintaining a safe and healthy working environment.

In accordance with Defence WHS Policy, JOC Group maintains a WHSMS known as JOCsafe. This system provides direction regarding the implementation of WHS systems across the JOC Group, and refers back to the Defence WHSMS. JOCsafe has separate procedures for WHS on operations, exercises and activities (JOCsafe Operations Procedure). The JOCsafe Operations Procedure deals with WHS risks in a manner appropriate in light of the nature and complexity of military operations, and the fact that in these environments personnel are at times required to operate in hazardous conditions with potential extreme risk. For example, under the JOCsafe Operations Procedure, Commanders must ensure that all personnel receive a location specific WHS induction briefing relevant to the operation, and the briefing must include (at a minimum):

health threats;
hazards and risks;
relevant safety plans; and
Host Nation WHS arrangements.

These requirements are supported by a Directive from the Chief of Joint Operations relating to WHS on operations and exercises, which requires that WHS must be incorporated into the planning and conduct of Australian Defence Force operations, exercises and activities and therefore Commanders are required to develop a WHS Plan which includes:

consultation and communication arrangements;
responsibilities (Command, specialist WHS personnel, workers);
emergency procedures (including injury management and incident notification and reporting);
hazard and risk management;
review of WHS performance; and
governance arrangements.

The unique nature of military service means that at times ADF members will be required to obey commands that are lawful, but may have an adverse impact on their health and safety. This is consistent with the concept of military service. ADF command and discipline structures are essential in the operating environments of the ADF, including during armed conflicts.

The detailed, tailored and comprehensive WHS policies for ADF members contained in the JOCsafe Operations Procedure are to minimise avoidable WHS risks to the greatest extent possible, notwithstanding the nature of military service. Further, there are existing policies and processes available for ADF members who have a concern or complaint related to their service, for example, if they are given a direction or command they feel unnecessarily or unreasonably places them at risk of injury or death.

Redress of Grievance (ROG) is a formal complaint process under Part 7 of the Defence Regulation 2016 by which Defence members may complain about a decision, act or omission relating to their service in the ADF. The complaint process provides for initial consideration by a Commanding Officer or an Authorised Complaint Recipient and, if necessary, further independent consideration by the Inspector-General of the Australian Defence Force (IGADF). If the member remains dissatisfied, they may then choose to make a complaint to the Defence Force Ombudsman which is an external and independent review body.

Further, if a Commanding Officer does not comply with WHS requirements under the JOCsafe Operations Procedure, including the planning and consultation obligations on operations as set out in the Directive from the Chief of Joint Operations, this could carry significant consequences up to and including imprisonment under military discipline law.

At times, Defence will require its personnel to operate in environments of extreme risk and hazard due to the nature of military activities. ADF members may not have a statutory right to cease unsafe work under the WHS Act, but there are other alternative review and complaint mechanisms available to them which are more appropriate in the military context.

Defence is committed to managing risk to ensure that when risks are taken they are understood, accounted for, and integrated into its plans and the way it conducts military activities. This Declaration is intended to preserve the key exemptions that have applied to Defence activities since 1991.

Operation of the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

Attachment A provides a provision-by-provision description of the operation of this Declaration.

Regulatory Impact Statement

The Office of Impact Analysis advised that no Impact Analysis was required as this Declaration is unlikely to have more than a minor regulatory impact (reference OIA23-04767).

Legislative Instrument

This Declaration is a legislative instrument for the purposes of the Legislation Act 2003.

Commencement

This Declaration commences on the day after it is registered.

Consultation

In addition to extensive consultation within Defence, the Department of Employment and Workplace Relations and Comcare were consulted during the Declaration’s development process.

Attachment

A: Provisions in the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

The Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023 (this Declaration) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Declaration

This Declaration declares that specified provisions of the Work Health and Safety Act 2011 (the Act) do not apply, or apply subject to such modifications and adaptations as are set out in the Declaration, in relation to specified Defence activities and Australian Defence Force members.

In particular, the Declaration provides that following sections of the Act do not apply to Australian Defence Force warlike and non-warlike operational deployments:

38 Incident notification

39 Site preservation

Further, the Declaration provides that the following sections of the Act do not apply to Australian Defence Force members:

47-49 Consultation with workers

50-79 Health and safety representatives and work groups

84-89 Right to cease or direct cessation of unsafe work

Human rights implications

This Declaration engages the following human rights:

The right to just and favourable conditions of work – Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
The right to health – Article 12(1) of ICESCR.

Legitimate objective of the Bill

Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

The Right to Just and Favourable Conditions of Work

This Declaration engages Article 7 of the ICESCR, which provides that all people have the right to just and favourable conditions of work, including safe and healthy working conditions. Article 4 of ICESCR provides that countries may subject economic, social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'.

The right to just and favourable conditions of work is engaged because the requirements under the Act, which are exempted under this Declaration for Australian Defence Force members, are intended to ensure that the working conditions of typical employees in an ordinary civilian workplace are safe, and to promote the general health and wellbeing of employees engaging in potentially hazardous working environments. By requiring work health and safety procedures such as, for example; site preservation and incident notification, and the establishment of working groups and health and safety representatives, the Act is intended to protect and promote this right.

However, it is essential that the Australian Defence Force engage in high-risk military operations and Defence activities without limitation or impediment, and in circumstances where it is not reasonably practicable, or safe to comply with the requirements under the Act that are displaced by this Declaration. This is to protect the national interests and general welfare in Australia as a democratic society. Further, this declaration is compatible with the nature of the right to just and favourable conditions of work.

The Right to Health

This Declaration engages Article 12(1) of the ICESCR. Article 4 of ICESCR provides that countries may subject economic, social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'.

The right to health is engaged because the requirements under the Act, which are exempted under this Declaration for Australian Defence Force members engaged in specified Defence activities, are intended to ensure the health and safety of workers in an ordinary non-military employment context. However, limitation to the right to health by way of this Declaration is necessary to ensure Australia’s national security and the safety of its people, and to protect Australia’s national interests as a democratic society. This Declaration is also compatible with the nature of the right to health.

Compatible with the Nature Engaged Rights and Solely for the Purpose of Promoting Welfare in a Democratic Society

The requirements under the Act relating to the immediate notification of work health and safety incidents to the regulator, and preservation of sites where a work health and safety incident has occurred are to ensure that, in ordinary circumstances, workers are afforded safe and healthy working conditions. However, these regulatory requirements are not compatible with certain Australian Defence Force operations and activities, and in the course of certain Defence activities it is not reasonable, safe, or practicable for Australian Defence Force Members to give effect to these requirements.

Due to the unique nature of military activities in warlike and non-warlike operations, Australian Defence Force members are often required to engage in high-risk and hazardous operational environments. For example, in an armed conflict situation, the Australian Defence Force, consistent with the principle of military necessity, may deliberately cause the death or serious injury of other persons, expose Australian Defence Force members, Defence civilians and others to the risk of death or serious injury caused by others, and encounter dangerous incidents created by the acts of others. Moreover, in both warlike and non-warlike operations, dangerous incidents can be expected to be a routine characteristic of these operations.

In such military activities, the Australian Defence Force faces significant challenges complying with immediate reporting or site preservation incidents. For example, where Australian Defence Force members or Defence civilians are embedded with coalition forces or on exchange with foreign forces overseas (whether on operations, exercises or other activities), direct communications with its members can sometimes be intermittent, limited to certain types of technology or reliant entirely upon the foreign forces’ lines of communication. Another example is where Australian Defence Force units must by necessity maintain radio communication silence and report only periodically due to the nature of the activity engaged in.

Other exemptions in this Declaration are to ensure there is no inconsistency with, or impediment to, Australian Defence Force command and control requirements. For example, one consequence of this Declaration is that Australian Defence Force members do not have the right to cease work where they are concerned about risks to their health or safety, including from an immediate or imminent exposure to a hazard. While risk analysis and force protection are fundamental and inherent to the way the Australian Defence Force plans and conducts military activities, the exigencies of military service may ultimately require Australian Defence Force members to be ordered into harm’s way in Australia’s defence. It would be contrary to the public interest to permit them to be able to cease or direct cessation of work if they disagreed with the decision of their superior officer on the basis of risk to health or safety.

The limitations on the right to just and favourable conditions of work and the right to health are proportionate to the legitimate objective to ensure the security, defence and international relations of Australia, and are essential for the purpose of ensuring general welfare in Australia’s democratic society.

The limitations in this Declaration on the right to just and favourable conditions of work and the right to health are compatible with the nature of these rights, because Defence employs a variety of mitigating policies and procedures specific to Australian Defence Force operations, exercises and activities. These policies and procedures for Australian Defence Force operations are intended to ensure, to the greatest extent possible, a safe and healthy work environment while balancing a complicated set of risks and hazards in a military operational environment. The Defence Work Health and Safety Management System is designed to give all Department of Defence workers the highest level of protection that is reasonably practicable against harm to their health, safety and welfare from hazards and risks arising at work. With respect to Australian Defence Force warlike and non-warlike operational deployments, Defence continues to notify, report and where appropriate, investigate notifiable incidents internally and records of these reports and investigations are made available to the Regulator (Comcare) on request.

Conclusion

This Declaration is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

ATTACHMENT A – PROVISIONS IN THE WORK HEALTH AND SAFETY ACT 2011 (APPLICATION TO DEFENCE ACTIVITIES AND DEFENCE MEMEBRS) DECLARATION 2023

Section 1 – Name

Section 1 provides for the name of this Declaration: the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023.

Section 2 – Commencement

Section 2 provides that this Declaration commences on the day after it is registered.

Section 3 – Revocation

Section 3 provides that this Declaration revokes the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012.

Section 4 – Definitions

Section 4 provides definitions of words and phrases used throughout the Declaration. In particular, it provides that:

‘Act’ means the Work Health and Safety Act 2011.
‘defence civilian’ has the same meaning as in the Defence Force Discipline Act 1982.
‘defence member’ means:
- a member of the Permanent Navy, the Regular Army or the Permanent Air Force; or
- a member of the Reserves who is rending continuous full-time service or is on duty or in uniform; or
- a defence civilian who is involved in a warlike operation or non‑warlike operation.
‘deployed defence member’ means a defence member who is posted, assigned or attached for duty to: (1) a United Nations’ force; or (2) a foreign or multinational force; or (3) the Australian Defence Force performing duties outside Australia.
‘non-warlike operation’ means an operation that:
- occurs outside Australia; and
- that uses deployed defence members; and
- that is unlikely to result in fatalities; and
- that includes a risk to deployed defence members that is greater than the risk faced by defence members undertaking peacetime duties; and
- for which deployed defence members are authorised to use lethal force in the following circumstances only:
  - self-defence;
  - when defending another person.

This may include, for example: mine avoidance and clearance operations; weapons inspection and destruction operations; service protected or assisted evacuation operations; or peacekeeping operations.

‘warlike operation’ means an operation:
- that occurs outside Australia; and
- that uses deployed defence members; and
- that is likely to result in fatalities; and
- for which deployed defence members are authorised to use lethal force for specific military objectives.

Section 5 – Provisions of Act declared not to apply to specified activity

Section 5 provides that certain provisions of the Work Health and Safety Act 2011 set out in Schedule 1 of the Declaration do not apply to activities specified in the corresponding Item to Schedule 1.

The effect of this provision is that sections 38 (Incident Notification) and 39 (Site Preservation) of the Work Health and Safety Act 2011 do not apply to operations that meet the definition of a ‘warlike operation’; and they do not apply to operations that meet the definition of a ‘non-warlike operation’.

This means that incident notification and site preservation requirements do not apply to Australian Defence Force during warlike and non-warlike operational deployments.

Section 6 – Provisions of Act declared not to apply to class of members

Section 6 provides that certain provisions of the Work Health and Safety Act 2011 set out in Schedule 2 of the Declaration do not apply to the class of members specified in the corresponding Item to Schedule 2.

The effect of this provision is that sections 47-49 (Consultation with Workers), 50-79 (Health and Safety Representatives and Work Groups) and 84-89 (Right to Cease or Direct Cessation of Unsafe Work) of the Work Health and Safety Act 2011 do not apply to Australian Defence Force Members.

Schedule 1 – Provisions of Act and specified activity

Schedule 1 provides a table to set out which provisions of the Work Health and Safety Act 2011 do not apply to a specified activity, for the purposes of Section 5. Each Item in the table at Schedule 1 provides a specified activity which corresponds to certain sections of the Work Health and Safety Act 2011 from which it is exempt.

Schedule 2 – Provisions of Act and class of members

Schedule 2 provides a table to set out which provisions of the Work Health and Safety Act 2011 do not apply a specified class of members, for the purposes of Section 6. Each Item in the table at Schedule 2 provides a class of members which corresponds to certain sections of the Work Health and Safety Act 2011 from which it is exempt.

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