EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment
Subject – Work Health and Safety Act 2011
Work Health and Safety Amendment Regulation 2016 (No. 2)
Section 276 of the Work Health and Safety Act 2011 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act and accompanying Work Health and Safety Regulations 2011 (the Regulations) provide the primary work health and safety legislation for the Commonwealth jurisdiction. They are based on model laws developed by Safe Work Australia under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety.
The main objective of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by ‘…protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work…’ (s 3(1)(a)). In furthering this objective, ‘regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable’ (s 3(2)).
The key duty which gives effect to this objective is the primary duty of care (s 19). This requires persons conducting a business or undertaking to do what is ‘reasonably practicable’ to ensure the health and safety of their workers while at work.
Section 12F(3) extends the operation of offences under the Act extraterritorially. Because ‘this Act’ is defined to include the Regulations, offences against the Regulations are similarly extended extraterritorially, unless a provision provides otherwise.
There is a lack of clarity regarding how certain regulations apply outside Australia. It may not be reasonably practicable to comply with some regulations because:
- they refer to (or make underlying assumptions about) Australian institutions, conditions or technical standards (e.g. electrical networks, labelling requirements for hazardous chemicals), and
- are expressed to apply absolutely and without qualification.
There may be some circumstances when the Australian-specific requirements—for example relating to electrical networks—are not capable of application elsewhere. Some things may be beyond the duty holder’s control to do. For example it may not be reasonably practicable to provide foreign contractors with Australian-based ‘high risk work licences’, training or medical examinations. This requirement is not consistent with a key objective of the Act, which is to only require persons conducting a business or undertaking to do what is reasonably practicable, including what is within the duty holder’s control to do.
The Work Health and Safety Amendment Regulation 2016 (No. 2) (Amendment Regulation) clarifies this situation by inserting new provisions into the Regulations, to clearly list the regulations that apply outside Australia.
Regulations that are not listed in the Amendment Regulation do not apply outside Australia.
Importantly, the amendment does not affect the scope and application of the primary duty under the Act—which is to do what is reasonably practicable to ensure the health and safety of workers, including those located outside Australia. This recognises that duty holders must do everything which is within their control to meet the requirements under the Act.
Details of the Work Health and Safety Amendment Regulation 2016 (No. 2)
Section 1 – Name of Regulation
This section sets out the name of the regulation as the Work Health and Safety Amendment Regulation 2016 (No. 2).
Section 2 – Commencement
The Amendment Regulation commences on the day after it is registered.
Section 3 – Authority
The Amendment Regulation is made under the Work Health and Safety Act 2011.
Section 4 – Schedules
Schedule 1 to the Amendment Regulation amends the Work Health and Safety Regulations 2011.
Schedule 1 – Amendments
Item [1] – Regulation 11A (application outside Australia)
Item 1 inserts a new regulation that clarifies the extraterritorial application of the Regulations. The item lists specific regulations that apply outside Australia (11A(1)) and provides that some apply with modification (11A(2)).
Subregulation 11A(2) modifies the application of Part 4.8 (Diving) outside Australia. The reference in subparagraph 169(a) to a registered medical practitioner is taken to be a reference to a medical practitioner. Registered medical practitioner is a defined term in the Regulations. It will not always be practicable when working outside Australia to have a medical practitioner registered under Australian law assess medical fitness.
Subparagraph 11A(2)(b) provides that certain subregulations apply only so far as is reasonably practicable. It may not be practicable in certain situations to strictly comply with these requirements. For example foreign workers may be appropriately qualified under the laws of a different country without holding Australian diving qualifications.
Subregulation 11A(3) provides that Parts 5.2 and 5.3 (duties related to registered plant and designs) apply with modification outside Australia. The relevant regulations only apply if the plant is, or could reasonably be expected to be, used in Australia.
Consultation
The Amendment Regulation will affect a small number of entities and workers who perform work overseas. The regulator, Comcare, the Department of Foreign Affairs and Trade (DFAT), and the Department of Defence were consulted on the proposal to clarify the application of the Regulations outside Australia.
In developing the list of regulations to be clarified, DFAT consulted internally with representatives of line areas with relevant responsibilities, including its property and security areas. As it clarifies the operation of Regulations and does not substantially modify the application of duties or obligations, broader consultation was not necessary.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required (OBPR ID: 20299).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights has been completed for the Amendment Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is the Amendment Regulation is compatible with human rights. A copy of the Statement is attached.
The Regulation is a legislative instrument for purposes of the Legislation Act 2003.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation commences on the day after it is registered.
ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Work Health and Safety Amendment Regulation 2016 (No. 2)
As a matter of policy, (noting that, as outlined below, Australia will not necessarily have human rights obligations in cases in which Australian officials may be operating beyond Australia’s territory) this Legislative Instrument 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 Amendment Regulation
The Work Health and Safety Amendment Regulation 2016 (No. 2) (Amendment Regulation) will clearly list provisions in the Work Health and Safety Regulations 2011 (Regulations) that apply outside Australia. It will provide certainty for duty holders and workers when they are operating outside of Australia.
Importantly, the proposed amendment does not affect the scope and application of the primary duty under the Work Health and Safety Act 2011 (the Act)—which is to do what is reasonably practicable to ensure the health and safety of workers, including those located outside Australia.
This approach recognises that duty holders must do everything which is within their control to meet their requirements under the Act.
Human Rights Implications
The Australian Government accepts that there may be exceptional circumstances in which the rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 may be relevant beyond the territory of a State Party to the international instruments listed in that section (although the jurisdictional scope of these instruments is unsettled as a matter of international law). The Australian Government considers that the obligations in those instruments are essentially territorial in nature and that a high standard needs to be met before a State could be considered as effectively controlling territory abroad. It is not satisfied in all, or necessarily any, cases in which Australian officials may be operating beyond Australia’s territory from time to time. The rights under relevant human rights instruments that a State Party should apply beyond its territory will be informed by the particular circumstances. Relevant factors include the degree of authority and degree of control the State Party exercises, and what would amount to reasonable and appropriate measures in those circumstances.
The Australian Government respects the rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and to the extent that the Government is in a position to afford them during military
or civilian operations occurring outside Australia, it will as a matter of policy endeavour to implement reasonable and appropriate measures in the circumstances.
On this basis, this Statement will consider whether the Schedule engages the following human rights as a matter of policy:
Right to Just and Favourable Conditions of Work
Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) recognises a right to enjoy just and favourable working conditions—which includes a right to safe and healthy working conditions (Article 7(b) of the ICESCR).
In relation to this right, the Committee on Economic, Social and Cultural Rights has stated that ‘people must be afforded minimum conditions of occupational health and safety, and States parties are responsible for adopting policies and laws to that end’.[1]
Article 2(1) of the ICESCR provides that States Parties must ‘take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of [their] available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant’. This is generally known as the obligation of ‘progressive realisation’ and allows the rights in ICESCR to be realised progressively over time.[2] Article 7(b) is subject to the principle of progressive realisation in Article 2(1) of the ICESCR.
Australia principally complies with its obligation under Article 7(b) of the ICESCR through a system of Commonwealth, state and territory work health and safety laws, which have been harmonised across the majority of jurisdictions through the adoption of model laws.
The duties of care are the keystone to the legislative scheme. They not only provide the basis for enforcing work health and safety standards, they set the standards. The duties are intended to inform and guide the duty holders as to what is expected of them in protecting health and safety in the workplace.
Under the primary duty of care, persons conducting a business or undertaking must do what is reasonably practicable to ensure the health and safety of their workers (s 19 of the Act). In the Commonwealth context, the Act extends the operation of offences (and the underlying duties) extraterritorially (s 12F(3)). The Regulations also apply extraterritorially (s 4 ‘Act’ includes the Regulations).
The Regulations provide more detailed, positive obligations in relation to specific work activities, hazards and risks. In many cases, they provide content to the primary duty of care, by prescribing what must be done (i.e. what it is reasonably practicable to do) in particular circumstances. They also establish a number of licensing schemes to support the objectives of the Act (e.g. high risk work licensing, licensing of major hazard facilities).
Currently, it is not clear how the Regulations practically apply outside of Australia. The legitimate objective of the Amendment Regulation is to provide certainty to duty holders about how health and safety duties should be complied with when operating outside of Australia.
Many regulations refer to (or include underlying assumptions about) Australian institutions, conditions and technical standards (e.g. electrical networks, labelling requirements for hazardous chemicals), and are expressed to apply absolutely and without qualification.
In some cases, it may not be reasonably practicable to comply with absolute and unqualified regulatory duties outside Australia. There may be some circumstances when the Australian-specific requirements are not capable of application elsewhere—for example requirements relating to Australian electrical networks. Some things may be beyond the duty holder’s control to do. For example it may not be reasonably practicable to provide foreign contractors with Australian-based ‘high risk work licences’, training or medical examinations.
This outcome is not consistent with a key objective of the Act—which is to only require what is reasonably practicable, what is within the duty holder’s control to do.
The Amendment Regulation addresses these limitations by inserting new provisions to clearly list the regulations that apply outside Australia. Regulations that cannot reasonably be complied with outside Australia will not apply.
The Amendment Regulation is reasonable and proportionate because duty holders will still be required to ensure the health and safety of workers, so far as is reasonably practicable in the circumstances. The Amendment Regulation does not affect the scope and application of the primary duty under the Act—which is to do what is reasonably practicable, including what is within the duty holder’s control, to ensure the health and safety of workers, including those located outside Australia. This recognises that duty holders must do everything which is within their control to meet their requirements under the Act.
Conclusion
Considered as a matter of policy (noting that, as outlined above, Australia will not necessarily have human rights obligations in cases in which Australian officials may be operating beyond Australia’s territory) this Legislative Instrument is compatible with human rights. It clarifies the extent to which the Regulations apply extraterritorially, consistently with the framework established under the Act. This requires duty holders to do what is reasonably practicable to ensure the health and safety of their workers, including those working outside Australia.
To the extent that it may limit rights, those limitations are reasonable, necessary and proportionate to the achievement of that legitimate objective.
Senator the Hon Michaelia Cash, Minister for Employment
[1] UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 16 (Rev.1), The Committee on Economic, Social and Cultural Rights, May 1996, No. 16 (Rev.1), available at: http://www.refworld.org/docid/4794773cd.html [accessed 22 May 2014].
[2] Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4 ‘The nature of States parties obligations (Art. 2, par 1)’, [9].