Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) (July 2014) Amendment Notice

Administered by Department of Employment, Skills, Small and Family Business

Legislation au F2014L01326 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Work Health and Safety Regulations 2011

 

Amendment Notice

 

Work Health and Safety Exemptions (Diving by members of the Australian Defence Force)

(July 2014) Amendment Notice

 

Introduction

The purpose of the instrument to which this Explanatory Statement relates, is to amend the exemptions granted under the legislative instrument, Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) (July 2014) (the original exemption instrument), which came into force on 23 July 2014.

 

Regulation 697 of the Work Health and Safety Regulations 2011 (WHS Regulations) provides that the regulator may at any time amend or cancel an exemption.

 

Subregulation 698(2) provides that a notice of amendment that affects a class of persons is a legislative instrument within the meaning of the Legislative Instruments Act 2003.

 

The amendment will affect Australian Defence Force (ADF) SCUBA Air Supervisors, being a class of ADF dive supervisors.

 

Details of the amendment

Clause 7(b) of the original exemption instrument provides that the exemptions in that instrument apply to ADF dive supervisors on condition that they have successfully undertaken training specified in that clause. Clause 7(b)(v) provides that the specified training includes the supervision of onsite chamber operations but excepts ADF Special Forces dive supervisors and ADF Army Work dive supervisors from this requirement.

 

ADF SCUBA Air Supervisors were inadvertently omitted from the exceptions in clause 7(b)(v) with the result that they must undertake training in the supervision of onsite chamber operations. This training is not relevant to the diving work supervised by ADF SCUBA Air Supervisors.

 

Clause 7(b)(v) has consequently been amended to reflect this.

 

Comcare has consulted with the Department of Defence (Defence), the ADF and the Defence dive school about the proposed amendment.

 

As the amendment will only apply to ADF SCUBA Air Supervisors (and indirectly to Defence and the ADF), a Regulation Impact Statement is not required.

 

The amendment will apply from 23 July 2014 which is the date on which the original exemption instrument came into force. As Defence’s and the ADF’s expectation had been that the original exemption would except ADF SCUBA Air Supervisors from the training requirement specified in clause 7(b)(v), training by the Defence dive school has proceeded on this basis. To ensure that ADF SCUBA Air Supervisors are not technically in breach of training requirements, the amendment is to apply retrospectively.

 

The retrospective operation of the instrument does not affect the rights of any person as at the date of registration so as to disadvantage any person, nor does it impose liabilities on a person in respect of anything done or omitted to be done before the date of registration. Accordingly, the retrospective operation of the instrument does not breach subsection 12(2) of the Legislative Instruments Act 2003. Further, the retrospective operation of the instrument is not prohibited by either the Work Health and Safety Act 2011 or the Work Health and Safety Regulations 2011.

 

A Statement of Compatibility with Human Rights has been completed for the Amendment, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is that the amendment is compatible with human rights. A copy of the Statement is attached.

 

 


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

Work Health and Safety Exemptions (Diving by members of the Australian Defence Force)

(July 2014) Amendment Notice

 

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 Legislative Instrument

 

Introduction

The purpose of the instrument to which this Explanatory Statement relates, is to amend the exemptions granted under the legislative instrument, Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) (July 2014) (the original exemption instrument), which came into force on 23 July 2014.

 

Regulation 697 of the Work Health and Safety Regulations 2011 (WHS Regulations) provides that the regulator may at any time amend or cancel an exemption.

 

Subregulation 698(2) provides that a notice of amendment that affects a class of persons is a legislative instrument within the meaning of the Legislative Instruments Act 2003.

 

The amendment will affect Australian Defence Force (ADF) SCUBA Air Supervisors, being a class of ADF dive supervisors.

 

Details of the amendment

Clause 7(b) of the original exemption instrument provides that the exemptions in that instrument apply to ADF dive supervisors on condition that they have successfully undertaken training specified in that clause. Clause 7(b)(v) provides that the specified training includes the supervision of onsite chamber operations but excepts ADF Special Forces dive supervisors and ADF Army Work dive supervisors from this requirement.

 

ADF SCUBA Air Supervisors were inadvertently omitted from the exceptions in clause 7(b)(v) with the result that they must undertake training in the supervision of onsite chamber operations. This training is not relevant to the diving work supervised by ADF SCUBA Air Supervisors.

 

Clause 7(b)(v) has consequently been amended to reflect this.

 

Comcare has consulted with the Department of Defence (Defence), the ADF and the Defence dive school about the proposed amendment.

 

As the amendment will only apply to ADF SCUBA Air Supervisors (and indirectly to Defence and the ADF), a Regulation Impact Statement is not required.

 

The amendment will apply from 23 July 2014 which is the date on which the original exemption instrument came into force. As Defence’s and the ADF’s expectation had been that the original exemption would except ADF SCUBA Air Supervisors from the training requirement specified in clause 7(b)(v), training by the Defence dive school has proceeded on this basis. To ensure ADF SCUBA Air Supervisors are not technically in breach of training requirements, the amendment is to apply retrospectively.

 

The retrospective operation of the instrument does not affect the rights of any person as at the date of registration so as to disadvantage any person, nor does it impose liabilities on a person in respect of anything done or omitted to be done before the date of registration. Accordingly, the retrospective operation of the instrument does not breach subsection 12(2) of the Legislative Instruments Act 2003. Further, the retrospective operation of the instrument is not prohibited by either the Work Health and Safety Act 2011 or the Work Health and Safety Regulations 2011.

 

Human rights implications

A human right engaged by this instrument, included in the section 3 definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011, is the right to just and favourable conditions of work contained in article 7 of the International Covenant on Economic, Social and Cultural Rights. The right to enjoy just and favourable working conditions has various components that require states to establish a minimum standard for working conditions for all workers and develop appropriate enforcement measures.

 

One of the components of article 17 is the right to safe and healthy working conditions. 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]   

 

The right to safe and healthy working conditions is primarily underpinned in Australia by work health and safety legislation at the Commonwealth, state and territory levels. At the Commonwealth level, this includes the Work Health and Safety Act 2011 (the WHS Act) and the WHS Regulations. The WHS Act places highlevel duties on a range of entities that are designed to ensure safe and healthy working conditions. It is supported by the WHS Regulations which provide more specific obligations, including those applying to general diving work.

 

This Legislative Instrument provides for an amendment to training requirements for ADF SCUBA Air Supervisors to except them from the requirement in clause 7(b)(v) to train in the supervision of onsite chamber operations.

 

ADF SCUBA Air Supervisors do not supervise diving that requires onsite recompression chambers. Training in this area is consequently unnecessary.

 

The amended exemption will not affect the health or safety of ADF divers, ADF SCUBA Air Supervisors or other ADF dive supervisors carrying out or supervising general diving work activities.

 


Conclusion

This Legislative Instrument is compatible with human rights because it will not affect the rights of ADF divers, ADF SCUBA Air Supervisors or other ADF dive supervisors to healthy and safe workplaces.

 

 

 

Comcare

[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]

Overview

The Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) (July 2014) Amendment Notice, enacted in 2014, addresses an inadvertent omission in the original exemption instrument concerning the training requirements for Australian Defence Force (ADF) SCUBA Air Supervisors. The amendment was introduced to rectify the oversight where ADF SCUBA Air Supervisors were incorrectly required to undertake training in the supervision of on-site chamber operations, which is not relevant to their diving activities. The instrument was enacted by Comcare, reflecting the policy objective to ensure the safety and efficacy of training programs for ADF dive supervisors while adhering to the broader legislative framework established by the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011. The amendment applies retrospectively to avoid any technical breach of training requirements and has been assessed for compatibility with human rights, ensuring that the rights of ADF divers and dive supervisors to safe and healthy working conditions are upheld.

Scope and Application

The Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) Amendment Notice (July 2014) amends the exemptions granted under the original exemption instrument, which came into force on 23 July 2014. This amendment specifically affects Australian Defence Force (ADF) SCUBA Air Supervisors, a class of ADF dive supervisors, by excepting them from the training requirement specified in clause 7(b)(v) to train in the supervision of on-site chamber operations. This training is not relevant to the diving work supervised by ADF SCUBA Air Supervisors, as they do not supervise diving that requires on-site recompression chambers. The amendment ensures that ADF SCUBA Air Supervisors are not technically in breach of training requirements and is applied retrospectively to maintain consistency with Defence’s and the ADF’s expectations. The amendment does not affect the health or safety of ADF divers, ADF SCUBA Air Supervisors or other ADF dive supervisors carrying out or supervising general diving work activities. The amendment applies to the Commonwealth jurisdiction and is made under the legislative authority provided by Regulation 697 of the Work Health and Safety Regulations 2011. The exemption instrument and its amendments are legislative instruments within the meaning of the Legislative Instruments Act 2003. A Statement of Compatibility with Human Rights has been completed, confirming the amendment's compatibility with human rights, including the right to just and favourable conditions of work.

Key Provisions

The Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) Amendment Notice (F2014L01326) pertains to the amendment of existing exemptions granted under the original exemption instrument, which came into force on 23 July 2014. This amendment specifically addresses the oversight of training requirements for Australian Defence Force (ADF) SCUBA Air Supervisors, as outlined in Clause 7(b) of the original exemption instrument (section 1). The amendment is necessary because ADF SCUBA Air Supervisors were inadvertently required to undergo training in the supervision of on-site chamber operations, which is not relevant to their duties (section 2). Consequently, Clause 7(b)(v) has been modified to exclude ADF SCUBA Air Supervisors from this training requirement. The amended exemption imposes certain obligations on the parties involved. ADF SCUBA Air Supervisors, who were previously required to complete the irrelevant training, are now exempt from this obligation. This amendment ensures that these supervisors are not required to undertake training that does not pertain to their specific duties, thereby allowing them to focus on their primary responsibilities related to diving operations. The Department of Defence and the ADF are indirectly affected as they must align their training programs with the updated exemption requirements. In terms of legal consequences, the amendment does not introduce new offences or penalties. Instead, it rectifies an oversight in the original exemption instrument to ensure compliance with the intended training requirements. The retrospective application of the amendment ensures that ADF SCUBA Air Supervisors are not left in a position of non-compliance, thereby preventing any potential breaches of the training stipulations. Importantly, this retrospective application does not disadvantage any individual or impose liabilities for actions taken prior to the amendment's effective date, as stipulated in the Legislative Instruments Act 2003 (section 3). The amendment is deemed compatible with human rights as it aligns with the right to just and favourable conditions of work, particularly the right to safe and healthy working conditions as outlined in the International Covenant on Economic, Social and Cultural Rights (section 4). By excluding ADF SCUBA Air Supervisors from irrelevant training, the amendment ensures that these supervisors can perform their duties without unnecessary burdens, thereby maintaining the integrity of their working environment. This aligns with the broader legislative framework supporting work health and safety in Australia, particularly under the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.