EXPLANATORY STATEMENT
Work Health and Safety Act 2011
Work Health and Safety (Operation Sovereign Borders) Declaration 2013
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, after consulting with, and obtaining the approval of, the Minister for Employment, by notice in writing, declare that specified provisions of the Act do not apply, or apply subject to such modifications and adaptations as are set out in the declaration, in relation to a specified activity, a specified member of the Australian Defence Force, or members of the Australian Defence Force included in a specified class of such members.
This Declaration does not limit the generality of subsection 12D(1).
Subsection 12D(4) of the Act provides that, in making a declaration 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.
Operation Sovereign Borders refers to the whole-of-government operation to combat people smuggling and protect Australia’s borders supported and assisted by a wide range of federal government agencies. Commonwealth officials and agents of the Commonwealth – as workers for the purpose of section 7 of the Act – will among other things, engage in activities to deter and prevent people smuggling by sea. This will include the interception at sea of vessels suspected of carrying illegal maritime arrivals (referred to in the Migration Act 1958 as unauthorised maritime arrivals), monitoring and/or closing with it in order to query, warn and/or board and control the vessel's movement and the movement of illegal maritime arrivals located thereon, when carrying out, or considering whether to carry out, an action to return a vessel or a person to a place outside Australia.
After consulting with, and obtaining the approval of, the Minister for Employment, the Chief of the Defence Force declares that the following provisions do not apply to the above activities undertaken under Operation Sovereign Borders:
Paragraphs 28 (a) and (b) Duties of workers
Paragraphs 29 (a) and (b) Duties of other persons at the workplace
Section 39 Site preservation
Paragraphs 28 (a) and (b) of the Act provide that while at work, a worker must take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, respectively. Similarly, paragraphs 29 (a) and (b) of the Act provide that a person at a workplace (whether or not the person has another duty under Part 2) must take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, respectively.
In giving effect to Government policy under Operation Sovereign Borders, Commonwealth officials and agents of the Commonwealth will be required to operate in a hazardous, uncertain and high-tempo operational environment, having to board vessels, and control and potentially transfer uncooperative persons. In such circumstances, despite best efforts, it may not always be possible to comply with paragraphs 28 (a) and (b), and paragraphs 29 (a) and (b) of the Act. By exempting Commonwealth officials and agents of the Commonwealth from paragraphs 28 (a) and (b), and paragraphs 29 (a) and (b) of the Act, the effect of this Declaration is to ensure that Commonwealth officials and agents of the Commonwealth do not face individual criminal sanctions under the Act for giving effect to Government policy.
However, Commonwealth officials and agents of the Commonwealth will be appropriately trained, equipped and directed to carry out the above activities in accordance with the objective of the Act so far as possible. This Declaration does not affect the Commonwealth’s obligations under the Act.
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. As mentioned above, for the most part, activities under Operation Sovereign Borders will take place at sea, which makes it particularly challenging, if not impossible, to preserve an incident site. Similarly, where a Commonwealth official and/or an agent of the Commonwealth, or an illegal maritime arrival, is sick or injured, the priority would be to seek prompt medical attention, including at a nearby port. In such instances, the requirement to preserve a site may detract from the ability to obtain urgent medical attention. Therefore, the result of this Declaration is that, in relation to Operation Sovereign Borders, there is no requirement to preserve an incident site.
This Declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This Declaration commences on the day after it is registered.
The Department of Employment, Comcare, the Australian Customs and Border Protection Service and the Joint Agency Taskforce were consulted during the preparation of the Declaration.
Statement of Compatibility with Human Rights
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.
This Declaration engages the following human right:
- The right to just and favourable conditions of work, including safe and healthy working conditions (article 7 of the International Covenant on Economic, Social and Cultural Rights).
The right to just and favourable working conditions is given effect to in Australia by work health and safety legislation at the Commonwealth, state and territory levels. Persons at work in Operation Sovereign Borders are covered by the Act, and are protected by provisions in the Act relating to safety. Workers owe duties under the Act and have a responsibility to ensure that their actions don’t adversely affect the health and safety of other workers and persons at the workplace,
The main way that the Declaration limits article 7 rights is by modifying the application of the duty that workers hold in relation to other workers at the workplace.
Overview of the legislative instrument
The Work Health and Safety (Operation Sovereign Borders) Declaration 2013 (the Declaration), made pursuant to subsection 12D (2) of the Work Health and Safety Act 2011 (‘the Act’) provides that specified provisions of the Act do not apply, or apply subject to such modifications and adaptations as are set out in the declaration, in relation to the specified activity of Operation Sovereign Borders.
The provisions excluded by the Declaration are:
- 28 (a) and (b): Duties of workers
- 29 (a) and (b): Duties of other persons at the workplace
- 39: Site preservation
Paragraphs 28 (a) and (b) of the Act provide that while at work, a worker must take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, respectively. Similarly, paragraphs 29 (a) and (b) of the Act provides that a person at a workplace (whether or not the person has another duty under Part 2) must take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, respectively. Finally, 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.
Engagement with article 7 rights
The Declaration limits the extent to which certain individuals, not having a sufficient degree of control in the exceptional circumstances under consideration, can be held personally criminally responsible for any incidents which may occur, and removes requirements relating to site preservation which would be extremely and impracticably onerous, or impossible, under the circumstances of the operation.
This does not mean that the right to safe workplaces is abandoned in Operation Sovereign Borders. Commonwealth officials and agents of the Commonwealth engaged in activities under Operation Sovereign Borders will be appropriately trained and equipped to intercept, board and control vessels, and control and potentially transfer the illegal maritime arrivals therein, in a safe and secure manner. However, throughout this process, there are numerous potential mishaps that may eventuate. Commonwealth officials and agents of the Commonwealth can neither foresee nor prepare for all eventualities, particularly in circumstances where illegal maritime arrivals may react in a dangerous way, as has happened in the past.
Senior officials and the Commonwealth as an entity will remain responsible for providing safe conditions of work.
Scope of Operations: Operation Sovereign Borders activities may take place in the Australian territorial sea, the Australian contiguous zone, on the High Seas, or in the contiguous zones or territorial seas of a foreign State.
Legitimate objective: Australia’s defence, specifically controlling Australia’s maritime borders.
Reasonable, necessary and proportionate: The Declaration is considered necessary to give effect to Operation Sovereign Borders. Under Operation Sovereign Borders, Commonwealth officials and agents of the Commonwealth will be required to operate in a hazardous, uncertain and high-tempo operational environment, having to potentially board and control vessels, and control and transfer uncooperative persons. In the absence of the Declaration the risk of penalties being imposed on Commonwealth personnel in inappropriate circumstances could undermine their ability to perform their work to the best of their ability. It is considered that this in itself could give rise to safety issues.
The Declaration has been drafted very carefully so as to ensure that it only applies to a narrow range of activities (specified activities). Other activities undertaken in connection with the Operation, for example movement of persons to offshore regional processing centres, will not be subject to the Declaration.
Exclusion of subparagraph 28(a) and (b)
- The operation will involve highly unusual circumstances and it is not reasonable to apply WHS duties in the context
- If the duties are not excluded there is a concern that personnel will not be confident in applying their training and this could affect safety
- Duties to comply with policies will remain and there will be extensive training involved
- There will be effective supervision through the chain of command
Exclusion of subparagraph 29(a) and (b)
- For the reasons outlined above it is similarly not reasonable to require PIIs as ‘other persons at a workplace’ to comply with WHS duties
- It would not be possible to ask PIIs to comply with workplace policies or directions etc and it is not expected that turning this duty off would affect the health and safety of others at the workplace
Exclusion of section 39
Site-preservation requirements are impracticable in a maritime operations context. For the most part, activities under Operation Sovereign Borders will take place at sea, which makes it particularly challenging, if not impossible, to preserve an incident site.
The Declaration notwithstanding, all notifiable incidents will continue to be centrally reported within the Government Departments and Agencies contributing personnel and assets to Operation Sovereign Borders and, where appropriate, internally investigated as necessary. Records of these reports and investigations will be made available to Comcare on request.
The Declaration will not substantively alter the safety of the workplace, a consideration which is of the highest priority within Operation Sovereign Borders and the Australian Government more broadly. In light of these factors, the exemptions sought are reasonable and proportionate to achieving the legitimate objective above.
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.