EXPLANATORY STATEMENT
Work Health and Safety Act 2011
Work Health and Safety (Warlike Service—Operation Okra) Declaration 2017
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 (‘the CDF’) 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 Defence activity, a specified Australian Defence Force (‘ADF’) member, or ADF members included in a specified class of such members.
This declaration does not limit the generality of subsection 12(D)(1).
The Work Health and Safety (Warlike Service—Operation Okra) Declaration 2017 (‘the Declaration’) provides that paragraphs 28(a) and (b) of the Act do not apply in relation to the warlike operation named Operation Okra for a fixed period of three years from the date of commencement of the Declaration.
Warlike operations means an operation that occurs outside Australia, uses deployed ADF members, that is likely to result in fatalities, and for which deployed ADF members are authorised to use lethal force for specific military objectives. Examples of warlike operations include operations undertaken as part of a declared war, combat operations against an armed adversary, or peace enforcement operations.
Operation Okra, which is a warlike operation, is Australia’s contribution to the international effort to combat the Daesh (also known as ISIL) terrorist threat in Iraq and Syria. Australia’s contribution is being closely coordinated with the Iraqi government, Gulf nations and a broad coalition and international partners.
The purpose of the Declaration is to provide reassurance for ADF members that the Act does not increase the standard of care that is required of them in performing their service. The Declaration also ensures that any perceptions regarding exposure to criminal liability under the Act does not impede or delay operational decision-making in warlike situations, which could in return be a risk to the health and safety of the personnel involved.
The worker duty
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.
The ‘reasonable care’ test is an objective one. The requisite standard is what should reasonably, in all the circumstances, be expected of a worker carrying out the duties and discharging the responsibilities in a manner appropriate to the skills and expertise expected of a person holding himself or herself out to be able to undertake that work.
In the case of Operation Okra, all the circumstances would include a number of relevant factors, including the hazardous, uncertain and high-tempo operational environment, and the use of lethal force for specific military objectives that are likely to result in fatalities.
Furthermore, subsection 12D(1) provides that nothing in the Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be prejudicial to Australia’s defence. Although subsection 12D(1) does not completely absolve a duty holder from a duty under the Act, it does place limits on what is required. ADF members can discharge their duty under section 28 even if they do not take all the same actions that a worker might ordinarily be required to take to discharge their duty where there is no potential for prejudice to Australia’s defence.
The need for a declaration
It is critical that ADF members are able to perform their duties and make operational decisions quickly and effectively. Concerns have been raised that the performance of ADF members may be hindered by their efforts to comply with their duty under the Act.
Even though the standard required by section 28 is qualified by both ‘reasonable care’ and section 12D, and it requires similar standard of care as the Defence Force Discipline Act 1985, members may perceive the standard to be higher than the legislated intent. The potential imposition of high penalties, including a term of imprisonment, has also resulted in increased concern amongst members.
It is intended that Defence will continue to work with ADF members including a review of training provided to them prior to deployment on operations to further clarify the standard required by the worker duty in the Act, and its interaction with the Defence Force Discipline Act 1985. This is the reason the Declaration will be reviewed after 2 years , and will automatically repeal 3 years after commencement.
Health and safety will not be detrimentally affected
Subsection 12D(4) of the Act provides that in making a declaration under subsection 12D(2), the CDF 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.
It is considered that the work health and safety of ADF members will not be detrimentally affected by the making of this Declaration. This Declaration does not affect the Commonwealth’s duties under the Act and does not substantially alter the standard of care that is expected of workers.
This Declaration is a legislative instrument for the purposes of the Legislation Act 2003.
The Department of Employment, Comcare, Joint Operations Command, Military Strategic Commitments and Defence Legal within Defence were consulted during the classification process.
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.
Overview of the Declaration
The Work Health and Safety (Warlike Service—Operation Okra) Declaration 2017 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 adoptions as are set out in the Declaration, in relation to activities of Operation Okra.
Operation Okra, which is a warlike operation, is Australia’s contribution to the international effort to combat the Daesh (also known as ISIL) terrorist threat in Iraq and Syria. Australia’s contribution is being closely coordinated with the Iraqi government, Gulf nations and a broad coalition and international partners.
The provisions excluded by the Declarations are paragraphs 28(a) and (b) of the Act, which 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.
Working in a highly hazardous, uncertain and high-tempo operational environment, it is critical that ADF members are able to perform their duties and make operational decisions quickly and effectively. Even though the standard required by section 28 is qualified by both ‘reasonable care’ and section 12D (i.e. Act not to prejudice Australia’s defence), and it requires similar standard of care as the Defence Force Discipline Act 1985, members may perceive the standard to be higher than the legislated intent. Concerns have been raised that the performance of ADF members may be hindered by their efforts to comply with their duty under the Act.
The purpose of the Declaration is to provide reassurance for ADF members that the Act does not increase the standard of care that is required of them in performing their service. The Declaration also ensures that any perceptions regarding exposure to criminal liability under the Act does not impede or delay operational decision-making in warlike situations, which could in return be a risk to the health and safety of the personnel involved.
It is intended that Defence will continue to work with ADF members to further clarify the standard required by the worker duty in the Act, and its interaction with the Defence Force Discipline Act 1985. This is the reason the Declaration will be reviewed 2 years after its commencement, and will sunset automatically after 3 years.
Human rights implications
It is considered that the Declaration does not engage human rights because it does not substantially alter the standard of care that is required of workers. In addition, the primary duty of care that the Commonwealth owes to workers is not affected by the Declaration.
Conclusion
This Declaration is compatible with human rights as it does not raise any human rights issues.