Introduction

The story of the harmonisation process in South Australia has illustrated how vulnerable the uniformity of the legislation is to state-based interests and political pressures. The Work Health and Safety Act 2012 (SA) (SA WHS Act) is now operating in SA, but with some important differences from the model legislation.

On 1 January 2013, South Australia joined the Commonwealth, Queensland, New South Wales, Tasmania, the Australian Capital Territory and Northern Territory in enacting the model legislation, via the SA WHS Act. The SA WHS Act replaces the Occupational Health Safety and Welfare Act 1986 (SA) (OHSW Act).

The SA WHS Act contains a number of departures from the model legislation, which broadly reflect the political issues that held up the passage of the legislation for twelve months from its intended commencement date of 1 January 2012:

  • The duty to first eliminate and then minimise risks has been limited to the extent to which the duty holder has the ‘capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to remove that capacity’, a change which is intended to replace the old ‘control test’ in the OHSW Act.
  • Preserving the right of a person to refuse to answer questions or provide information or a document on the ground that it may incriminate the person or expose the person to a liability. 
  • Restrictions on provisions enabling an HSR to request assistance from any person when exercising their health and safety function. These restrictions would, amongst other things, limit the ability of an HSR to obtain the assistance of a union official.
  • Right of entry provisions for WHS entry permit holders are tighter under the SA WHS Act than under the model legislation, mainly via mechanisms to involve inspectors being made aware of union right of entry.
  • In order to protect the interests of small business the SA WHS Act requires that any implementation, variation, or revocation of a code of practice must be made available to the Small Business Commissioner for assessment, and the provision of comment or advice to the Minister.
  • Provision for statutory reviews of the operation of the legislation to be undertaken by the Minister after one year and three years, with the results to be tabled in Parliament.

The changes sought to protect business, particularly small business, from a perceived increase in the scope of obligations under the model legislation.