The planned commencement date for the Model Work Health and Safety Laws is now a few short months away. In this article we go ‘around the grounds’ and provide an update of the progress of reform in each Australian State and Territory.

In order to participate in the harmonisation process, each jurisdiction must enact the Model Work Health and Safety Act and introduce the Model Work Health and Safety Regulations through its own Parliament.

The current state of adoption and implementation of the model laws in each jurisdiction is mixed. What is clear is that there will no longer be a truly national commencement date of 1 January 2012. The table below provides an overview of what is now expected in each jurisdiction.

Summary

Click here to view the table.

Recent developments

The Act

The Model Work Health and Safety Act1 (Model Act) has been relatively settled for some time.

The current version of the Model Act was recently updated on 23 June 2011. Safe Work Australia (which is the body with custodianship of the laws and regulations) has released a table2 setting out some of the changes to the laws, which generally related to technical or procedural issues. The basic principles within the Model Act remain unchanged from earlier drafts.

Some of the key changes under the harmonised laws which will be common to all the jurisdictions, are:

  1. the qualification of the duties of care owed under the Model Act through inclusion of the test of ‘reasonably practicable’ (and the removal of the reverse onus in some jurisdictions)
  2. imposition of a ‘positive’ duty on officers to exercise due diligence 
  3. penalties substantially increased (maximum penalty for a company now $3million and $600k or 5 years imprisonment for an officer)
  4. the privilege against self incrimination is abrogated but self incriminating information provided is not admissible into evidence in a prosecution of the person providing it (unless the evidence is provided voluntarily)
  5. introduction of prohibition on discriminatory, misleading and coercive conduct in some jurisdiction, and
  6. increased provisions and attention given to consultation, issue resolution and incident notification.  

Of course, the relevance of these changes will vary from jurisdiction to jurisdiction depending on current laws.

The Regulations

The Federal, State and Territory ministers agreed on the final terms of the Model Work Health and Safety Regulations (Model Regulations) in August. While there was general agreement, Victoria and Western Australia noted some reservations to the giving full acceptance to the Model Regulations without seeking further information, which we discuss below.

Some significant changes have been made to the nature of the duties expressed in the new Model Regulations, and Freehills will provide clients with an update on some of these changes as the regulations emerge in each jurisdiction. The Model Regulations have not been adopted in any jurisdiction as yet.

Queensland Workplace Health and Safety has prepared the following documents which are a useful guide for Queensland obligation holders:

  • A comparison of Workplace Health and Safety Regulations 2008 with the Model Regulations, and 
  • A table outlining the applicable codes of practice under the Model Regulations.

The Codes of Practice

On 10 August 2011, the Workplace Relations Ministers agreed on the first tranche of Codes of Practice. In all, 11 have now been agreed and are available in final form on the Safe Work Australia website.

On 26 September 2011, further Codes of Practice were released. All draft codes can be found on the Safe Work Australia Website3. Safe Work Australia has commenced a public consultation period on the new Codes of Practice.

The Compliance and Enforcement Policy

The compliance and enforcement policies of each regulator play a significant role in informing us about how safety laws will be enforced. The Model Compliance and Enforcement Policy4 acknowledges the importance of a nationally consistent approach to compliance and enforcement and details the approach to be taken by regulators in monitoring and enforcing compliance with the Model Act.

Progress of the laws by jurisdiction

The progress of enacting the laws in each jurisdiction is proceeding according to the political and procedural needs of each jurisdiction.

Below is a snapshot of the current state of the laws in each jurisdiction. Not every change in each state has been highlighted, just some of those which we consider to be most important. Clients are reminded that the common changes described above will apply to each jurisdiction. State specific presentations will be held in each Freehills office to discuss the changes.

 Click here to view the table.

Impact on other safety laws is not clear

While the public focus of harmonisation has been on mainstream occupational safety and health there are a range of practical issues that continue to emerge. One of these is the considerable (and ongoing) debate of safety regulation in the mining industry. In addition, other safety-related areas, such as rail safety, are currently undergoing similar harmonisation processes.

Other than in jurisdictions where the Model Act has been enacted, it is not yet known what the interaction will be between this legislation and other specific safety laws, such as those applying to dangerous goods and electrical safety.