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2002-2003-2004
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
OCCUPATIONAL HEALTH AND SAFETY
(COMMONWEALTH EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL
2004
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Kevin Andrews MP)
EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL 2004
OUTLINE
The Occupational Health and Safety
(Commonwealth Employment) Act 1991 (the Act) establishes a statutory
framework to secure the health and safety of Commonwealth Government employees
(including employees of Commonwealth agencies, statutory authorities and
Government business enterprises) while at work. This framework complements the
Commonwealth workers’ compensation and rehabilitation
legislation.
The Commonwealth’s approach is focussed on prevention
of workplace deaths and injuries. The new enforcement and compliance framework
proposed in the Occupational Health and Safety (Commonwealth Employment)
Amendment (Employee Involvement and Compliance) Bill 2002 (the OHS(CE)A(EIC)
Bill) would improve occupational health and safety performance and help prevent
workplace deaths and injuries. The OHS(CE)A(EIC) Bill would create a dual
criminal and civil penalty regime for breaches of the Act reserving criminal
prosecutions for the most serious breaches.
On 27 November 2003, the
Legislative Assembly of the Australian Capital Territory (ACT) passed the
Crimes (Industrial Manslaughter) Amendment Act 2002. This legislation
commenced on 1 March 2004. That Act inserted a new Part 2A into the Crimes
Act 1900 (ACT). Part 2A contains two new offences of industrial
manslaughter. The two offences are: ‘Industrial manslaughter –
employer offence’ and ‘Industrial manslaughter – senior
officer offence’.
It is possible that there are some
Commonwealth authorities, particularly Government business enterprises, and the
employees of such bodies, covered by the Act which may be liable to prosecution
for the industrial manslaughter offences contained in Part 2A of the Crimes
Act 1900 (ACT).
The Commonwealth opposes the ACT industrial
manslaughter laws on the basis that they create specific offences:
(a) in
the Crimes Act 1900 (ACT) which duplicate existing
offences available to deal with workplace deaths in the Crimes Act
1900 (ACT) and the Occupational Health and Safety Act 1989
(ACT); and
(b) which single out the conduct of employers and senior
officers.
The Commonwealth considers that
creating industrial manslaughter offences under the general criminal law is
inconsistent with the overall objective of the occupational health and
safety legislation framework to prevent workplace deaths and injuries, rather
than just punishment after the event.
The purpose of this Bill is to
exclude Commonwealth employers and employees from the application of the ACT
industrial manslaughter laws and any other similar industrial manslaughter laws
enacted by a State or Territory in the future.
The Bill proposes to
amend the Act to provide that:
(a) Part 2A of the Crimes Act 1900
(ACT); and
(b) any other similar industrial manslaughter laws in a State or
Territory that are prescribed in the regulations;
have no effect to the
extent to which those laws impose a criminal liability on an employer, employing
authority or employee covered by the Act in respect of a person’s death
that occurs during, or in relation to, the person’s employment or
provision of services to another person.
FINANCIAL IMPACT
STATEMENT
The Bill has no financial impact on the Commonwealth
Budget.
NOTES ON CLAUSES
Clause 1 – Short
title
This is a formal provision specifying the short title of the
Act.
Clause 2 – Commencement
This clause specifies
the Act is taken to have commenced on the day on which it receives Royal
Assent.
Clause 3 – Schedule(s)
Clause 3 provides that
an Act specified in a Schedule to this Act is amended or repealed as set out in
the Schedule, and that any other item in a Schedule operates according to its
terms.
Item 1 – After section 11
1.1 This item would amend
the Act to insert a new section 11A.
1.2 Proposed subsections
(1) and (2) set out those State and Territory laws which have no effect in
relation to employers, employing authorities and employees covered by the
Act.
1.3 Proposed subsection (1) deals with the enactment of other
industrial manslaughter laws similar to Part 2A of the Crimes Act 1900
(ACT) in any State or Territory. This subsection would provide that the new
section 11A applies to a law of a State or Territory that imposes criminal
liability in respect of a person’s death that occurs during, or in
relation to, the person’s employment or the provision of services to
another person and is prescribed by regulations.
1.4 Without the
criteria of prescribing the relevant laws, proposed paragraph (1)(a) could apply
to State and Territory laws which create general criminal offences, such as
manslaughter, murder and culpable driving. This would include, for example, the
offence of manslaughter in section 15 of the Crimes Act 1900 (ACT).
However, it is not the Commonwealth’s intention to exclude its employers,
employing authorities or employees from the application of these laws.
Similarly, the Commonwealth does not intend to effect the concurrent
operation of State or Territory laws which promote occupational health and
safety which is provided for by section 4 of the Act.
1.5 Commonwealth
occupational health and safety policy is focussed on prevention of workplace
deaths and injuries. Such a policy is inconsistent with those specific types of
State and Territory laws which purport to impose criminal liability in respect
of a person’s death that occurs during, or in relation to, the
person’s employment or provision of services to another person - that is
laws like Part 2A of the Crimes Act 1900 (ACT). Only these particular
type of laws would be prescribed under the new paragraph (1)(b).
1.6 Proposed subsection (2) would provide that new section 11A applies
to Part 2A of the Crimes Act 1900 (ACT). The new section 11A, however,
would only apply to each criminal liability imposed by Part 2A that is in
respect of a person’s death that occurs during, or in relation to, the
person’s employment or provision of services to another person. This
would ensure that if Part 2A were amended, for example by inserting other
offences which do not impose criminal liability in respect of a person’s
death that occurs during, or in relation to, the person’s employment or
provision of services to another person, those other offences would not be
effected.
1.7 Proposed subsection (3) would provide that a law to
which the section applies under the new subsection (1) or (2) has no effect.
However, to limit as far as possible the effect on State and Territory laws,
this proposed subsection is only in respect of State and Territory laws to the
extent to which they purport to impose a criminal liability on an employer,
employing authority or employee in respect of a person’s death that occurs
during, or in relation to, the person’s employment or provision of
services to another person.
1.8 Proposed subsection (3) would apply in
respect of conduct of an employer, employing authority or employee occurring on
or after the introduction day. The introduction day is the date on which the
Bill was introduced into Parliament. The retrospective effect of the proposed
provision would ensure that an employer, employing authority or an employee
would not be liable for industrial manslaughter offences under Part 2A of the
Crimes Act 1900 (ACT) for conduct that occurs on or after the date of
introduction.
1.9 The retrospective effect of the amendments is
consistent with the Commonwealth’s view that existing occupational health
and safety laws and the generally applying criminal laws already cover the
conduct with which the industrial manslaughter offences seek to
deal.
1.10 Proposed subsection (4) would clarify that the terms
‘employer’, ‘employing authority’ and
‘employee’ in the new section 11A would have the same meaning as
given in section 5 of the Act. Proposed subsection (4) also provides a
definition for the term ‘introduction day’ used in proposed
subsection (3).
1.11 Proposed subsection (5) would provide that
subsection (2) does not limit the generality of subsection (1). This provision
has been included to ensure that the reference to a law of a State or Territory
in proposed subsection (1) is not read down. For example, subsection (2) should
not prevent other Australian Capital Territory laws being prescribed for the
purposes of the proposed subsection (1). The proposed subsection (5) would also
clarify that Part 2A of the Crimes Act 1900 (ACT) is not a law which
needs to be prescribed for the purposes of the new subsection
(1).
1.12 Proposed subsection (6) would ensure that section 4 and section
11 of the Act do not effect or limit the operation of proposed section
11A.
1.13 Section 4 permits State and Territory laws that promote the
occupational health and safety of persons to operate concurrently with the Act.
Subsection 11(2) provides that nothing in the Act, including section 4, renders
the Commonwealth, a Commonwealth authority (other than a Government business
enterprise), or a Commonwealth employee liable to be prosecuted for an offence.
Subsection 11(3) of the Act provides that subsection (2) does not prevent the
prosecution of a Government business enterprise or a person employed by a
Government business enterprise.