House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)

Schedule 4 - Amendment of WH & S Act

Work Health and Safety Act 2011

Background

300. This Schedule contains amendments to the WH & S Act.

301. The WH & S Act imposes duties on persons conducting a business or undertaking, officers and workers to ensure the health and safety of themselves and others. The thresholds imposed by these provisions are that:

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a person conducting a business or undertaking must ensure health and safety as far as is reasonably practicable of workers and other persons;

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officers must exercise due diligence to ensure the person conducting the business or undertaking complies with their duties; and

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workers must take reasonable care to ensure the health and safety of themselves and others.

302. The standards imposed by the WH & S Act are flexible and reflect the wide range of workplaces that the Act can apply to. In addition, the Act expressly provides that nothing in the Act requires or permits a person to take action, or to refrain from taking any action which would be, or could reasonably be expected to be, prejudicial to Australia's national security or defence. These provisions make clear that the standards of care contained in the Act are sensitive to national security and defence considerations, and that the duties should not be interpreted as requiring approaches to ensuring health and safety which would compromise Australia's national security or defence.

303. The ABF will be responsible for coordinating and controlling maritime border operations to protect Australia's national interests against maritime security threats. These operations will be important in ensuring Australia's national security and defence. These operations may involve factors that create risks to the health and safety of ABF workers and others, such as dangerous seas, constrained ability to conduct advanced surveillance, remote locations, unseaworthiness of vessels and the requirement to act in emergencies. Because of the national security or defence implications of these operations, the ability of the ABF, its officers and its workers to implement every possible precaution may be limited in a time critical or operationally sensitive environment.

304. The WH & S Act will be amended so that the existing provisions in relation to Australia's national security and defence will apply to the operations of the ABF. The existing powers of the Chief of Defence and the Director-General of Security to modify the operation of the Act in relation to particular workers or operations will be extended to the ABF Commissioner.

305. These amendments provide the ABF Commissioner the ability to provide assurance, where warranted to do so, to ABF officers who are performing enforcement activity under the ABF Commissioner's direction, while also recognising the broader duties and objectives within the WH & S Act to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.

306. Reflecting the Government's commitment to work health and safety, the amendments will include a provision expressly requiring the ABF Commissioner to take into account the need to promote the objects of the WH & S Act to the greatest extent consistent with national security and defence. This reflects the intention that the declaration making power will only be used in very limited circumstances and only where necessitated by the need to ensure Australia's national security and defence.

Item 1 - Section 4

307. This item inserts 4 new definitions into section 4 of the WH & S Act, for the purposes of the amendments to sections 12C and 12D of the Act.

308. The definitions of "Australian Border Force" and "Australian Border Force Commissioner" have the same meaning as in the ABF Act (see subsection 4(1) of the ABF Act).

309. The definition of "Australian Border Force worker" means:

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a person who is covered by covered by paragraph (a) of the definition of IBP worker in subsection 4(1) of the ABF Act and who is in the ABF or whose services are made available to the ABF. This paragraph essentially covers all APS employees in the Department who are either in the ABF or who are not in the ABF but whose services are made available to the ABF (such as intelligence or computer specialists);

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a person who is covered by paragraph (b), (c), (d), (e) or (f) of that definition and whose services are made available to, or who is performing services for, the ABF. This paragraph essentially covers all other people other than APS employees in the Department whose services are made available to, or who is performing services for, the ABF. Examples are APS employees from other Commonwealth agencies, employees from State of Territory agencies and external contractors or consultants.

310. The term "Immigration and Border Protection Secretary" means the Secretary of the Department administered by the Minister administering the ABF Act. At the time of writing, this is the Secretary to the Department.

Items 2 to 4 - After subsection 12C(2A); subsection 12C(3); and at the end of section 12C

311. Item 2 inserts new provisions into section 12C of the WH & S Act. Subsection 12C(1) provides that nothing in WH & S 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 national security. In addition to this general provision, subsection 12C(2) enables the Director-General of Security to issue a declaration clarifying how the provisions within the WH & S Act apply or are modified in relating to a person carrying out work for the Director-General. This section applies without limiting the generality of subsection (1).

312. New subsection 12C(2B) is in similar terms to subsection (2) and provides that, without limiting the generality of subsection (1), the ABF Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to an ABF worker.

313. New subsection 12C(2B) requires that the ABF Commissioner must consult the Secretary of the Immigration and Border Protection Department and the Director-General of Security before making such an instrument.

314. Item 3 makes technical amendments to subsection 12C(3) of the WH & S Act due to new subsection 12C(2A).

315. Item 4 inserts new subsection 12C(6) which qualifies the new subsection 12C(2B). Subsection 12C(6) provides that in controlling the operations of the ABF and in the exercise of the power under subsection (2B), the ABF Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's national security. This obligation is similar to the obligation in subsection 12C(4) which qualifies the Director-General of Security's power under subsection 12C(2).

Item 5 to 7 - After subsection 12D(2); subsection 12D(3); and at the end of section 12D

316. Item 5 inserts new provisions into section 12D of the WH & S Act. Subsection 12D(1) provides that nothing in WH & S 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. In addition to this general provision, subsection 12D(2) enables the Chief of the Defence Force to issue a declaration clarifying how the provisions within the WH & S Act apply or are modified in relating to:

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a specified activity; or

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a specified member of the Defence Force; or

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members of the Defence Force included in a specified class of such members.

317. This section applies without limiting the generality of subsection (1).

318. New subsection 12D(2A) is in similar terms to subsection (2) and provides that, without limiting the generality of subsection (1), the ABF Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to:

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a specified operation of the ABF; or

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a specified ABF worker; or

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ABF workers included in a specified class of such workers.

319. New subsection 12C(2A) requires that the ABF Commissioner must consult the Secretary of the Immigration and Border Protection Department and the Chief of the Defence Force before making such an instrument.

320. Item 6 makes technical amendments to subsection 12D(3) due to new subsection 12C(2A).

321. Item 7 inserts new subsection 12D(5) which qualifies new subsection 12D(2A). Subsection 12C(5) provides that in the exercise of the power under subsection (2A), the ABF Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's defence. This obligation is similar to the obligation in subsection 12D(4) which qualifies the Chief of the Defence Force's power under subsection 12D(2).

Item 8 and 9 - Paragraph 273B(1)(b); and paragraph 273B(2)(a)

322. Section 273 sets out the circumstances in which various matters done under the WH & S Act in writing are, or are not, legislative instruments for the purposes of the Legislative Instruments Act.

323. Item 8 amends paragraph 273B(1)(b) to insert a reference to new subsection 12D(2A). This will mean that a declaration under this subsection will be a legislative instrument. This is the same treatment as a declaration made under subsection 12D(2) by the Chief of the Defence Force.

324. Item 9 amends paragraph 273B(2)(a) to insert a reference to new subsection 12C(2B). This will mean that a declaration under this subsection will not be a legislative instrument. This is the same treatment as a declaration made under subsection 12C(2) by the Director-General of Security.