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Background to OHS Harmonisation

May 2011

Australia is 'harmonising' its work safety (Occupational Health and Safety) laws. Each State and Territory government has constitutional control over its OHS laws. In 2009 all governments agreed to implement new model OHS in each of their jurisdictions. When the debate was happening over what the model OHS laws should be (2008-09), there were two options:
  • The Victorian laws of 2004: These laws hold that everyone is responsible for safety according to what they 'reasonably and practicably control'.
  • The New South Wales laws of 2000: These hold 'employers' automatically guilty when a work safety incident occurs.
The Victorian laws comply with Australia's international obligations under International Labour Organisation conventions of 2006. All States and Territories in Australia and the Commonwealth have the same principles as Victoria---except for NSW.

The NSW laws breach international obligations, break criminal justice principles and practices, have imposed huge injustices on individuals in NSW, have been declared unconstitutional by the Australian High Court and have failed to produce better work safety outcomes. We've summarised why these laws are so bad and provided links to commentary and case studies.

In an important and hugely positive development, the new NSW O'Farrell Government has effectively repealed these bad laws (May 2011). Here are the details of the Bill. Here is a summary article from The Australian.

The key design features of the Model OHS laws

The laws agreed upon by all governments reject the NSW (2000) model and broadly implement the Victorian-style model, except for two major flaws which we, many lawyers and others have identified. We detail the flaws below and identify a simple fix.

The implications for each jurisdiction in implementing the new laws are as follows:
  • Victoria, South Australia, Western Australia, the Commonwealth, Tasmania, and Northern Territory: The laws are a significant step back from the quality of their existing laws.
  • Queensland and Australian Capital Territory: The laws will be a slight improvement on their existing laws, but not match the current standards in Victoria and the other States.
  • NSW: The laws are a major advance on their current laws (2000) but do not match the current standards in Victoria and the other States.

A summary of the two flaws

  • Confusion over who is responsible
    If someone said to you that you were responsible for what you "reasonably and practicably" , you'd wonder what on earth they were talking about. But if someone said that you were responsible for what you "reasonably and practicably control" , you'd understand. You're responsible for what you control. The new laws have removed the word "control".

    This will cause confusion in workplaces. Lawyers are already arguing over what this means. Prosecutions will be confused. There will be High Court challenges. The laws will have to be amended. This will push work safety backwards. This is unacceptable.

    Surprisingly, this can be easily fixed.
  • The right to silence is removed
    OHS prosecutions are criminal prosecutions. Under normal criminal law, the police cannot force you to answer questions unless with court supervision. The new OHS laws will enable WorkSafe inspectors to force you to answer questions without court supervision. Full details here.
A more extensive summarised analysis of the two flaws is available here.

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