Bills Digest no. 143 2008–09
Safe Work Australia Bill 2008 [No. 2]
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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introduced: 13 May
House: House of Representatives
Portfolio: Education, Employment and Workplace
Sections 3 73 on a day
fixed by Proclamation, or six months after the date of Royal
Assent, whichever is the earlier; all other provisions on the day
of Royal Assent.
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
The purpose of the Bill is to
establish Safe Work Australia as an independent Commonwealth
statutory body to improve occupational health and safety outcomes
and workers compensation arrangements in Australia.
The Safe Work Australia Bill 2008 [No. 1] was introduced into
the House of Representatives and read for the first and second
times on 4 September 2008. The relevant Bills
Digest contains information about the contents of the Bill.
The Bill was debated in the Senate and a number of amendments
were proposed. The amendments which were agreed by all the
non-government Senators  are effectively summarised by Senator Siewert as:
- insert an objects clause
- increase the number of employer and employee
- remove some ministerial discretion in appointing employer and
- remove the ability of the ministerial council to amend Safe
Work s operational strategic plans
- remove additional voting rights for government representatives
on Safe Work Australia
- remove the power of the minister to direct a CEO contrary to
strategic operational plans and the power of the minister to
terminate the CEO for unsatisfactory performance
- include an audit committee.
The Senate returned the Bill to the House of Representatives on
14 October 2008,
10 November 2008 and
4 December 2008 requesting consideration of the relevant
In response to the Message from the Senate of 4 December 2008,
the Hon. Julia Gillard stated:
As I have made clear to this parliament on a
number of occasions, the composition, operation and, in particular,
the membership and voting structure of this new body, Safe Work
Australia, were the subject of in-detail negotiations at the
Workplace Relations Ministers Council and then at the Council of
Australian Governments before the historic COAG deal was
I have explained time and time again that every
bit of unwinding [by way of amendment to the Bill] is an offence
against the intergovernmental agreement which will require me to go
back to the Workplace Relations Ministers Council and to COAG to
see if we can reach agreement again. Despite that explanation, and
in clear knowledge of the consequences, the Liberal Party in the
Senate has once again moved to amend this legislation in a way that
renders it inconsistent with the intergovernmental agreement.
Consequently I have taken the extraordinary step of moving that the
bill be laid aside.
The Bill was subsequently laid aside in the House of
On 5 November 2008 the Workplace Relations Ministers Council
(WRMC) met to update Ministers on the progress of legislation to
establish Safe Work Australia. At that time,
Ministers highlighted that Senate amendments to
the Safe Work Australia Bill 2008 were inconsistent with the
historic commitment of all governments to uniform national OHS
legislation as reflected in the inter-governmental agreement on OHS
reforms signed by the Council of Australian Governments (COAG) in
The WA Minister noted that the WA Government supported a number
of the amendments passed by the Senate.
The WRMC met again on 12 February 2009. A key outcome from the
meeting was a decision to establish Safe Work Australia as an
Executive Agency prescribed under the Financial Management and
Accountability Act 1997.  The Safe Work Australia Council was subsequently
established on 31 March 2009. Safe Work Australia is an independent body that
will support the Council. Consequently the Australian Safety and Compensation
Council was abolished.
It was agreed by the WRMC that the Safe Work Australia Council
would commence developing the model OHS Act in order to provide an
exposure draft of the Act in August 2009. The framework for the uniform OHS laws
was agreed on 18 May 2009.
Consequences of failure to pass
Section 57 of the Commonwealth of Australia
Constitution Act 1901 (the Constitution) provides
- if the House of Representatives passes any proposed law, and
the Senate rejects or fails to pass it, or passes it with
amendments to which House will not agree, and
- if after an interval of three months the House of
Representatives again passes the proposed law with or without any
amendments which have been made, suggested, or agreed to by the
- the Senate rejects or fails to pass it, or passes it with
amendments to which the House of Representatives will not agree,
the Governor-General may dissolve the Senate and the House of
In this case the Senate has passed the Safe Work Australia Bill
[No. 1] with amendments to which the House of Representatives did
This current Bill was introduced into the House of
Representatives on 13 May 2009 which is an interval of more than
three months since the original Bill was laid aside. The current
Bill is in identical terms to the original Bill.
Therefore, if the Senate rejects or fails to pass this Bill, or
passes it with amendments to which the House of Representatives
will not agree, it will be open to the Governor-General to dissolve
both the House of Representatives and the Senate, that is, a double
Should the current Bill fail to pass it result in a delay in the
development of the model OHS Act.
The following comments about the main
provisions of the Bill are in the same terms as those contained in
the original Bills
Part 1 of the Bill contains a general statement about the
purpose and intention of the Act, and relevant definitions.
Clause 6 sets out in table-form the proposed
functions of SWA including, but not limited to:
- develop national policy relating to OHS and workers
- prepare model OHS legislation, model regulations, model codes
of practice and other material relating to OHS
- develop a policy, for approval by the Ministerial Council,
dealing with the compliance and enforcement of the Australian laws
that adopt the approved model OHS legislation
- monitor the adoption of model OHS legislation, model
regulations, model codes of practice by the Commonwealth, States
- develop proposals for harmonising workers compensation
arrangements across the Commonwealth, States and Territories and
national workers compensation arrangements for employers with
workers in more than one of those jurisdictions
- advise the Ministerial Council on matters relating to OHS or
workers compensation, and
- such other functions that are conferred on it by any other
Clause 10 provides that Safe Work Australia
will have 15 members as follows:
- the Chair
- one member who represents the Commonwealth
- eight members, each of whom represents a different State or
- two members who represent the interests of workers
- two members who represent the interests of employers and
- the CEO.
Subclause 10(2) provides that SWA may not
perform its functions if more than one third of those offices are
Clause 11 provides that the Minister must appoint a person
to be the Chair in consultation with the Ministerial
appointment must be in writing.
The Minister must also, by written instrument:
- appoint the person who will be the Commonwealth representative
on SWA: clause 13
- appoint the persons who will be the State or Territory
representatives, based on nominations from the States and
Territories: clause 14
- appoint the persons who will be the workers representatives,
based on nominations by an authorised body  : clause 15 and
- appoint the persons who will be the employers representatives,
based on nominations by an authorised body  : clause 16.
However, in the case of both the workers representative and the
employers representative, where the Minister does not agree to
appoint the nominated person, an authorised body (which may or may
not be the same authorised body) may nominate another person:
subclauses 15(3) and 16(3) respectively.
The Bill does not contain any eligibility requirements for
membership of SWA, for example, that the Minister should have
regard to whether nominees have relevant qualifications or a
background in OHS and workers compensation matters.
Clause 17 provides that voting members hold
office on a part-time basis, for the period specified in their
instrument of appointment which must be no longer than three
years. A voting
member is defined in clause 4 to be a member other
than the CEO.
Appointments of voting members will end either:
- by resignation: clause 19 or
- on termination by the Minister for the following reasons:
- inability to perform their duties because of physical or mental
- bankruptcy (or similar)
- absence, except on leave of absence from three consecutive meeting of SWA
- failure, without reasonable excuse, to provide disclosure of
interests as required by clauses 18 and 40: clause
In addition the Minister must
terminate the appointment of a member who represents a State or
Territory, workers or employers if the body which nominated the
person requests the Minister to do so in writing: subclause
According to clause 21 the Chair is to be paid
subject to a determination by the Remuneration Tribunal. However,
if there is no such determination, then the Chair is to be paid the
remuneration that is prescribed by regulations. The Bill is silent
about the manner in which the remuneration would be calculated in
these circumstances. However, regulations are put before the
Parliament and are subject to disallowance.
Clause 25 provides that the office of a voting
member is not a public office within the meaning of the
Remuneration Tribunal Act 1973. Whilst this makes clear
that the Remuneration Tribunal will not set the remuneration of
these members, the Bill is silent as to what the mechanism will be.
However, the Explanatory Memorandum states the representative
members will be remunerated by the governments or bodies which they
Clauses 27 and 28 are about SWA s strategic
plan. Clause 27 requires SWA to prepare draft
strategic plans once every three years for the next three years.
That plan is to deal only with planned
outcomes and the strategies for achieving those outcomes.
The draft strategic plan is to be given to the Ministerial
Council which can approve or refuse the draft plan. Where the
Ministerial Council refuses the draft plan, it must direct SWA to
make specified changes to the plan within a specified time. In that
case, SWA must comply with the directions: subclause
28(4). The Ministerial Council must approve the altered
draft plan when the alterations are made in accordance with
directions: subclause 28(5). When the strategic
plan is approved it is to be published in the way that SWA
considers appropriate: subclause 28(7).
For the avoidance of doubt subclause 28(8)
provides that a direction, approval or refusal by the Ministerial
Council in relation to the strategic plan is not a legislative
Clauses 29 and 30 are about SWA s operational plan.
Clause 29 requires SWA to prepare a draft
operational plan each financial year and give it to the Ministerial
draft plan must deal with the activities which SWA proposes to
undertake and its total amount of expenditure for the financial
year: subclause 29(2).
As with the strategic plan, the Ministerial Council:
- must approve or refuse the plan: subclause
- must direct SWA to make specified changes within a specified
time where the plan is refused: subclause 30(2),
- approve the plan when the specified alterations are made:
Once the operational plan is approved it is to be published in
the way that SWA considers appropriate: subclause
Clauses 31 and 32 empower the Ministerial
Council to direct SWA to amend either the strategic plan or the
operational plan respectively in accordance with clauses 27-30.
Clauses 34-39 set the rules about meetings of SWA, in
- meetings are to be convened by the Chair and must be held at
least three times in each financial year: clause
- if the Chair is not present at the meeting, the voting member
representing the Commonwealth is to preside: clause
- where a voting member is unable to attend a meeting, they may
request, in writing, that the Chair approve a substitute in their
place: clause 36. However the Chair does not have
to agree to this request.
- According to subclause 37(1) a majority of the
voting members constitutes a quorum. However, subclause
37(3) provides an exception where the matter for
deliberation or decision relates to the model OHS legislation, or
model OHS codes of practice. In that case there will not be a
quorum unless a majority of all of the voting members who represent
the Commonwealth, States and Territories are present.
A question is decided by a two-thirds majority of the votes of
the voting members present and voting: subclause
38(1). However subclause 38(2) provides
an exception where the matter for deliberation or decision relates
to the model OHS legislation, or model OHS codes of practice. In
that circumstance, the question is decided by:
- a two‑thirds majority of the votes of the voting members
present and voting, and
- a majority of the votes of all of the voting members who
represent the Commonwealth, States and Territories.
Clause 40 provides that a member who has an
interest, pecuniary or otherwise, in a matter being considered by
SWA must disclose the nature of the interest to the meeting. In
that case, subclause 40(4) provides that the
member must not be present during deliberations on the matter and
must not take part in any decision on the matter.
The requirement that a member who has a conflict of interest
must not be present during deliberations on the matter over which
the conflict arises and must not take part in any decision on such
matters does not apply if the matter
relates to the model OHS legislation or model OHS codes of
practice, or if SWA decides the member may be present or take part:
According to the Explanatory Memorandum, this is to ensure that
the requirements of an absolute majority of the Commonwealth,
States and Territories, as provided for in subclause 38(2) is not
Subclause 42(1) provides a mechanism for making
general decisions without a meeting. A
decision will be deemed to have been made at a meeting provided
- a two‑thirds majority of the voting members entitled to
vote on the proposed decision indicate agreement with the decision
- all the voting members were informed of the proposed decision,
or reasonable efforts were made to inform
all the voting members of the proposed decision.
The Bill does not define what amounts to reasonable efforts
Subclause 42(2) provides a mechanism for making
decisions about model OHS legislation or model OHS
codes of practice without a meeting. A decision will
be deemed to have been made at a meeting provided that agreement is
- a two‑thirds majority of the voting members entitled to
vote on the proposed decision and
- a majority of the votes of all the voting members who represent
the Commonwealth, States and Territories
All the voting members must have been informed of the proposed
decision, or reasonable efforts were made
to inform all the voting members of the proposed decision:
proposed paragraph 42(2)(c).
In addition subclause 42(3) provides that
decisions can be made without a meeting under the circumstances set
out in subclause 42(1) and (2) only if SWA has determined the
nature of decisions that can be made without a meeting and the
manner in which voting members are to indicate their agreement.
Clauses 44-58 are about the CEO of SWA. The functions of the CEO
are to manage the administration of SWA and assist SWA in the
performance of its functions. The CEO must perform the functions in
accordance with SWA s strategic plan and operational plan:
According to clause 46 the Minister may, by
legislative instrument, give written directions of a general nature
to the CEO about the performance of the CEO s functions and
requiring the provision of a report or advice about SWA s
functions.  In
that case the CEO must comply with the direction that has been
given. The CEO must keep the Minister informed of SWA s progress in
the performance of its functions: clause 47.
Similarly, SWA may given written directions to the CEO about the
performance of the CEO s functions and requiring the provision of a
report or advice about SWA s functions. In that case the CEO must
comply with the direction that has been given: clause
48. However, the CEP is not required to comply with such
directions in certain circumstances, for example, where they are
inconsistent with clause 46 Ministerial directions. The CEO must
keep SWA informed about the progress of its operational plan:
Under clause 50 the Minister appoints the CEO
by written instrument. The CEO holds office on a full time basis.
The period of appointment is not more than five years.
Clause 52 provides that the CEO is to be paid
the remuneration which is determined by the Remuneration Tribunal,
unless no such determination is in operation. In that case the
remuneration will be prescribed in regulations.
Appointment of the CEO will end either:
- by resignation: clause 56 or
- on termination by the Minister for the following reasons:
- inability to perform their duties because of physical or mental
- bankruptcy (or similar)
- absence, except on leave of absence for 14 consecutive days or for 28
days in any 12 months or
- the CEO engages, except with the Minister s approval, in paid
employment outside the duties of their office or
- failure, without reasonable excuse to provide disclosure of
interests as required by clauses 40 and 55: clause
In addition the Minister may terminate the appointment of the
CEO if the Minister is of the opinion that the performance of the
CEO has been unsatisfactory: subclause 57(3).
Clause 59 provides that staff of SWA are to be
engaged under the Public Service Act 1999. In particular,
subclause 59(2) provides that, for the purposes of
the Public Service Act 1999, the CEO and the staff of Safe
Work Australia together constitute a Statutory Agency.
Clauses 60-62 respectively provide that SWA may do
the following in the performance of its functions:
- constitute committees
- be assisted by officers and employees of Agencies, a State or
Territory or an authority of the Commonwealth, State or
- engage consultants on behalf of the Commonwealth.
This part sets up the SWA Special Account (the Account) in
accordance with the Financial Management and Accountability Act
1997: clause 64.
The Account will be credited with the following:
- amounts paid by the States and Territories in accordance with
the Intergovernmental Agreement
- amounts paid by the Commonwealth in accordance with the
- any other amounts paid by the States and Territories for the
performance of SWA s functions
- any other amounts the Commonwealth agrees to allocate for the
performance of SWA s functions and
- the amount of any gifts given or bequests made for the purposes
of the Account: clause 65.
Clause 66 sets out the costs and expenses that
can be paid from the Account.
Part 8 contains miscellaneous provisions. In particular
clause 70 requires the CEO to prepare and give to
the Minister, to SWA and to the Ministerial Council a report on SWA
s operations during each financial year.
Clause 72 requires the Minister to conduct a
review of SWA s ongoing role and functions. The review is to be
conducted six years after the commencement of this section of the
Bill and must be completed within six months. A report about the
review must be tabled within 15 sitting days of its receipt by the
Clause 73 provides for the making of
regulations which are necessary and convenient for carrying out or
giving effect to the Safe Work Australia Act 2008.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
Legislative Instruments Act 2003 defines a legislative
instrument as an instrument of a legislative character that is, or
was, made under a delegation of power from Parliament . An
instrument has a legislative character if it determines or alters
the content of the law rather than applying the law in a particular
. According to
section 44 of the Legislative Instruments Act 2003 the
legislative instrument will not be a disallowable instrument
because the enabling legislation for the instrument (that is, the
Safe Work Australia Act 2008), facilitates the establishment or
operation of an intergovernmental body or scheme involving the
Commonwealth and one or more States.
27 May 2009
Bills Digest Service
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