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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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WORK HEALTH AND SAFETY BILL

Committee Stage

In committee (resumed on motion).

Clause 20.

The CHAIR: The minister was seeking advice on a particular question.

The Hon. J.J. SNELLING: For the benefit of the committee, I will clarify my earlier statement with regard to home businesses. If a person uses their home for the purpose of running a business, then, yes, they meet the definition of a PCBU. They will therefore have those duties that apply to a PCBU and the residential premises will be a workplace. This means that they have the duty to ensure their own health and safety and the safety of others who come into the workplace, but the duty only applies so far as it relates to work activity. In other words, any private activity is just that, it is private, and no work health and safety duty applies.

In the example of the dinner party or the birthday party in the home, no WHS duties will apply. I am advised—and it is important to repeat—that these obligations are no different to the legal duties of residents who use the homes for running a business under the current occ health and safety legislation.

The Hon. I.F. EVANS: Just in response to the minister's clarification, if I am running a business from home and I am having a dinner party and, say, a doctor who is on-call and therefore working attends my dinner party, I am still not obligated under the OH&S Act because he is working and I run a business from home because it is a social event? Is that the advice?

The Hon. J.J. SNELLING: Yes, that would be correct.

The CHAIR: Is that all you have with respect to clause 20?

The Hon. I.F. EVANS: That will do.

Clause passed.

Clause 21.

The Hon. I.F. EVANS: I was just trying to work out in clause 21(1)(a) the interpretation of the word 'occupied'. At what point is the building occupied? Can the minister clarify that for me?

The Hon. J.J. SNELLING: It is the ordinary meaning and it means someone who resides in the house.

The Hon. I.F. EVANS: Does that mean they have to be on the electoral roll? Does that mean they have to reside there for at least a week? Does that mean six months? At what point does someone occupy the premises? It says that 'the occupier of a residence, unless the residence is occupied for the purposes of' running a business. At what point, if someone comes to the house to conduct business, are they occupying it for the purposes of conducting a business? I am trying to work out at what point the house becomes occupied.

The Hon. J.J. SNELLING: What are you trying to get at?

The Hon. I.F. EVANS: There are at least two ways you can interpret the clause. The way it is worded it says that the occupier is not someone who is in charge of the management or control of fixtures unless the residence is occupied for the purposes of conducting a business. My point is: occupied by who? I am a builder. I come to your house for six months every day to do the renovations. When I step through the door am I occupying it? At what point is the person occupying it, or is it only the owner of the house? Ultimately—

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: So it is the owner. I will put my position—

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: This is my point: who becomes the occupier? Is it the owner? In my case, my wife owns the house, I do not. My son, who is a personal trainer, takes calls at home. He sleeps at our place three nights a week. He rents another property and stays there other times of the week. When he is at my place three nights a week on a regular basis is he an occupier at that point; and when he takes phone calls for his personal training business is he then running a business from home, and am I captured? That is the point I am trying to make. I am trying to put some clarity around who gets captured by the word being an 'occupier'. When do you become the occupier and when are you not an occupier?

The Hon. J.J. SNELLING: With regard to the builder, I can certainly say that the builder is not an occupier. You do not become an occupier just by the fact that you visit the premises during the day. Visitors, guests and so on are likewise not occupiers. With regard to the example of your son, he is not an occupier.

The Hon. I.F. EVANS: Even if he lives there?

The Hon. J.J. SNELLING: My advice is that just because he resides at the premises does not mean he is an occupier under the definition of the act.

The Hon. I.F. EVANS: Just so I am clear, we have five adults in our home, so are they—

The Hon. J.J. SNELLING: You should be pushing them out!

The Hon. I.F. EVANS: You've got six!

The Hon. J.J. SNELLING: I am charging them board as soon as they turn 18.

The Hon. I.F. EVANS: So you are running a business? That's an interesting question the Treasurer raises. If you charge your children board, are you technically running a business? Interesting question. The point I make is that I think it is totally unclear who the occupier is. If it is not restricted to the owner, you may well have four occupiers all inherit different responsibilities because one of them is conducting a business and the responsibility falls on the other occupiers. Dad runs the architecture business from the back office; because they are running a business, all the occupiers inherit a duty.

The Hon. J.J. SNELLING: I think we need to go back and look at exactly what the clause is doing. The duties that it sets out are essentially aimed at the owner of premises, so generally the landlord of a building which is a workplace. It sets out the responsibilities of that person for making sure that those premises are in a safe condition and comply with the requirements of the act; to make sure that there are not bits of masonry falling off the ceiling, walls about to collapse or carpet that is clearly in a bad state of repair; all those sorts of things. It is trying to pick up and confer responsibilities upon that group of people.

The occupier that the member for Davenport is so interested in is trying to exclude the owner of a residence from this provision, so that those people are not unintentionally caught up under this provision and they are not conferred with these responsibilities with regard to people who may come into their home to do work. So, for example, if an electrician comes in, the owner of the residence, the occupier, does not have responsibilities unintentionally conferred upon them by this particular provision.

The Hon. I.F. EVANS: I will just make one comment and then I will move on. My point is this: if the residence is being used for a business—architect, home accountant or whatever—it becomes a workplace. The occupier then becomes liable. It is unclear to me, when you have five adults living at home, whether all of them are occupiers and all of them become liable because dad is running the business, or whether it is just dad who is running the business who is liable. The legislation does not say 'the occupier who is running the business'; the legislation says 'the occupier'.

The Hon. J.J. SNELLING: The talk about 'the occupier' is not trying to bring people under the clause; it is trying to exclude people from the operation of this clause.

The Hon. I.F. EVANS: Yet No. 20 brings it in.

The Hon. J.J. SNELLING: Yes, but it is only PCBUs. You only come under the provisions of this if you are a person conducting a business or undertaking.

The Hon. I.F. EVANS: It does not say that; it says occupier. Move on, and we can put 21 to the vote. It only excludes them if there is not a business being run from home.

The Hon. J.J. SNELLING: That is true, yes.

The Hon. I.F. EVANS: And there is a business being run from home because dad is an architect, so they are brought in. It only excludes them if there is not a business being run from home. If a business is being run from home it includes them, and it does not include the person running the business, it includes the occupier.

The Hon. J.J. SNELLING: No.

The Hon. I.F. EVANS: I'm sorry, it says, 'The occupier of a residence unless the residence is occupied for a purpose of or part of conducting a business.' So it brings in the occupier if a business—not their business but a business—is being run. My point is that I think it captures a wider group than intended.

The Hon. J.J. SNELLING: No, you are wrong. You are wrong because you are excluding what it says in the paragraph above:

Person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fitting, plant in whole or in part at a workplace but does not include—

and then goes on to talk about occupiers. It is bringing in PCBUs. In the example of multiple people living at a house in which a home business is being conducted, it is only the PCBU (the person conducting the business or undertaking) who is brought under the auspices of the act.

Clause passed.

Clause 22.

The Hon. I.F. EVANS: Just a quick question here, and things get a bit quicker from here on in you will be pleased to know. The issue that 22 raises is to do with substances. Substances, of course, are now any natural occurring substance, including water, so in the Aldgate main street all the businesses will have to now be obligated to deal with flood issues that come through their businesses.

The Hon. J.J. SNELLING: What's reasonable—one in ten?

The Hon. I.F. EVANS: Yes, it floods every 10 years, so I think a court would find it is reasonable that they have a plan to deal with it, Treasurer. I think that would be the case as, indeed, all the businesses through Unley and all the businesses through West Beach because of the stormwater issue where there is a history of flooding.

An honourable member interjecting:

The Hon. I.F. EVANS: Yes, that's right; absolutely, to the extent that it is reasonable but they still now have to go through the process of working out injuries to staff as a result of flood issues. The issue I want to question is that clause 22(2)(b) talks about substances that are 'used or could reasonably be expected to be used', so it is not restricted to use of the substance in accordance with their instructions. There is no limitation on the liability.

The Hon. J.J. SNELLING: Could the member for Davenport just clarify: is he talking about whether the liability extends to the misuse of the substance? Is that what he is getting at?

The Hon. I.F. EVANS: This issue deals with designers and the designers now have an obligation if they are designing a substance that 'is to be used, or could reasonably be expected to be used'. Every time someone designs a substance, they have to somehow make a judgement about whether they think it is going to be used in a workplace or not. I am just wondering how anyone could possibly be expected to make a judgement about that issue, given that there are so many different circumstances. I am just trying to cover the point, that is all.

The Hon. J.J. SNELLING: Let us go to what the clause is again doing and that is providing that, when a PCBU creates or designs a structure or an item of equipment or indeed a substance, it is safe. It puts obligations on this PCBU to make sure that whatever it is designing or creating is safe for its intended use. Obviously there are many substances that can be used unsafely for a use that is unintended, if it is not what the equipment is created for. You can think of any number. Obviously, forklifts are not created to be driven as go-karts and raced around a warehouse.

The obligation is on the designer of the item of equipment or the substance to make sure that it is safe for its intended use. That means that they would need to do whatever normal testing is done by people who create and design these things to ensure that they conform to the normal, reasonable definition of safety. Obviously, a designer or a creator of a product is not going to be able to make sure that it is safe for purposes for which it is not intended to be used.

The Hon. I.F. EVANS: I think you have answered it in relation to clause 22(2)(a) where it says 'at a workplace, use the plant, substance or structure for a purpose for which it was designed,' but then all the little subclauses have the word 'or' on the end so it is 'or the next one or the next one'. Ultimately, it comes down to having to design it so that it is without risk to health and safety for people 'who carry out any reasonably foreseeable activity'. Go-kart racing in a warehouse is obviously foreseeable. My point is—

The Hon. J.J. SNELLING: That is not its intended use.

The Hon. I.F. EVANS: It does not say that. It says that only in subclause (2)(a). Then it says 'or', 'or', 'or', not 'and', 'and', 'and'. So, you can take them all separately. The point I make is that there are people using the product not for its intended purpose but for a purpose that is reasonably foreseeable. The person still could inherit a liability if they have not done their processes properly.

The Hon. J.J. SNELLING: I will give you an example of something like that, and that is a heavy item of machinery being used to hold a door open. Obviously the intended use of the item of machinery is not to hold open doors, but it should nonetheless still be safe to hold open a door. Something quite run of the mill, such as holding open a door, would be an unintended but foreseeable use of that item.

The Hon. I.F. EVANS: This is my point: I have been on building sites where they have used nail guns for target practice at lunch time. They put a target up on a shed, like an archery target. I have been on building sites where they have thrown bricks at the temporary toilet to help the other workers with their business. There are a whole range of things that happen that are not within the purpose for which something is designed. It comes down to this: clause 22(4) provides:

(4) The designer must give adequate information to each person—

every person—

who is provided with the design for the purpose of giving effect to it concerning—

(a) each purpose for which the plant, substance or structure was designed—

and all the calculations, as per subclause (2). Subclause (2) includes 'who carry out any reasonably foreseeable activity'. My point is that I think it is placing an unrealistic expectation for someone to provide all of that information for each foreseeable activity. That is the obligation that you are placing on them.

The Hon. J.J. SNELLING: With regard to people using nail guns, that obviously would be brought in under other provisions of the act as an unsafe activity, and the people conducting that activity would be in trouble under other provisions of the act. It would be unreasonable to expect the manufacturer of a nail gun to make nail guns in such a way that they could be safely used for target practice. That would be an unreasonable expectation. There is certainly nothing under this provision that would oblige the manufacturers of nail guns to do so.

Clause passed.

Clause 23 passed.

Clause 24.

The Hon. I.F. EVANS: In clause 24(2)(b) there is a requirement for importers. Importers must ensure that the plant, substance or structure is without risk to the health and safety of persons who handle the substance at work, but there is no obligation to say 'handle the substance as recommended', as distinct from other sections which actually provide 'for the purpose for which it was designed', which is the line above it in clause 24(2)(a). So, at one point the act says you have to use the plant, substance or structure for the purpose for which is was designed but then it does not refer to those who handle the substance at the workplace as recommended. To me, there is a lack of a safeguard in 2(b).

The Hon. J.J. SNELLING: That is provided for elsewhere in the bill. Clause 19(3)(f) makes provision for that.

The Hon. I.F. EVANS: All 19(3) says is that you have to provide the information. There is no obligation on the worker to handle the substance of the workplace as recommended, but I have made my point: clause19(3) says that you just have to provide the information. The worker does not have to use it as per the recommendation.

The Hon. J.J. SNELLING: In clause 28, the worker has a general duty under the act to act in a safe manner, and apparently we are coming to that.

Clause passed.

Clause 25.

The Hon. I.F. EVANS: The only question here, Treasurer, relates to the duties on persons conducting businesses or undertakings that supply things—plant, substances or structures. I assume this applies to the importer, the wholesaler, the distribution agent, the retailer, who are all suppliers? I assume the obligations under clause 25 apply to all of those?

The Hon. J.J. SNELLING: I am advised, yes.

Clause passed.

Clauses 26 and 27 passed.

Clause 28.

The Hon. I.F. EVANS: With clause 28, it has always intrigued me; what is the obligation under the bill in relation to workers having drugs in their system at work or, indeed, being drunk at work? I am particularly interested as to what is the obligation under the bill regarding drugs. If a worker is found with any content of illicit drugs in their system, does that automatically exclude them from the provisions of the bill, or discount them from payouts under the bill?

The Hon. J.J. SNELLING: I have two things to say. One is that there is an obligation on the worker to conduct themselves in a manner where they do not endanger their co-workers, and obviously being drunk or under the influence of drugs would do that.

The Hon. I.F. Evans: Or to themselves.

The Hon. J.J. SNELLING: Indeed. The other thing is that part (d) says 'cooperate with any reasonable policy or procedure of the person conducting the business or undertaking'. Many businesses—in fact, most—have a zero tolerance to drugs and alcohol, certainly with regard to the operation of heavy machinery and the like, so their obligation to cooperate with that policy would be conferred by the operation of that subclause (d). There are also specific provisions under the regulations with regards to drugs and alcohol.

The Hon. I.F. EVANS: You are sending me some other regulations. Do you want to send me those as well?

The Hon. J.J. SNELLING: I will give you the whole lot.

The Hon. I.F. EVANS: I am just intrigued why there is not an obligation on the employee to report unsafe work practices. If you look at the duties of the worker, there is nothing under the duties that requires the worker to report any unsafe work practice or, indeed, if they come across something unsafe at work, there is no duty to report. I am just wondering why not.

The Hon. J.J. SNELLING: I am told that there are further provisions in the bill which provide for consultation which brings in that in terms of a worker's obligations to report unsafe things in the workplace. Again, it would also come down to subparagraph (d). Presumably an employer, as part of their general policy, would have a requirement for workers to immediately report anything unsafe at their workplace.

Clause passed.

Clauses 29 to 33 passed.

Clause 34.

The Hon. I.F. EVANS: I raised this during my second reading contribution: I am just trying to get an understanding of what an unincorporated association is. I know what an incorporated association is, but what is an unincorporated association? I assume it is a group of one or more that are not incorporated, but I am just trying to work out where the definition of an unincorporated association is.

The Hon. J.J. SNELLING: There would have to be a group of two or more people who meet for a common purpose and are unincorporated, obviously.

The Hon. I.F. EVANS: So they have to meet and hold meetings and all those sort of things, or just be undertaking some activity?

The Hon. J.J. SNELLING: Yes; you would expect, if they were coming together for a common purpose, there would be some form of meeting or other group activity. Obviously, they would have to gather for the purpose for which they were formed.

The Hon. I.F. EVANS: So if two neighbours got together and decided to help a third neighbour who was in trouble for something, they are an unincorporated association?

The Hon. J.J. SNELLING: Firstly, they would not be a PCBU, so they would not come under the provisions of the act because they would not be a PCBU. Secondly—

The Hon. I.F. EVANS: Except for sections 27, 28—

The Hon. J.J. SNELLING: Let me finish and I will get to that. Secondly, an ad hoc gathering of two or more people to do something, no, would not make that group of people an unincorporated association. However, a group of neighbours who regularly gathered together as a group to provide assistance in the neighbourhood, yes, they may well be an unincorporated association, but an ad hoc gathering of a couple of people who go to mow the neighbour's lawn, no, they would not be an unincorporated association.

Clause passed.

Clauses 35 and 36 passed.

Clause 37.

The Hon. I.F. EVANS: I was interested in the issue of a 'fall or release' in clause 37(f) which provides:

the fall or release from a height of any plant, substance or thing; or

There seems to be no definition, no parameters, around any height at all. It is totally open.

The Hon. J.J. SNELLING: It would depend on what has fallen.

The Hon. I.F. EVANS: Yes, it may well depend on the substance, but ultimately there are liabilities that accrue as a result of it. I am a bit intrigued as to how that is going to work.

The Hon. J.J. SNELLING: It is consistent with the provisions in the current act which have been operating for however long and, to my knowledge, up until now they have not caused any confusion. Obviously the height would vary depending on the weight and design of whatever it was that was falling. I would not call a dangerous incident a piece of paper falling off a desk; however, a brick falling off a ladder may be a dangerous incident. It would just depend, and obviously the act cannot provide for every type of object which may fall with a corresponding height from which it might fall in order for it to be a dangerous incident. So, this is in complete accord with what has operated up until now without any confusion.

Clause passed.

Clauses 38 to 41 passed.

Clause 42.

The Hon. I.F. EVANS: Clause 42(2) provides:

A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if—

I am assuming that requires prior knowledge of the employer. I will give you an example. When I was in business, we had the pleasure of one of our bobcat drivers taking our bobcat out on New Year's Day to do a cashie for himself. He was drinking on the site, he stepped off the bobcat, his leg went between the bobcat bucket and the bobcat body, he snapped his leg in three places, and we paid WorkCover on that. WorkCover ruled that was our responsibility. We were not even receiving the money, we did not even know the booking had occurred, we did not even know the bobcat had left the premises. I am just asking about this clause which says 'a person who conducts a business or undertaking must not direct or allow a worker' and I just want it on the record that the employer actually has to have prior knowledge that the worker is using the equipment.

The Hon. J.J. SNELLING: In the example the member for Davenport provides, just because a claim may have been made against you under workers compensation does not mean that there was necessarily a breach of this act. They are two separate things.

The Hon. I.F. Evans interjecting:

The Hon. J.J. SNELLING: That's right: there was a liability. From what you tell me, I agree, it was unjust, but your liability is quite a separate thing. Your legal liability is separate from what is contained in this act. That aside, the operative word is 'allow' so, obviously, if someone takes a piece of equipment without your permission you have not allowed them to do so.

Clause passed.

Clauses 43 to 51 passed.

Clause 52.

The Hon. J.J. SNELLING: I move:

Page 39, line 28—Delete paragraph (d)

The amendment essentially is to correct a typographical error. This amendment removes the reference to multiple businesses or undertakings from clause 52(3), which relates specifically to negotiations for a work group in a single person conducting a business or undertaking and so paragraph (d) is unnecessary. Clause 56 relates to negotiations for a work group that involves more than one PCBU, and so paragraph (d) will remain in clause 56.

This is a typographical amendment recommended by Safe Work Australia and the Parliamentary Counsel's Committee, which has been overseeing the drafting of the model act. The amendment will be adopted by all jurisdictions in their work health and safety legislation. The intent and the outcome of the provision will remain the same.

Amendment carried; clause as amended passed.

Clauses 53 to 67 passed.

Clause 68.

The Hon. I.F. EVANS: I move:

Page 46, after line 9—Insert:

(3a) Subsection (2)(g) does not extend beyond—

(a) a person who works at the workplace; or

(b) a person who is involved in the management of the relevant business or undertaking; or

(c) a consultant who has been approved by—

(i) the Advisory Council; or

(ii) a health and safety committee that has responsibilities in relation to the work group that the health and safety representative represents; or

(iii) the person conducting the business or undertaking at the workplace or the person's representative.

This amendment is simply trying to restore the bill back to what is in the act in regard to the health and safety rep's capacity to bring other people onto the site. Under the government's bill they will be able to bring anyone they want on, à la their union mate who they want to bring on for some purpose, or an inquiring journalist who might want to come on and do a job on an employer.

Under the current act and under our amendments it simply allows for a suitably qualified consultant. We do acknowledge that some of the unions, etc., will have suitably qualified people, but we think that it should be restricted to what is in the current act. That is the purpose of the amendment.

The Hon. J.J. SNELLING: The government opposes the amendment. The amendment is an attempt to fetter the powers and functions of a health and safety representative in the workplace. With regard to the definition of 'any person', section 68(2)(g) of the bill provides that:

In exercising a power or performing a function, the health and safety representative may—

whenever necessary, request the assistance of any person.

It has raised some concerns that a health and safety rep could ask a member of the media or an unknown bystander to assist them. SafeWork SA has received Crown Law advice in the matter, which is provided to Business SA, which makes it clear that section 68(2)(g) should be read in the context of other specific provisions relating to the powers and functions of health and safety reps; in particular, the combination of clauses 68(2)(b) to (d), which identify the specific power of a health and safety rep to accompany inspectors and to attend interviews with the consent of workers they represent.

The power in clauses 71(4) and (5), which allow a PCBU to refuse access to any other person identified by the health and safety rep, suggest that in most cases it is anticipated that the health and safety rep will know ahead of time that he or she needs assistance and is able to ask an appropriate person whom the PCBU approves of. It is highly unlikely that in an emergency situation the only person who could give assistance to a health and safety rep would be a journalist. It is also unlikely that there would be any situation where a journalist would be able to provide any appropriate assistance in relation to the health and safety rep's powers and functions.

Crown advice has also confirmed that it would never be within a health and safety rep's power under the bill to invite a journalist to film some alleged breach. The PCBU would be fully entitled to exercise their right to refuse entry should a health and safety rep attempt to bring a journalist onto the premises.

Amendment negatived; clause passed.

Clauses 69 to 171 passed.

Clause 172.

The Hon. I.F. EVANS: I move:

Delete this clause and substitute:

172—Protection against self-incrimination

A person is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

Clause 172 deals with privilege against self-incrimination. The government wishes to take that privilege away. It is effectively what I would call losing your right to silence because you are forced to answer questions. We are fundamentally opposed to that for all the reasons we have argued previously in this chamber, so I do not really think I need to expand further. I think the house is well aware of the opposition's views about people having the right to silence, or self-incrimination. The government wishes to take away privilege against self-incrimination. We think the privilege against self-incrimination should be maintained.

The Hon. J.J. SNELLING: The government opposes the amendment. The approach adopted in this provision already operates in other statutory frameworks where the public's good is balanced against the individual's right to silence. Clause 172 of the bill provides that the privilege against self-incrimination is abrogated, including where the regulator requires the production of documents and answers to questions. This means that the person must comply with requirements made under those provisions of the bill, even if it means that they may be incriminated or exposed to a potential penalty.

The right to silence is a common law right and, where the right is not absolute, it can be expressly excluded by statute. Generally, it is excluded where it is perceived that the public interest outweighs the specific rights of the individual. There are many examples of statutes where the privilege against self-incrimination has been abrogated. For example, section 172 of the bill is similar to section 91 of the Environment Protection Act 1993. The exclusion or limitation of the common law privilege is often drafted into legislation where there are offences against a body corporate and its officers. For example, in section 13(16)(a) of the corporations act 2001, the commonwealth removes the privilege for a body corporate.

The bill recognises that the right to silence is clearly capable of limiting the information available to inspectors or the regulator which, in turn, may compromise their ability to ensure ongoing work health and safety protections. Clause 172(2) provides for use immunity, which means that the information the individual gives to the regulator is not admissible as evidence against that individual in civil or criminal proceedings. So, this strikes a balance between the recognition of the common law right to silence and the needs of the regulator or inspectors to obtain information.

The Hon. I.F. EVANS: To assist the committee, having lost that amendment and others, I have no need to proceed with amendments Nos 14 to 18 standing in my name.

Amendment negatived; clause passed.

Clauses 173 to 188 passed.

Clause 189.

The Hon. I.F. EVANS: This clause deals with it being an offence to impersonate an inspector. Who would investigate that issue? Would it be the police or the OHS inspectors themselves?

The Hon. J.J. SNELLING: SafeWork SA.

The Hon. I.F. EVANS: I assume the inspector has to carry an authorised identification, and all those sorts of things, and display it or identify themselves before they question people?

The Hon. J.J. SNELLING: Yes. I am advised inspectors carry ID, which they have to produce.

The Hon. I.F. EVANS: The reason I asked the question was that, when one of my constituents was under investigation by another department, the investigators, who were with the special investigations branch of Families SA, went to the council; and it is recorded in all the council's documentation that they were detectives. When we reported it to the police, they wrote back to me saying that it was not in the charter of the Anti-Corruption Branch for the police to investigate whether someone had impersonated a police officer, which surprised me. I just wanted to check who is obligated to investigate the impersonation of an inspector, but it is SafeWork SA.

Clause passed.

Clauses 190 to 246 passed.

Clause 247.

The Hon. J.J. SNELLING: I move:

Page 108, line 23—Delete 'the business' and substitute:

a business

Again, this is a typographical amendment recommended by Safe Work Australia and the Parliamentary Counsel's Committee, which have been overseeing the drafting of the model act. The amendment will be adopted by all jurisdictions in the work, health and safety legislation. The amendment provides consistency of terminology and does not alter the intent of the provision.

Amendment carried; clause as amended passed.

Clauses 248 to 273 passed.

Clause 274.

The Hon. I.F. EVANS: I move:

Page 116, after line 17—Insert:

(7) An approved code of practice or the variation of a code of practice is subject to disallowance of Parliament.

(8) The Minister must ensure that each approved code of practice or variation is laid before both Houses of Parliament within 6 sitting days after it is published in the Gazette.

(9) If either House of Parliament passes a resolution disallowing an approved code of practice or the variation of a code of practice, then the code of practice or variation ceases to have effect.

(10) A resolution is not effective for the purposes of subsection (9) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not all fall with the same session of Parliament) after the day on which the code of practice or variation was laid before the House.

This deals with the simple principle of making the codes of practice a disallowable instrument. Under the government's bill they are not a disallowable instrument. There are literally thousands of pages of codes.

The devil in this legislation is in the detail about the codes. There are codes to do with all sorts of industries and what they have to do in relation to heights, scaffolding and all those sorts of things. It was the detail in the codes, for instance, that the Housing Industry Association was using to say that this legislation would push up the price of housing by about $12,000 for a single storey house and $21,000 for a double storey house.

That detail was not in the bill, as such: it was in the codes. Our view is that the codes should be a disallowable instrument, which means the parliament—either house of parliament, by way of motion—can disallow a code if they think it is putting an unrealistic expectation onto an industry. We think it is good practice to have those codes as a disallowable instrument. That is the nature of the amendment.

The Hon. J.J. SNELLING: The government opposes the amendment standing in the name of the member for Davenport. Codes of practice, under the model Work Health and Safety Act, are developed through a tripartite process into Safe Work Australia that involves business and industry groups, unions and government.

Codes of practice, under the model WHS Act, are not legislative instruments and only have evidentiary status. They can be used as evidence of compliance, but they do not create any legal presumption against a defendant. In this way, they should not be subject to disallowance by parliament.

Under the OHSW Act, codes of practice have different legislative standing. Where a person fails to comply with a code of practice, they are presumed to have failed to exercise the standard of care required under the act. Because codes of practice have legislative standing under the OHSW Act, they are subject to disallowance by parliament.

Amendment negatived; clause passed.

Clauses 275 and 276 passed.

The Hon. I.F. EVANS: I can advise, as a result of the previous votes of my amendments, I have no need to proceed with amendment No. 20 and I have no further questions.

Schedules 1 to 5 passed.

Schedule 6.

The Hon. J.J. SNELLING: I move:

Page 141, line 28 [schedule 6, clause 19(2)—Delete '6' and substitute:

12

Safe Work Australia has agreed that health and safety representative training under the pre-harmonised laws is recognised for 12 months instead of six. Agreed to nationally by stakeholders, it should be that it would be impractical to expect all health and safety reps to be retrained within a six-month period from 1 January 2012. The agreed transitional provisions are contained in Safe Work Australia's published transitional principles implementing the model WHS Act. The amendment does not alter the intent of this provision.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.J. SNELLING (Playford—Treasurer, Minister for Workers Rehabilitation, Minister for Defence Industries, Minister for Veterans' Affairs) (18:53): I move:

That this bill be now read a third time.

I thank the members for their interest, particularly the member for Davenport, and I thank officers for their assistance.

Bill read a third time and passed.


At 18:54 the house adjourned until Wednesday 23 November 2011 at 11:00.


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