2011

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 185

EXPLANATORY STATEMENT

WORK HEALTH AND SAFETY (NATIONAL UNIFORM LEGISLATION) IMPLEMENTATION BILL 2011

GENERAL OUTLINE

This Bill provides for the implementation of the Work Health and Safety (National Uniform Legislation) Act.  That Act implements the Northern Territory’s obligation under the Council of Australian Governments Intergovernmental Agreement on the national harmonisation of occupational health and safety laws.  

The Work Health and Safety (National Uniform Legislation) Implementation Bill (WHS (NUL) Implementation Bill) contains a range of consequential amendments to the Northern Territory statute book as a result of the commencement of the Work Health and Safety (National Uniform Legislation) Act 2011.  The most notable amendments are to the Workers Rehabilitation and Compensation Act and the Dangerous Goods Act.  The Implementation Bill also repeals the existing Workplace Health and Safety Act that is being replaced by the Work Health and Safety (National Uniform Legislation) Act.  

The Implementation Bill also makes amendments to accommodate the new administration arrangements for the regulator (the Work Health Authority) and the Work Health Court under the new Work Health Administration Act.  This new Act has been necessitated by the national reforms and the implementation of the WHS (NUL) Act.

NOTES ON CLAUSES

Part 1 – Preliminary Matters

Clause 1.	Short Title.

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Work Health and Safety (National Uniform Legislation) Implementation Bill 2011.

Clause 2.	Commencement.

This is a formal clause that provides that the Act commences on the date fixed by the Administrator by Gazette notice.

Part 2 - Repeal

Clause 3.	Repeal	

This clause provides that  Workplace Health and Safety Act 2007 (Act No. 31 of 2007) is repealed.

Part 3 Amendment of various laws 

Division 1 – Workers Rehabilitation and Compensation Act

Clause 4.	Act amended

Clause 4 states that this Part amends the Workers Rehabilitation and Compensation Act (WRC Act). 

Clause 5	Section 3 amended

Clause 5 provides for amendments to the definition section.

The definitions of “Executive Director”, “Judicial Registrar”, “managing magistrate” and “Registrar” are being omitted.

The following definitions are being inserted:

‘acting in an official capacity’ relates to the exercising of the powers and functions of an inspector under the WRC Act.  

‘inspector’ is defined as an inspector under section 7A.

“registrar” is defined to mean both a registrar of the Work Health Court and a judicial registrar of the WHC.  

Subclause 5(3) amends the definition of “appointed member” to accommodate changes in the administration arrangements relating to the regulator.

Subclause 5(4) amends the definition of “Authority” necessary as a result of the repeal of the Workplace Health and Safety Act (WPHS Act). 

Clause 5(5) amends the definition of “Court” to reflect the fact that the Work Health Court is now to be established under the Work Health Administration Act rather than the Workers Rehabilitation and Compensation Act.   

Clause 6 – Part 2, Division 1 heading inserted

This clause inserts a new heading relating to the powers of the Work Health Authority (the Authority).  This new division is being inserted to clearly specify the powers and functions of the Authority under the WRC Act.  It reflects the new administrative arrangements where the Authority is to be established under the Work Health Administration Act but the powers and functions of the Authority will be set out in the separate relevant Acts ie the WRC Act and the Work Health and Safety (National Uniform Legislation) Act (WHS (NUL) Act). 

Clause 7 – Section 6 amended

Clause 7(1) omits current subsections 6(1) and (3). 

Clause 7 generally amends section 6 of the WRC Act to insert additional functions of the Authority to clarify that, in addition to the detailed functions already specified in section 6, the Authority also has the general functions of administering the WRC Act, overseeing compliance and enforcement under the Act and any other function conferred by the Act.

Clause 8 – Section 7 replaced

Clause 8 inserts a new section 7 that relates to the powers of the Authority to obtain information for the purpose of carrying out its functions.  Currently the Authority relies on the powers set out in the WPHS Act which applied the Authority’s powers of inquiry to related acts, which included the WRC Act.  

Now that the WPHS Act is being replaced by the WHS (NUL) Act, which does not allow for powers under that Act to be exercised in relation to any other Acts, it is necessary to set up specific inquiry powers for the Authority in the WRC Act.

These inquiry powers of the Authority under new section 7 mirror the existing inquiry powers under the WPHS, with technical changes to bring the provision into line with current drafting practice.  

The powers include the ability for the Authority to require persons to attend a hearing, answer questions and produce documents.

It is an offence for a person to fail to comply with a requirement of the Authority with a maximum penalty of 100 penalty units.  This offence mirrors current section 14 of the WPHS Act.

However, it is a defence for a person to establish a reasonable excuse for not complying with a requirement, which could include that complying with the requirement may tend to incriminate the person.

Clause 9 – Division 2 inserted

Clause 9 inserts a new subdivision into Part 2 of the WRC Act providing for the appointment, and the powers and functions, of inspectors under the WRC Act.

Currently the Authority relies on the powers of workplace safety officers to undertake authorised investigations and provide advice to employers and workers in relation to the WRC Act as a ‘related act under the WPHS Act. 

Now that the WPHS Act is being replaced by the WHS (NUL) Act, which does not allow for inspectors under the WHS (NUL) Act to exercise powers or perform functions under another Act, it is necessary to establish a separate inspector role for the purposes of the WRC Act.  

These proposed new inspectors and their powers and functions mirror the existing workplace safety officers’ powers under the WPHS Act, with technical changes to bring the provision into line with current drafting practice.  Some changes have also been made to ensure their powers and functions are consistent with the inspectors under the WHS (NUL) Act.  It is anticipated that most inspectors under the WHS (NUL) Act will also be appointed as inspectors under the WRC Act.

Proposed new section 7A provides for the appointment of inspectors by the Authority.  This replaces section 15 of the current WPHS Act but provides for the added requirement that inspectors must be public sector or council employees or the holder of a statutory authority.  Alternatively, they can be a person of a prescribed class.  These requirements are standard and provide a safeguard to ensure that only people with the appropriate level of authority can be appointed.

Proposed new section 7B provides for the Authority to issue inspectors with identity cards.  This section reflects current section 16 of the WPHS Act.  However, it also provides that a single card may be issued where a person is appointed as an inspector under both the WHS (NUL) Act and the WRC Act.

Proposed new section 7C of the WRC Act provides that a person ceases to be an inspector under the Act when the person ceases to be eligible under section 7A(2).  This means, for example, that if a person ceases to be a public servant, the person also ceases to be an inspector under the WRC Act.  This prevents a NTWS employee inadvertently continuing to be an inspector, even when they resign from their position in the public service.

Proposed new section 7D lists the main functions of inspectors under the WRC Act.  This provision replaces current section 17(1) of the WPHS Act.  

Proposed new section 7E provides that inspectors are subject to the directions of the Authority.  There is no existing provision to this effect in the current WPHS Act, although this relationship is implicit.  It is preferable to set this relationship out expressly.

Proposed new section 7F replaces current sections 68 and 71 of the WPHS Act and allows inspectors to use reasonable force in exercising a power under the WRC Act and to be assisted by other persons, as necessary.

Proposed new section 7G replaces current section 72 of the WPHS Act and empowers an inspector to require (by written notice) a person to provide written answers to questions or to produce documents or information.  Failure to comply a notice, without a reasonable excuse, is publishable by a maximum penalty of 100 penalty units (currently $13,700).

Proposed new section 7H replaces current section 67 of the WPHS Act and sets out when an inspector may enter a place.  An inspector may enter with the consent of the occupier, in accordance with a warrant or (if it is a workplace) at any time during normal working hours if there has been reasonable notice.  Proposed new section 7H(2) then sets out certain information that an inspector must provide to an occupier when seeking consent.  Proposed new section 7H(3) provides that an inspector may remain in the place for as long as is reasonably necessary.  Of course, where consent has been given, it can be revoked at any time.

Proposed new section 7J sets out the powers of inspectors once they have entered a place in accordance with the Act.  Section 7J replaces current section 70 of the WPHS Act, with the necessary changes reflecting the fact that the powers in section 70 relating to work health and safety matters are not necessary.  For example, there was no need to duplicate the powers relating to taking samples workplace materials.  It is an offence punishable by a maximum penalty of 20 penalty units ($2,740) to fail to comply (without reasonable excuse) with the requirement of an inspector to answer questions, provide documents or information or provide reasonable assistance.  

Proposed new section 7K replaces current section 69 of the WPHS Act which allows for an inspector to apply to a magistrate for a search warrant.  Section 7K(4) sets out the information that must be contained in a warrant.  Section 7K(5) requires the inspector to produce the warrant on the request of the occupier, employer or person at the place.
  
Proposed new section 7L replaces the current offence in section 73 of the WPHS Act of obstructing an inspector.  The current penalty of 100 penalty units ($13,700) or 6 months imprisonment applies.

Proposed new section 7M provides for a new offence of giving an inspector misleading information.  This is a standard offence provision and was overlooked in the current WPHS Act.  The offence carries a maximum penalty of 200 penalty units ($27,400) or 12 months imprisonment.  The offence does not apply where the person draws the misleading aspect of a document to the inspectors attention and corrects the information as far as possible.

Clause 10 – Section 9 amended

Clause 10 amends section 9 which relates to the functions of the Workers Rehabilitation and Compensation Advisory Council (the Council).  This clause is omitting a general paragraph providing the Council with any functions as assigned to it under the WRC Act.  This clause is to be replaced by a more specific provision that the Minister may direct the Council to perform other advisory functions.  This clarifies that the Minister may, for example, provide a direction to the Council to look into and prepare a report on a specific issue relating to workers rehabilitation and/or compensation. 

Clause 11 – Section 10 amended

Clause 11 amends section 10(1)(a) to reflect the new administrative arrangements relating to the Work Health Authority under the new Work Health Administration Act.  Under that new Act, there is no longer to be a separate statutory office of Executive Director of NT WorkSafe as that position is superfluous and confusing given that the current Executive Director of NT WorkSafe also has a separate role as Executive Director of the Division under the Public Sector Employment and Management Act.  The statutory office of Executive Director of NT WorkSafe is currently only appointed for the purposes of constituting the Authority and sitting on the Advisory Councils under the WRC Act and the WPHS Act.  Instead of having this additional statutory office, a person will now be appointed to be the person constituting the Work Health Authority and that same person will be referenced under the WRC Act to sit on the Council.  

Clause 12 – Section 13 amended

Clause 12 amends section 13 to clarify that at least half of the members of the Council constitute a quorum.  Currently section 13 provides that a quorum is constituted by at least 5 members plus the Chair.  However, the Council may be constituted by less than 10 members (and even theoretically less than 5 members).  This means that if there was a sudden reduction in the number of members of the Council (eg a few members might suddenly resign) then it may not be possible for the Council to make any decisions.  This amendment will address this. 

Clause 13 – Section 72A inserted

Clause 13 inserts new section 72A relating to the enforcement of compensation that has not been paid to a worker who is entitled to compensation under section 71 of the WRC Act (compensation for permanent impairment).  

This provision is currently in section 97(2A) of the WRC Act and provides for the application process for a worker to recover the compensation they are entitled to.  Section 97 appears in Part 6 of the WRC Act which provides for the establishment and operation of the Work Health Court.  However, now that the Work Health Court is also to have wide jurisdiction under the WHS (NUL) Act, it is no longer appropriate for the Court to be established under the WRC Act.  Therefore Part 6 of the WRC Act is being taken out of the WRC Act and put into a new Work Health Administration Act.  

Current section 97(2A) applies only to work health compensation matters and should be retained in the WRC Act rather than transferred to the Work Health Administration Act.  Accordingly, section 97(2A) of the WRC Act is being moved to the appropriate part of the WRC Act that deals with compensation amounts and will be renumbered as section 72A.  There are also technical amendments made to the existing provision to bring it into line with modern drafting practice.  

Clause 14 – Part 6 repealed

Clause 14 repeals current Part 6 that provides for the repeal of the current provisions of the WRC relating to the establishment and operation of the Work Health Court.  

The Work Health Court is to be given wide jurisdiction under the WHS (NUL) Act and therefore it is no longer appropriate for the Court to be established under the WRC Act.  Therefore Part 6 of the WRC Act is being taken out of the WRC Act and put into a new Work Health Administration Act.  

Clause 15 – Section 103A amended

Clause 15 inserts a definition of Rules to make it clear that references to Rules in Division 1 of Part 6A of the WRC Act, (which Part relates to mediation for dispute resolution) are references to rules of the Work Health Court under the new Work Health Administration Act.  

Clause 16 – section 104 amended

Clause 16 makes a technical amendment to omit a reference to section 94 under Part 6 of the WRC Act that is being repealed.

Clause 17 – Section 105 amended 

Clause 17 amends section 105 to change a reference from ‘shall’ to ‘must’.  This is a technical amendment to bring the section into line with modern drafting practice.

Clause 18 – Section 108 amended

Clause 18 amends section 108 to reflect the new definition of ‘registrar’.

Clause 19 - section 110A amended

Clause 19 amends section 110A to reflect the fact that operation of the Work Health Court and the making of court rules are to be provided for under the new Work Health Administration Act. 

Clause 20 – Part 6A, Division 4, heading amended

Clause 20 amends the heading in Division 4 of Part 6A to reflect the new definition of ‘registrar’.

Clause 21 – Section 114A amended

Clause 21 amends section 114A to provide clarity around the constitution of the Work Health Court.

Clause 21 also amends section 114A(1) and (2) to reflect the new definition of ‘registrar’.

Clause 22 – Section 116 amended

Clause 22 amends section 116 to provide clarity around the constitution of the Work Health Court.

Clause 23 – Section 121A amended

Clause 23 amends section 121A to clarify that this provision will only apply to contributions for administrative costs relating to proceedings under the WRC Act, and not the WHS (NUL) Act.

Clause 24 – Section 126A amended

Clause 24 amends section 126A to amend references to Part 6 which is being transferred to the new Work Health Administration Act.  

Clause 25 – Section 170 amended

Clause 25 amends section 170 to amend a reference to Part 6 which is being transferred to the new Work Health Administration Act.  

Clause 26 – Section 181 replaced

Clause 26 repeals current section 181 that provides for civil and criminal immunity for the Authority and officers under the WRC Act.  It is being replaced by a provision that does the same thing but that is in line with modern drafting practice.  The way it is currently drafted is ambiguous as to whether the immunity extends to workplace safety officers, and members of the Council, the Scheme Monitoring Committee and the Nominal Insurer.  Section 181 is being amended to clarify that this is the case and also to amend the reference to officers to cover ‘inspectors’.

Clause 27 – Section 186B inserted  

Clause 27 inserts new section 186B which creates a new offence relating to the disclosure of information that is obtained during the exercise of a power or performance of a function under the WRC Act.  This offence provision is necessary to provide protection to the public from any potential misuse of information by inspectors under the WRC Act.  This provision was not necessary when the WRC Act relied on workplace safety officers under the WPHSA to perform compliance and enforcement functions under the WRC Act as the offence under section 18 of the WPHS Act covered this issue.  Now that inspectors are to be appointed under the WRC Act, it is necessary to insert an offence provision of this nature to protect against misuse. 

Disclosure of information obtained during an exercise of a power or performance of a function under the WRC Act is an offence with a maximum penalty of 200 penalty units or 2 years imprisonment.  This penalty brings the penalty into line with other similar offences in the NT statute book.  The current offence is contained in section 18 of the WPHS Act.  The proposed new monetary penalty level is lower than contained under section 18 (500 penalty units or 2 years imprisonment), which was an anomalous penalty level and inconsistent with current policy.  The proposed new penalty level is more appropriate and still reflects the fact that disclosure of confidential information by an officer is a serious offence.  

The offence does not apply where the disclosure is made during legal proceedings or with the consent of the person.

Clause 28 – Part 11 inserted

Clause 28 provides for the transitional arrangements for the Council by inserting new Part 11 of the WRC Act.  New section 197 allows for the continuation of the Council and saves any decisions or matters of the Council made, or in operation, before the commencement of the WHS (NUL) Act.

Division 2 – Dangerous Goods Act

Clause 29 – Act amended

Clause 29 provides for the amendment of the Dangerous Good Act. 

Currently, the Dangerous Goods Act regulates certain classes of dangerous goods (as defined in the Dangerous Goods Code) in workplaces and other places.  The WHS (NUL) Act and regulations will, as at 1 January 2012 regulate the majority of the dangerous goods currently covered in the Dangerous Goods Act in the workplace, as well as dangerous goods in certain additional circumstances for the purposes of public safety.  The amendment to the Dangerous Goods Act itself does not require extensive amendment, because the Dangerous Goods Act and its legislative framework is still needed and will continue to cover the dangerous goods and matters not covered by the WHS (NUL) (such as explosives (including fireworks) ammunition and the licensing of gas fitters).

Clause 30 – Section 4 amended

Clause 30 amends section 4 of the Dangerous Goods Act which deals with the extent of the application of the Dangerous Goods Act.  Clause 30 inserts new subsections (4)(4) and (5) the effect of which is to provide that the Dangerous Goods Act only applies to dangerous goods insofar as they are not regulated by the WHS (NUL) Act, so that the WHS (NUL) Act is an ‘overriding Act’ for the purposes of the Dangerous Goods Act.  Section 4 continues to provide that the Transport of Dangerous Goods By Road and Rail) (National Uniform Legislation) Act is also an overriding Act for the purposes of the Dangerous Goods Act.

Division 3 – Other Laws 

Clause 31 Other laws amended

Clause 31(1) provides that the Acts set out in Schedule 1 are amended as provided for in that schedule.
 
Clause 31(2) provides that the Regulations set out in Schedule 2 are amended as provided for in that schedule. 

Part 4 – General Matters

Clause 32 Transitional regulations

Clause 32 provides regulation-making powers for transitional matters relating to the WHS (NUL) Act and regulations and the Work Health Administration Act.  

Clause 33 – Expiry of Act

Clause 33 provides that all of the Act (other than Part 1 and section 32) expire the day after the Act commences.  This is because the Act is an amending act and once the amendments have been made to the various Acts, it is unnecessary to retain the amending Act on the statute books.

However, the regulation-making powers for transitional provisions must be retained as the transitional arrangements can be ongoing for some time.  Accordingly, subclause 33(2) allows for the regulation making power at clause 32 to continue for an additional two years.

Schedule 1 – Other Acts amended

Schedule 1 provides for a range of technical amendments to other Acts.  These amendments include changing references to the WPHS Act and replacing them with references to WHS (NUL) Act or regulations.  Additionally, there are a range of amendments to accommodate the change in administrative arrangements for the Work Health Court and the Authority under the Work Health Administration Act. 

Schedule 2 – Regulations amended

Schedule 2 provides for a range of technical amendments to regulations.  These amendments include changing references to the WPHS Act and replacing them with references to WHS (NUL) Act or regulations.  Additionally, there are a range of amendments to accommodate the change in administrative arrangements for the Work Health Court and the Authority under the Work Health Administration Act.