Alister Henskens portrait
Alister Henskens portrait

Work Health And Safety Amendment Bill 2018

worker operating a forklift

Mr ALISTER HENSKENS ( Ku-ring-gai ) ( 12:00 :18 ): The Work Health and Safety Act 2011 is one of the important reforms of this Coalition Government. Its predecessor, the Occupational Health and Safety Act, was an outlier compared to the legislation in other States of the Commonwealth. It was unfair and its strict liability was unduly onerous upon business. The new Work Health and Safety Act 2011 is, by and large, working in a much fairer and better way, while still providing robust protections to ensure safe places of work. I speak in support of improvements to the Act proposed to be brought through the Work Health and Safety Amendment Bill 2018.

The bill will help the work health and safety regulators to administer the Work Health and Safety Act, including by allowing work health and safety inspectors to require interviews to be recorded under section 185A, giving work health and safety inspectors power to obtain information from outside New South Wales where relevant to a work health and safety investigation or the Work Health and Safety Act under section 155A, and reducing challenges to the validity of regulator appointments and delegations during court proceedings under section 233A.

These amendments will assist the regulators in their vital roles of monitoring and enforcing compliance with the Work Health and Safety Act, resulting in workers and businesses being better protected against harm, and safety standards being upheld. The approach of SafeWork NSW to work health and safety regulation considers the level of risk, public interest and due diligence efforts when monitoring and enforcing work health and safety compliance with businesses and workers. This approach acknowledges the different capacities of businesses and workers, and enables SafeWork NSW to respond effectively to work health and safety matters on a case‑by‑case basis.

The bill will assist SafeWork NSW in its regulatory approach to work health and safety, as the amendments contained in the bill encourage an improvement in compliance and enhance the regulator's investigative powers. In particular, the amendments will strengthen the ability of SafeWork NSW to respond effectively and enforce compliance for high-risk work health and safety incidents where there is a possibility of serious harm, the case is of high public interest, or where due diligence efforts may be lacking. For example, investigations into high‑risk matters involving death and/or lifelong injury, illness or disability involve interviewing relevant parties.

The amendment to enable the recording of interviews on notice, provided that the person being questioned is informed of the recording, but regardless of whether or not the interviewee consents to the interview being recorded, will facilitate the collection of accurate, timely and objective data. This data will assist SafeWork NSW in determining and improving compliance and enforcement approaches going forward. Interview recordings will also reduce the chances of interview content being disputed and thereby delaying investigations or court hearings. This will help SafeWork NSW to improve enforcement practice. This brings the legislation in alignment with the general criminal proceedings process where recordings of interview have been made for many years.

The amendment to provide the regulator power to issue notices across State and Territory borders to obtain information and documents will assist SafeWork NSW in investigation and enforcement measures, particularly for some high-risk sectors and workers. As we have heard, technology has changed the way we work. In recent years there has been an increase in fly-in fly-out construction and mining workers employed in New South Wales. There is also a growing number of businesses operating in New South Wales that have their head office, data centres or control rooms located outside the State. The investigation of incidents in both of these scenarios is difficult. Without having a clear power to obtain documents and evidence outside of New South Wales, the admissibility of records obtained from interstate as evidence in legal proceedings may be challenged, and the ability of the regulator to compel a person located interstate to give evidence is unclear.

A practical example of this may occur when, following an incident where a worker has received several fractures after falling from a height at a workplace located in New South Wales, the owners of the businesses return to their interstate headquarters and refuse to return to New South Wales to be interviewed. As there is no clear power to serve notices interstate, the matter may not be able to be investigated properly. This is simply not acceptable. Giving the regulators powers to obtain records and information located outside New South Wales will help them identify and follow up on high-risk incidents, which in turn will assist in keeping workers in New South Wales safer. It will also assist workplaces understand their work health and safety obligations, improve compliance and encourage due diligence for low-risk work health and safety matters. Again, an analogy can be drawn with civil litigation where processes and subpoenas can be served interstate under the Service and Execution of Process Act.

I now turn to the last major amendment arising from the statutory review: preventing challenges to the validity of regulator appointments and delegations. This amendment also addresses high-risk work health and safety matters. Where matters are being prosecuted in court, this amendment reduces the risk of proceedings being delayed or dismissed due to businesses challenging the prosecution on the grounds of technical arguments of validity of regulator delegations or appointments. It will reinforce SafeWork NSW and the resources regulator as being credible and reduce the avenues for large businesses to dispute liability based on such technical arguments. It will further improve businesses' due diligence and compliance, and the effectiveness of regulator enforcement practices. The national work health and safety model law expressly permits States and Territories to insert local provisions relating to extraterritoriality, including the extraterritorial reach of offences.

I understand that several jurisdictions have already implemented such clauses in their work health and safety legislation. Other regulators also have the power to require interviews to be recorded regardless of whether consent has been given. As members have already heard, these amendments will help SafeWork NSW respond appropriately to work health and safety matters by encouraging and improving business compliance for low-risk work health and safety matters, and enhancing SafeWork NSW enforcement powers for high-risk work health and safety matters. I am confident the bill will improve compliance and enforcement outcomes, resulting in work health and safety improvements for the New South Wales community and ultimately save lives. As this is a very important legislative regulation, it is important that these changes are being brought forward to Parliament. I commend the Minister for this legislation and I commend the bill to the House.