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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK LEGISLATION AMENDMENT (ASBESTOS AND SAFETY
ERADICATION AGENCY) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Lambie and David Pocock)
FAIR WORK LEGISLATION AMENDMENT (ASBESTOS AND SAFETY
ERADICATION AGENCY) BILL 2023
OUTLINE
The Fair Work Legislation Amendment (Asbestos and Safety Eradication Agency) Bill 2023
(the Bill) amends the Asbestos Safety and Eradication Agency Act 2013 (ASEA Act) to
broaden the Asbestos Safety and Eradication Agency's (ASEA) functions which are currently
confined to asbestos.
The increase in silicosis and other silica-related diseases is deeply concerning and has raised
the need for urgent coordinated national action to reduce rates of silica-related diseases and to
support affected workers and their families. This Bill would expand the functions of the well-
respected ASEA to include coordinating action on silica safety and silica-related diseases. This
would include developing, promoting and reporting on a Silica National Strategic Plan which
will coordinate and track the progress of jurisdictions against nationally agreed targets. ASEA
would be renamed the Asbestos and Silica Safety and Eradication Agency (Agency) to reflect
these changes. The renamed Agency's functions will include responsibility for coordination,
awareness raising, research, reporting and providing advice to the government on silica.
Establishing and appropriately resourcing the renamed Agency as a national coordination
mechanism for action on silica-related diseases acts on the recommendations of the National
Dust Disease Taskforce (NDDT). The NDDT was established in 2019, and in June 2021
submitted a final report to the then Minister for Health and Aged Care recommending a national
approach to the prevention, early identification, control and management of silicosis and other
occupational dust diseases in Australia. An All of Governments' response to the NDDT's Final
Report was published in April 2022
The Bill would promote the right to safe and healthy working conditions by expanding the
current remit of ASEA to include prevention of silica-related occupational diseases. The
amendments would enhance the promotion of safe and healthy working conditions by setting
out the priority matters for the Silica National Strategic Plan. These would include, eliminating
or minimising exposure to respirable crystalline silica, raising silica safety awareness, and
improving research and national data. Workplace exposure to respirable crystalline silica is a
serious issue threatening the lives of Australian workers. The increase in silicosis and other
silica-related occupational diseases has raised the need for urgent national action and
coordination. Silica reform is complex and sits across multiple portfolios and jurisdictions.
ASEA's role as a coordinating agency reflects the jurisdictional nature of addressing asbestos,
and now silica.
The Bill would expand the Agency's functions to include a focus on silica safety and
coordination, awareness raising, reporting and providing advice to government on silica safety
and silica-related diseases. Further, this Bill would promote and assist current efforts to manage
silica risks in the workplace and eliminate silica-related diseases.
The Bill would promote the right to health by broadening the object of the ASEA Act to include
elimination of silica-related diseases. One of the Agency's key objectives would be to lead
coordinated and national action to eliminate asbestos and silica-related diseases by
collaborating with States, Territories and local governments, and other relevant persons on the
development of the Asbestos National Strategic Plan and Silica National Strategic Plan. The
Agency would also be required to undertake various activities in relation to encouraging,
coordinating and monitoring implementation of the plans and collaborating with governments
about asbestos and silica safety and related diseases.
The Bill would also expand the membership of the current Asbestos Safety and Eradication
Council (ASEC) to include appropriate representation from employee and employer
representatives and an expert in asbestos or silica-related matters. Eligibility would be
broadened to allow for persons with lived experience to be appointed to the Council. ASEC
would be renamed the Asbestos and Silica Safety and Eradication Council to reflect these
changes.
The amendments would complement the establishment of the National Occupational
Respiratory Disease Registry (NORDR), which will require reporting of silicosis and is aimed
at improving national data. There are links between the NORDR Bill and this Bill, but they are
distinct as NORDR will remain the responsibility of the Department of Health and Aged Care.
The amendments would move responsibility for the Silica National Strategic Plan from the
Department of Health and Aged Care to the Agency.
The amendments would not duplicate or undermine the role of other agencies, such as Safe
Work Australia, the national work health and safety policy body that is currently undertaking
a range of work related to respirable crystalline silica and silica-related diseases. Safe Work
Australia is responsible for national work health and safety policy and the model work health
and safety laws. It is intended that the Agency would work in lock step with other government
departments and agencies. The Government believes there is value in identifying a national
coordination body, and for this body to focus on preventing silica-related diseases as a priority.
The Agency is unique because it would report to both health ministers and work health and
safety ministers in relation to silica and asbestos.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This clause provides the commencement of the Bill is to be the day after it receives
Royal Assent.
Clause 3: Schedules
3. This clause gives effect to the provisions in Schedule 1 to the Bill.
Schedule 1-- Amendment of the Asbestos Safety and Eradication Agency Act 2013
Part 1 - Main amendments
Asbestos Safety and Eradication Agency Act 2013
Item 1: Title
4. This item would remove the word 'Asbestos' and substitute the words 'Asbestos and Silica'
to amend the name of the ASEA Act to 'Asbestos and Silica Safety and Eradication Agency
Act 2013'.
5. This amendment would reflect the expansion of functions related to silica. The addition of
functions related to the prevention of silica-related diseases is not intended to divert
attention or resources away from ASEA's important work on eradicating asbestos from the
built environment.
Item 2: Section 1
6. This item would amend the short title of the ASEA Act to reflect the new name.
Item 3: Section 2A
7. This item repeals and replaces the 'Objects' provision in the ASEA Act. New section 2A
would add references to silica safety and silica-related diseases to reflect the broader remit.
It would also implement Recommendation 3 of the 2019 ASEA Review, which identified
inconsistencies in how ASEA's role is described. This amendment would clarify and
strengthen the Agency's purpose and provide guidance on how it is to perform its existing
asbestos-related functions alongside the new silica related function.
Item 4: Section 3 (definition of Agency)
Item 5: Section 3
8. Section 3 of the ASEA Act contains definitions. Items 4 and 5 would amend section 3 to
include three new terms which streamline existing provisions and reflect the amendments
which would be made in this Schedule.
9. Item 4 would repeal and replace the existing definition of 'Agency' to reflect the new name.
10. Item 5 would add new definitions for:
• 'Asbestos and Silica Safety and Eradication Agency' with a cross reference to new
section 6 to reflect the new name.
• 'Asbestos and Silica Safety and Eradication Council' with a cross reference to new
section 28 to reflect the new name of the Council. A new definition is included
because the existing ASEA Act is inconsistent in the way it refers to the ASEC where
some provisions only use the term 'Council' and not its full name.
• 'Asbestos National Strategic Plan' with a cross reference to new section 5A.
Item 6: Section 3 (definition of Asbestos Safety and Eradication Council)
Item 8: Section 3
11. Item 6 would repeal the existing definition of ASEC.
12. Item 8 would update the way this body is referred to in the ASSEA Act. Rather than spelling
out the name in full, it would be referred to as the 'Council' which is defined to mean the
'Asbestos and Silica Safety and Eradication Council'. The ASEC would be renamed to
reflect the expanded remit of the Agency
Item 7: Section 3 (definition of Chair)
Item 9: Section 3 (definition of Council Member)
13. Items 7 and 9 would update definitions of 'Chair' and 'Council member'. The new
definition of Council means that the name does not need to be spelt out in full.
Item 10: Section 3 (definition of National Strategic Plan)
14. Item 10 would repeal the existing definition of 'National Strategic Plan' which refers to the
current asbestos plan (new section 5A). This Bill would provide for a new 'Silica National
Strategic Plan' and the asbestos plan name needs to be updated to clearly distinguish the
two.
Item 11: Section 3
15. Item 11 would insert a new definition of 'National Strategic Plans' to provide for two
separate national strategic plans for asbestos and silica. Throughout the ASSEA Act, where
both plans are referred to, they would be referred to as the 'National Strategic Plans'.
16. Item 11 would also insert a new definition 'Silica National Strategic Plan' which would be
defined in new section 5B.
17. Item 11 would also insert a new, non-exhaustive definition of 'silica safety' which is similar
to the existing definition of 'asbestos safety'. Silica safety would include a broad range of
matters including matters relating to awareness, education and information sharing in
relation to respirable crystalline silica. This is intended to cover the full life cycle of silica
products, including the manufacture, supply, use and disposal where appropriate. Not all
forms of silica or silica products are hazardous. Although the definition of 'silica safety' is
broad, it is not intended that the Agency would have a role in relation to silica which does
not pose a risk to human health.
Item 12: Part 1A
18. Item 12 would repeal and replace existing Part 1A of the ASEA Act, which would be
renamed 'National Strategic Plans'. The Bill provides for two similar but distinct plans -
the Asbestos National Strategic Plan which already exists in the 'National Strategic Plan'
and a new plan for silica-related diseases.
Asbestos National Strategic Plan
19. Item 12 would insert a new definition of 'Asbestos National Strategic Plan' which is less
prescriptive than the existing section 5A to provide flexibility in the future, where priorities
and actions can be changed as needed without being restricted by the ASSEA Act. This
amendment would implement recommendation 2 of the 2019 ASEA Review, which
identified that while some prescription is useful to guide the development of a National
Strategic Plan, the legislation needs to provide sufficient flexibility to address emerging
issues and new priorities.
20. The new definition would reflect and expand the existing Asbestos National Strategic Plan
which would be renamed shortly after commencement of this Bill. The aim of the Asbestos
National Strategic Plan would be to eliminate asbestos-related diseases in Australia by
preventing exposure to asbestos fibres and to support workers and others who are affected
by asbestos-related diseases.
21. New paragraph 5A(1)(b) would set out the matters which must be addressed in the plan to
ensure there is a nationally consistent and coordinated approach to improving asbestos
removal, national data and awareness about asbestos safety and asbestos related diseases
and facilitating international collaboration.
22. New subsection 5A(2) would require a two-thirds majority of jurisdictions to agree to the
Asbestos National Strategic Plan for it to be a valid plan. The current plan has been agreed
to by all governments and this provision is included for clarity. It would provide a clear
threshold for when a plan has sufficient support to be valid.
23. On commencement the existing Asbestos National Strategic Plan would meet the
requirements of new section 5A because it has been agreed to by governments and
addresses the matters set out in new subparagraph 5A(1)(b).
Silica National Strategic Plan
24. New section 5B 'Silica National Strategic Plan' would be similar to the definition of the
Asbestos National Strategic Plan in new section 5A. The plan would aim to eliminate silica-
related diseases by preventing exposure to respirable crystalline silica and supporting
workers and others who are affected by silica-related diseases. New paragraph 5B(1)(b)
would set out the matters which must be addressed in the plan, including eliminating or
minimising exposure to respirable crystalline silica in workplaces, and improving research
and national data.
25. New subsection 5B(2) would require a two-thirds majority of jurisdictions to agree to the
to the Silica National Strategic Plan for it to be a valid plan. This would recognise that the
successful implementation of the plan requires commitment by the majority of
governments.
26. The Lung Foundation Australia is currently developing a Silica National Strategic Plan
pursuant to Recommendation 3(a) of the 2021 NDDT's Final Report to the Minister for
Health and Aged Care. This work would provide an important foundation upon which the
first Silica National Strategic Plan would be built.
27. Responsibility for implementing the NDDT's recommendations in relation to the
development of a National Silicosis Prevention Strategy and associated National Action
Plan, and a national coordination mechanism for action on silica-related diseases.
Item 13: Part 2 (heading)
28. Item 13 would repeal the existing heading for this part and substitute a new heading
'Asbestos and Silica Safety and Eradication Agency' to reflect the new name.
Item 14: Section 6
29. Item 14 would repeal section 6 of the ASEA Act, which establishes ASEA. The new section
6 would provide for the continuation of the body under a new name: the Asbestos and Silica
Safety and Eradication Agency.
Item 15: Subsection 8(1)
30. Section 8 of the ASEA Act sets out the functions of the Agency.
31. Item 15 would repeal existing subsection 8(1) and substitute a new provision, which would
build on and clarify the existing functions of ASEA. This reflects the proposed expanded
remit of the Agency and would implement relevant recommendations of the 2019 ASEA
Review. In particular:
• New paragraph 8(1)(c) would allow the Agency to provide advice to the Minister at
any time and not only when requested.
• New paragraph 8(1)(d) would refer to the Agency's function to collaborate, rather
than merely liaise with, other governments, agencies, and bodies and expressly refers
to international governments. This would better reflect ASEA's current collaborative
approach. For example, the Agency would be able to collaborate with Safe Work
Australia about the development and implementation of the Silica National Strategic
Plan.
• New paragraph 8(1)(e) would provide for the Agency to conduct, as well as
commission, research about asbestos safety, asbestos-related diseases, silica safety
and silica-related diseases.
• New paragraphs (8)1(f) to (h) would incorporate section 5 of the Asbestos Safety and
Eradication Agency Rule 2022 with modifications to include silica safety and silica-
related diseases. These functions would relate to awareness raising and promoting
consistent messages around asbestos safety, asbestos-related diseases, silica safety
and silica-related diseases.
Item 16: Subsection 8(3)
32. Item 16 would omit the words 'performing it' and substitute 'performing its' to correct a
grammatical error in the existing provision.
Item 17: Subsection 8(3)
Item 30: Paragraphs 29(1)(c) and (d)
Item 52: Subsection 42(3)
33. These items would make technical amendments to remove the words 'the National
Strategic Plan' and substitute 'National Strategic Plans' to reflect the change in the number
of plans as there will be a separate National Strategic Plan for asbestos and silica.
Item 18: After section 8
34. Item 18 would insert new section 8A and require the Agency to report on both asbestos
and silica national strategic plans. This would be a key part of the Agency's coordination
function providing a national snapshot on progress to the relevant Commonwealth and
State and Territory ministers.
35. The content of the reports would be flexible but is intended to cover progress in
implementing the national strategic plans and achieving national targets, as well as any
relevant activities that a jurisdiction is undertaking.
36. The asbestos report would be provided to ministers with interest in work health and
safety, health and environmental protection. For silica, the report would be provided to
ministers with interest in work health and safety and health.
37. New subsections 8A(3) and (5) would provide that reports must be prepared before 31
December in each financial year and must be made publicly available.
Item 19: Section 12 (heading)
Item 20: Subsections 12(1), (1A) and (2)
Item 23: Paragraph 24(1)(b)
Item 25: Division 1 of Part 5 (heading)
Item 27: Section 29 (heading)
Item 28: Paragraph 29(1)
Item 31: Subsections 29(2), (2A) and (3)
Item 32: Section 30 (heading)
Item 33: Subsections 30(1) and (2)
Item 34: Subsections 30A(1), (2) and (3)
Item 35: Division 2 of Part 5 (heading)
Item 36: Section 31 Item 41: Paragraph 40(d)
Item 41: Paragraph 40(d)
Item 42: Division 4 of Part 5 (heading)
Item 43: Section 41 (heading)
Item 44: Subsection 41(1)
Item 45: Subsection 41A(1)
Item 47: Paragraph 41A(2)(a)
Item 48: Sections 41B, 41C, 41D and 41E
Item 49: Subparagraph 41F(a)(ii)
Item 51: Subparagraph 41F(e)(iii)
38. These items would be consequential amendments to item 8.
39. Since all references to the full name of ASEC would need to be amended to reflect the new
functions related to silica, these amendments would remove the words 'Asbestos Safety
and Eradication' and streamline the legislation by using the term Council instead of spelling
out its full name.
Item 21: At the end of Division 1 of Part 3
40. Item 21 would insert a new section 14A to allow the CEO to request information from a
person in certain circumstances and an express permission for a person to provide the
requested information. Information that may be disclosed could include personal
information.
41. It is appropriate provide for the collection of personal information for the following
reasons:
• New paragraph 14A(1)(b) would provide that the CEO may request
information where the information is necessary to perform certain functions
and is not otherwise available. For example, the CEO could not request
information which is publicly available.
• New subsections 14A(5) and (6) would provide an express permission that a
person can rely on to provide the requested information, if they consider the
disclosure to the Agency is appropriate. This express permission would not
compel a person to provide information upon request.
• New subsection 14A(6) would provide that a person may disclose information
to the Agency in response to a request despite anything in a law of the
Commonwealth (other than the proposed ASSEA Act) or a law of a State or
Territory. This means a non-disclosure provision in other legislation that
would otherwise prevent information being disclosed to the Agency, does not
prevent its disclosure. The purpose of the amendment is to ensure information
necessary to support the Agency's research, data and reporting functions can
be collected. Silica issues are complex and require coordination and
information sharing across portfolios as well as jurisdictions. This amendment
is intended to facilitate information sharing between government agencies and
bodies. New section 14A is framed broadly to provide flexibility for the future.
For example, ASEA is very cooperative and in the future the Agency may form
partnerships with non-Governmental organisations and request information
from such bodies as well.
• Tracking progress against the national strategic plans and developing evidence
based research relies on input from a range of sources including all State and
Territory governments. The amendments will ensure that persons with relevant
information are able to provide that information to the Agency.
• The Agency's coordination, advice and reporting roles would rely on input
from a range of sources including all State and Territory governments. The
amendments would ensure persons with relevant information are able to
provide that information to the Agency. This would involve for example, data
on number of diagnosed cases of silicosis or other silica-related diseases in
each State and Territory. It would not include for example, a person's medical
record as that would not be necessary for the performance of the Agency's
functions. Failing to fulfil a request would not be an offence and broad
discretion will be retained by the person holding information. There could be
a range of legitimate reasons why a request may not be fulfilled, including if,
for example, providing the information requested would cause unnecessary
duplication of work and create an administrative burden on the person.
42. The new Agency would be subject to a range of obligations to ensure that the information
it obtains is handled appropriately
43. Personal information collected by the Agency is subject to the requirements of the Privacy
Act 1988 which governs its collection, use, disclosure, storage and disposal.
44. As Australian Public Service (APS) employees, the Agency's employees would be bound
by the APS Code of Conduct, including regulation 2.1 (duty not to disclose information)
which applies to information obtained by the Agency related to the performance of its
statutory functions. A breach of the Code of Conduct by an APS employee may lead to the
imposition of sanctions up to and including termination of employment.
45. The Criminal Code contains offences relating to the unauthorised disclosure of information
by current (and former) Commonwealth officers, including APS employees, punishable by
terms of imprisonment (of between two and seven years depending on the circumstances
of the offence).
Item 22: Subsection 23A(1)
46. Item 22 would provide that the CEO cannot delegate the new function under new section
14A to obtain information. Section 23A of the ASEA Act currently allows the CEO's
functions or powers to be delegated to any ASEA staff member. Due to the small size of
ASEA there are no senior executives who could be delegated to and allowing for delegation
beyond senior executives would be inappropriate for this function.
Item 26: Section 28
47. Existing section 28 of the ASEA Act establishes ASEC. 1714.
48. Item 26 would provide that ASEC would continue to exist as the Asbestos and Silica Safety
and Eradication Council. This will ensure continuity for the Council in its work relating to
asbestos.
Item 29: Paragraph 29(1)(b)
49. Item 29 would insert the words 'asbestos-related diseases, silica safety and silica related
diseases' after the word 'safety' to reflect the remit of the Agency.
Item 37: Paragraph 31(d)
50. Item 37 would remove the words '1 member' and substitute '2 members' to increase the
membership of the Council and provide for an additional member representing the interests
of workers. Silica-related diseases are occupational in nature and greater representation
from those representing workers is required.
Item 38: Paragraph 31(e)
51. Item 38 would remove the words '1 member' and substitute '2 members' to increase the
membership of the Council and provide for an additional member representing the interests
of employers. Silica-related diseases are occupational in nature and greater representation
from those representing employers is required.
Item 39: After paragraph 31(e)
52. Item 39 would insert a new paragraph 31(ea) to provide that the Council must include a
member with expertise relevant to asbestos safety, asbestos-related diseases, silica safety
or silica-related diseases. This amendment would ensure the work of the Council is
informed by a person who is an expert in relevant areas, for example an epidemiologist,
occupational physician, respiratory physician, or occupational hygienist.
Item 40: Subsection 32(3)
53. Item 40 would repeal the existing subsection 32(3) of the ASEA Act and substitute a new
provision. This new provision would replicate some of the eligibility criteria in the existing
subsection and add additional criteria.
54. New paragraph 32(3)(a) would expand the eligibility for appointment as a Council member
to include knowledge or experience in silica safety, silica-related diseases or representation
of, or providing support to persons with silica-related diseases and their families.
55. New paragraph 32(3)(b) would expand the eligibility for appointment to the Council as a
non-government representative to include a person who has or has had asbestos or silica-
related diseases or has lived experience as a family member of a person who is or has been
affected by asbestos or silica-related diseases.
56. There is some overlap between the new subparagraphs 32(3)(a)(iv) and (vii) and
32(3)(b)(ii) and (iv). New subparagraphs 32(3)(a)(iv) and (vii) would not require lived
experience. A person with professional experience in victim advocacy or undertaking
support groups for affected workers or their families would also be eligible. The new
subparagraphs 32(3)(b)(ii) and (iv) in contrast require lived experience supporting an
affected family member or as a carer or advocate. Persons with lived experience have a
unique perspective and the amendments would make it clear that they are eligible to be
appointed and contribute to the work of the Council as a member.
Item 46: Paragraph 41A(1)(b)
57. Item 46 would remove the number '4' and substitute '6' to increase the number of other
Council members that would be required to constitute a quorum of the Council. This would
reflect the increase to Council numbers.
Item 50: Paragraph 41F(b)
58. Item 50 would remove the word 'Asbestos' and substitute 'Asbestos and Silica' to reflect
the new name of the Council.
Item 52: Subsection 42(3)
59. Item 52 would remove the words 'the National Strategic Plan' and substitute 'either of the
National Strategic Plans' to reflect the change in the number of plans as there would be a
separate National Strategic Plan for asbestos and silica.
Item 53: At the end of section 42
60. Section 5A of the ASEA Act currently provides that the Asbestos National Strategic Plan
is taken to be a corporate plan for the purposes of the Public Governance, Performance and
Accountability Act 2013. This section would be repealed and replaced by the Bill and Item
53 would add a new subsection 42(4) to the ASSEA Act to provide that the annual
operational plan is taken to be a corporate plan for the purposes of the Public Governance,
Performance and Accountability Act 2013.
61. The National Strategic Plans set out what actions all governments will take and are not
appropriate as a corporate plan. In contrast, the annual operational plan would set out the
activities to be undertaken by the Agency and is a more appropriate plan to specify.
Item 54: Section 47
62. Item 54 would repeal section 47 of the ASEA Act and substitute a new provision.
63. This amendment would provide for a review of the Agency's role and functions to be
conducted five years after commencement of the amendment and completed within six
months. The new provision would have the same terms as the previous review requirement.
A review of the ASEA's role and functions was previously completed in 2019.
Part 2 - Application, saving and transitional provisions
Item 55: Definitions
64. Item 55 sets out three definitions used in Part 2:
• 'amended Act' means the Asbestos Safety and Eradication Agency Act 2013, as in force
after the commencement day;
• 'Commencement day' means the day this Part commences (day after Royal Assent);
• 'Silica Plan agreement day' means the day after the day the Silica National Strategic
Plan has been agreed to by at least 6 of the governments of the Commonwealth and
each State or Territory.
Item 56: Functions of the Agency - Silica National Strategic Plan
Item 60: Functions of the CEO of the Agency - annual operational plan
Item 61: Functions of the Council - Silica National Strategic Plan
65. These items would provide that plan related functions of the new Agency, the CEO and the
Council do not have effect until the Silica National Strategic Plan has been agreed upon by
a two-thirds majority of jurisdictions.
66. These transitional provisions do not have a sunsetting date because it is expected that a
Silica National Strategic Plan would be finalised and agreed to within one to two years at
most. There is strong and unified commitment by governments to address this issue. In the
unlikely event that a plan was not agreed to in a timely manner, the review of the Agency's
functions required in item 54 would provide an opportunity to review the insertion of silica-
related functions. Such a review would need to consider whether it is appropriate to remove
the additional functions and reconsider the purpose of the Agency.
Item 57: Functions of the Agency -annual report relating to implementation of Asbestos
National Strategic Plan
67. Item 57 would prescribe the timing for the first annual report relating to the Asbestos
National Strategic Plan after commencement. This report would be due before the report
relating to the National Silica Strategic Plan because there is already a well-established
asbestos plan in existence. The current asbestos plan has been agreed to by all governments.
Item 58: Functions of the Agency - annual report relating to implementation of Silica
National Strategic Plan
68. Item 58 would prescribe the timing for the first annual report relating to the Silica National
Strategic Plan after commencement. Annual reports are tied to financial years and there are
two different dates contemplated to ensure that the content of the first report is provided as
soon as practicable but is also sensible given plans will be in their very early stages.
69. If the Silica National Strategic Plan is agreed to by the requisite number of Australian
governments (the Silica Plan agreement day, see item 55) on a day in the first half of a
financial year, the first report would be due before the end of 31 December in the following
year. The report would have to include information relating to matters covered by the Silica
National Strategic Plan, for example, preventing exposure to respirable crystalline silica in
the workplace and activities undertaken by governments in the period between the plan
start date and the end of the first financial year (that is, 30 June the following year). This
report would be a snapshot of activities already underway in jurisdictions and a benchmark
which could be used to inform future reports. Because the plan would be in its very early
days at this time there may be limited progress to report on and separate arrangements for
the first report are necessary.
70. If the Silica National Strategic Plan is agreed to by the requisite number of Australian
governments (the Silica Plan agreement day, see item 55) on a day in the second half of a
financial year, the first report would also be due before the end of 31 December in the
following year. The content of the report would be different though and would be required
to relate to progress made by governments in implementing the Silica National Strategic
Plan. This could cover, for example, how governments have begun to set up monitoring
and have begun implementing measures to meet targets.
Item 59: CEO of the Agency
Item 62: Members of the Council
71. These items would preserve the appointments of the CEO and members of the Council.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Legislation Amendment (Asbestos and Safety Eradication Agency) Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The Bill positively engages the right to physical and mental health by promoting 'industrial
hygiene' which involves taking steps to protect the work environment by reducing workers'
exposure to substances that impact upon human health including where workplace exposure to
respirable crystalline silica results in people developing serious health conditions. Further, it is
likely that conditions such as mesothelioma, asbestosis and silicosis are diseases for the
purposes of Article 12(2)(c) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
The Bill would promote the right to health by broadening the object of ASEA Act to include
elimination of silica-related diseases. One of the Agency's key objectives would be to lead
coordinated and national action to eliminate asbestos and silica-related diseases by
collaborating with States, Territories and local governments, and other relevant persons on the
development of the Asbestos National Strategic Plan and Silica National Strategic Plan.
The Agency would also be required to undertake various activities in relation to encouraging,
coordinating and monitoring implementation of the plans and collaborating with governments
about asbestos and silica safety and related diseases. New subsection 8(1) would provide that
the Agency's functions would broadly include eliminating or minimising exposure to
respirable crystalline silica, raising silica safety awareness, and improving research and
national data. Therefore, the Bill would promote the right to health as the Agency's functions
would be directed towards preventing and eliminating asbestos and silica-related diseases.
The Bill would provide for the Chief Executive Officer of the Agency to request information
from a person in certain circumstances and an express permission for a person to provide the
requested information. New subsections 14A(5)-(6) would provide an express permission that
a person can rely on to provide the requested information, if they consider the disclosure to the
new Agency is appropriate. This express permission would not compel a person to provide
information when requested. New subsection 14A(6) would provide that a person may disclose
information to the Agency in response to a request despite anything in a law of the
Commonwealth (other than the ASEA Act) or a law of a State or Territory. This means that a
non-disclosure provision in other legislation that would otherwise prevent information being
disclosed to the new Agency, does not prevent its disclosure. This amendment engages the
right to privacy because information that may be disclosed could include personal information
and non-disclosure provisions that otherwise apply may be overridden. To the extent that the
right to privacy is limited by the amendment it is considered that limitation is necessary to
achieve a legitimate objective. The purpose of the amendment is to ensure that information
necessary to support the Agency's research, data and reporting functions can be collected.
Silica issues are complex and require coordination and information sharing across portfolios as
well as jurisdictions. This amendment is intended to facilitate information sharing between
government agencies and bodies. New section 14A is framed broadly to provide flexibility for
the future. For example, ASEA has a very cooperative approach and in the future the Agency
may form partnerships with non-Governmental organisations and request information from
such bodies as well.
Tracking progress against the national strategic plans and developing evidence-based research
relies on input from a range of sources including all State and Territory governments. This
amendment would ensure that persons with relevant information are able to provide that
information to the Agency. The amendment is reasonable and proportionate, as information
must be necessary for the performance of the Agency's research, data and reporting functions.
This would involve for example, data on number of diagnosed cases of silicosis or other silica
related diseases in each State and Territory. It would not include for example, a person's
medical record as that would not be necessary for the performance of the Agency's functions.
Failing to fulfil a request would not be an offence and broad discretion will be retained by the
person holding information. There could be a range of legitimate reasons why a request may
not be fulfilled, including if, for example, providing the information requested would cause
unnecessary duplication of work and create an administrative burden on the person.
The Agency would be subject to a range of obligations to ensure that the information it obtains
is handled appropriately:
• Personal information collected by the Agency is subject to the requirements of the
Privacy Act 1988 which governs its collection, use, disclosure, storage and disposal.
• As Australian Public Service (APS) employees, the Agency's employees would be
bound by the APS Code of Conduct, including regulation 2.1 (duty not to disclose
information) which applies to information obtained by the Agency related to the
performance of its statutory functions. A breach of the Code of Conduct by an APS
employee may lead to the imposition of sanctions up to and including termination of
employment.
• The Criminal Code includes offences relating to the unauthorised disclosure of
information by current (and former) Commonwealth officers, including APS employees,
punishable by terms of imprisonment (of between two and seven years depending on the
circumstances of the offence).
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) protects the
right to freedom of association, including the right to form and join trade unions. Article
8(1)(c) and (d) of the ICESCR also support the right to freedom of association by providing
that States Parties undertake to ensure the right to form and join trade unions and the right to
strike, including picketing activities. There are also specific obligations relating to freedom
of association in the ILO's Freedom of Association and Protection of the Right to Organise
Convention 1948 (No. 87) and Right to Organise and Collective Bargaining Convention 1949
(No. 98).
The prevention of occupational diseases is a fundamental aspect of the right to just and
favourable conditions of work. Its realisation requires the adoption of a national policy for the
prevention of diseases, minimising hazards in the working environment and ensuring broad
participation in its formulation, implementation and review, in particular of workers and
employers and their representative organisations.
Human rights implications
This Bill positively engages the following rights and freedoms:
• the right to freedom of association, including the right to form and join trade unions
under Article 22 of the ICCPR and Article 8 of the ICESCR;
• the right to the enjoyment of just and favourable conditions of work under Articles 6
and 7 of the ICESCR;
• the right to the highest attainable standard of physical and mental health under Article
12 of the ICESCR;
• the right to privacy and reputation under Article 17 of the ICCPR.
Conclusion
This Bill is compatible with human rights as it promotes human rights.
Senator Jacqui Lambie and Senator David Pocock