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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION
(REPEAL, CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Honourable Kevin Andrews MP)
Outline
NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION
(REPEAL, CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005
OUTLINE
The National Occupational Health and Safety Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005 implements the Australian Government's decision to abolish the
National Occupational Health and Safety Commission (NOHSC).
The Bill will repeal the National Occupational Health and Safety Commission Act 1985 and will
deal with consequential and transitional matters arising from that repeal and from the enactment
of the Australian Workplace Safety Standards Act 2005.
FINANCIAL IMPACT STATEMENT
The proposed amendments are budget-neutral.
House of Representatives page 1 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Notes on clauses
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the short title of the Act.
Clause 2 - Commencement
This clause provides that sections 1-3 and anything in the Act not covered by the table in clause 2
commence on Royal Assent. Schedules 1 and 2 commence on the same day as the
commencement of section 3 of the Australian Workplace Safety Standards Act 2005 (the
Standards Act). Section 3 will commence on proclamation.
Clause 3 - Schedule(s)
This clause provides that each Act specified in a Schedule to the Act is amended or repealed as
set out in the Schedule, and any other item in a Schedule has effect according to its terms.
House of Representatives page 2 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
Part 1 - Repeal of the National Occupational Health and Safety Commission Act 1985
National Occupational Health and Safety Commission Act 1985
Item 1 - The whole of the Act
1.1This item repeals the National Occupational Health and Safety Commission Act 1985. The
effect of this repeal is to abolish the National Occupational Health and Safety Commission
(NOHSC). NOHSC will be replaced by the Australian Safety and Compensation Council
(ASCC), a body to be established under the executive power of the Commonwealth. The
ASCC's functions will include the declaration of national standards and/or codes of practice
relating to occupational health and safety and workers' compensation matters under the proposed
Standards Act.
Part 2 - Transitional and saving arrangements
Item 2 - Definitions
1.2 This item contains definitions of a number of terms used in Part 2 of the Bill.
Item 3 - Transfer of assets and liabilities
1.3 This item provides that on abolition day - the day that NOHSC is abolished and the
Standards Act commences - all NOHSC assets and liabilities automatically transfer to the
Commonwealth. This means that, effective on abolition day, the Commonwealth will be liable to
pay and discharge all pre-existing liabilities of NOHSC.
Item 4 - Custody of Commission records or documents
1.4 Subitem 4(1) provides for the transfer, on abolition day, of NOHSC records or documents
to the Commonwealth, other than instruments declaring a national standard or code of practice
under section 38 of the NOHSC Act which will transfer to the ASCC.
1.5 Subitem 4(2) transfers NOHSC instruments declaring a national standard or code of
practice under section 38 of the NOHSC Act to the ASCC on or after abolition day.
Item 5 - Pending proceedings
1.6 This item substitutes the Commonwealth for NOHSC in relation to any outstanding court
or tribunal proceedings to which NOHSC is a party. The Commonwealth shall have the same
rights in the proceedings as the Commission had.
Item 6 - Exemption from taxation
1.7 Subitem 6(1) exempts any transfer of assets or liabilities, or any other dealing, under
Part 2 (including any instrument facilitating or evidencing such a transfer or dealing) from stamp
House of Representatives page 3 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
duty or any other Commonwealth, State or Territory tax where that transfer, dealing or
instrument is certified by an authorised officer as being for the purposes of Part 2.
1.8 Subitem 6(2) provides that any certificate given by an authorised officer under
subitem 6(1) is not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003. The certificate issued under subitem 6(1) is merely declaratory and does
not determine or alter the content of the law.
Item 7 - Commission instruments
1.9 This item provides for the continuity of NOHSC instruments on and after abolition day.
Subitem 7(1) provides that references to NOHSC in a NOHSC instrument, other than a national
standard or code of practice declared by NOHSC under section 38 of the NOHSC Act, are to be
read as references to the Commonwealth. Subitem 7(2) provides that national standards or codes
of practice relating to occupational health and safety declared by NOHSC under section 38 of the
NOHSC Act are to be treated as having been made by the ASCC under the Standards Act.
Item 8 - Certificates relating to assets, liabilities and instruments
1.10 Subitem 8(1) provides that an authorised officer may certify in writing that an asset or
liability specified in a certificate becomes or became an asset or liability of the Commonwealth
because of item 3 of this Schedule. An authorised officer may also certify in writing that an
instrument specified in the certificate is a NOHSC instrument.
1.11 Subitem 8(2) provides that the certificate given by an authorised officer is, in all courts
and for all purposes, prima facie evidence of the matter stated therein.
1.12 Subitem 8(3) authorises State or Territory land registration officials to treat any certificate
lodged with respect to a transfer of land as if it were a transfer duly executed under the applicable
State or Territory laws.
1.13 Subitem 8(4) provides for judicial notice of certificates given under subitems 8(1)
and 8(3).
Item 9 - Final report and financial statements for Commission
1.14 Subitem 9(1) requires the Secretary of the Department, as soon as practicable but not later
than 90 days after abolition day, to prepare and give to the Minister an annual report and financial
statements in respect of NOHSC's operations for the period commencing on 1 July 2005 and
ending immediately before the abolition day (the closure period).
1.15 Subitem 9(2) requires the Secretary to give to the Auditor-General a copy of the financial
statements before giving them to the Minister.
1.16 Subitem 9(3) requires the Auditor-General to report to the Minister on NOHSC's financial
statements in respect of the closure period.
1.18 Subitem 9(4) allows the Secretary and the Auditor-General, in discharging their
obligations under item 9, to rely on accounts and records of NOHSC that are in the possession of
House of Representatives page 4 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
the Commonwealth or to which the Secretary is allowed access, and any other information
provided to a person who was a member (or a member of the staff of) NOHSC.
1.19 Subitem 9(5) requires the Minister to table the annual report and financial report, together
with a copy of the Auditor-General's report, before each House of the Parliament within 15
sitting days of the receipt by the Minister of such reports.
Item 10 - Saving provision - rights of review of certain decisions made before abolition day
1.20 This item preserves the effect of decisions made under subsection 63(4) of the NOHSC
Act, in particular, rights of review in respect of those decisions.
1.21 Section 63 deals with the dissemination and publication of certain information that has
been provided to NOHSC and requires NOHSC to consult with persons who provided that
information or may be adversely affected by its disclosure. Subsection 63(4) requires NOHSC to
consider and make a decision in respect of an objection to disclosure. These decisions are
reviewable by the Administrative Appeals Tribunal.
1.22 Subitem 10(1) provides that any decision made by NOHSC under subsection 63(4) of the
NOHSC Act before abolition day has effect, on and after abolition day, as a decision of the
Commonwealth.
1.23 Subitem 10(2) preserves the operation of section 63 for the purposes of exercising any
right of review against the Commonwealth in respect of a NOHSC decision under subsection
63(4).
Item 11 - Saving provision - continuation of public consultations underway on abolition
day
1.24 This item preserves the effect of any public consultations undertaken by NOHSC prior to
abolition day that did not result in the declaration of the proposed national standard and/or code
of practice.
1.25 This item enables the ASCC to declare a national standard and/or code of practice as if the
public consultations under the NOHSC Act had occurred under the Standards Act. This item also
requires the ASCC to have regard to any representations made to NOHSC in respect of the
proposed national standard and/or code of practice as if those representations had been made in
accordance with subsection 7(2) of the Standards Act. Should the ASCC think fit, it may make
alterations to the proposed standard or code of practice in response to any such representations
made. This provision does not require further consultation when a proposed standard has been
altered in response to representations previously made.
Item 12 - Delegation of powers and functions conferred under this Part
1.26 Subitem 12(1) enables the Minister to delegate, by written instrument, all or any of the
Minister's powers and functions under this Part to:
the Secretary of the Department; or
any other Agency Head within the meaning of the Public Service Act 1999; or
any SES (or acting SES) employee.
House of Representatives page 5 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
1.27 Subitem 12(2) enables the Secretary of the Department to delegate, by written instrument,
to an SES (or acting SES) employee the Secretary's powers and functions under this Part.
House of Representatives page 6 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 1 - Abolition of the National Occupational Health and Safety Commission
Item 13 - Committees and working parties
1.28 This item clarifies that all appointments of committee members or members of working
parties are terminated on abolition day.
Item 14 - Making of transitional etc. regulations
1.29 This item enables the Governor-General to make regulations prescribing matters of a
transitional nature relating to:
the enactment of the Standards Act or of this Act; or
the repeal of the NOHSC Act by this Act; or
the amendments made by this Act.
House of Representatives page 7 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 2 - Amendment of other Acts and related saving provisions
Schedule 2 - Amendment of other Acts and related saving provisions
2.1 This schedule makes consequential amendments to the following Acts:
Industrial Chemicals (Notification and Assessment) Act 1989
Occupational Health and Safety (Commonwealth Employment) Act 1991
Occupational Health and Safety (Maritime Industry) Act 1993
Safety, Rehabilitation and Compensation Act 1988.
Industrial Chemicals (Notification and Assessment) Act 1989
2.2 Items 2-3 and 5 delete provisions in the Industrial Chemicals (Notification and
Assessment) Act 1989 (ICNA Act) relating to amounts that were payable to the Safety,
Rehabilitation and Compensation Commission (SRCC) prior to the commencement of the
Therapeutic Goods and Other Legislation Amendment Act 2002. That Act put in place new
financial arrangements under the ICNA Act to remove NOHSC's responsibility for the National
Industrial Chemicals Notification and Assessment Scheme. Following the enactment of that Act
these provision are now spent. Items 1 and 4 make minor technical amendments that are
consequential upon the deletion of these provisions.
Occupational Health and Safety (Commonwealth Employment) Act 1991
Item 6 - Subsections 70(2) and (3)
2.3 This item makes consequential amendments to the Occupational Health and Safety
(Commonwealth Employment) Act 1991 (OHS (CE) Act) to reflect that, following the abolition
of NOHSC and the enactment of the Standards Act, the ASCC will have the responsibility for
declaring national standards and codes of practice. Proposed new subsection 70(2) will require
the SRCC to incorporate in a code of practice each advisory standard or code of practice declared
by the ASCC to the extent it is capable of relating to Commonwealth employment and has not
been incorporated in regulations. Proposed new subsection 70(3) will enable a code of practice
developed by the SRCC to incorporate documents that are not advisory standards or codes
declared by the ASCC.
Item 7 - Saving provision
2.4 This item preserves the operation of subsection 70(2) of the OHS (CE) Act to enable the
SRCC to incorporate into a code of practice any national standard or code of practice declared by
NOHSC prior to the repeal of that subsection.
Item 8 - Subsection 70(9)
2.5 This item replaces the definition of `NOHSC standard or code' with a definition of
`advisory standard or code'. The term `advisory standard or code' means a national standard or
code of practice declared by the ASCC under the Standards Act, but does not include a standard
or code of practice previously declared by NOHSC that has become an ASCC national standard
or code of practice by virtue of this Act that has already been incorporated in a SRCC code of
practice.
House of Representatives page 8 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005
Schedule 2 - Amendment of other Acts and related saving provisions
Occupational Health and Safety (Maritime Industry) Act 1993
Item 9 - Subsections 109(2) and (3)
2.6 This item makes consequential amendments to the Occupational Health and Safety
(Maritime Industry) Act 1993 (OHS (MI) Act) to reflect that, following the abolition of NOHSC
and the enactment of the Standards Act, the ASCC will have the responsibility for declaring
national standards and codes of practice. Proposed new subsection 109(2) will require the
Seafarers Safety, Rehabilitation and Compensation Authority (the Authority) to incorporate in a
code of practice each advisory standard or code declared by the ASCC to the extent it is capable
of relating to maritime industry employment and has not been incorporated in regulations.
Proposed new subsection 109(3) will enable a code of practice developed by the Authority to
incorporate documents that are not advisory standards or codes declared by the ASCC.
Item 10 - Saving provision
2.7 This item preserves the operation of subsection 109(2) of the OHS(MI) Act to enable the
Authority to incorporate into a code of practice any NOHSC national standard or a code of
practice not incorporated prior to the repeal of that section.
Item 11 - Subsection 109(9)
2.8 This item replaces the definition of `NOHSC standard or code' with a definition of
`advisory standard or code'. The term `advisory standard or code' means a national standard or
code of practice declared by the ASCC under the Standards Act but does not include a national
standard or code of practice previously declared by NOHSC that has become an ASCC national
standard or code of practice by virtue of this Act that has already been incorporated in a code of
practice by the Authority.
Safety, Rehabilitation and Compensation Act 1988
Item 12 - Paragraph 89E(1)(f)
2.9 Section 89E(1) of the Safety, Rehabilitation and Compensation Act 1988 provides for the
constitution of the SRCC which currently includes the Chief Executive Officer of NOHSC. This
item replaces CEO of NOHSC with a member who, in the Minister's opinion, represents the
ASCC.
House of Representatives page 9 National Occupational Health and Safety
Commission (Repeal, Consequential and
Transitional Provisions) Bill 2005