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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SAFETY, REHABILITATION AND COMPENSATION AND OTHER
LEGISLATION AMENDMENT BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Joe Hockey MP)
SAFETY, REHABILITATION AND COMPENSATION AND
OTHER LEGISLATION AMENDMENT BILL 2006
(Amendments to be moved on behalf of the Government)
OUTLINE
The Government's amendments to this Bill would:
· Ensure the continuation of workers' compensation coverage under the Safety,
Rehabilitation and Compensation Act 1988 (the SRC Act) for certain work-
related journeys;
· enable additional functions be conferred on Comcare by regulations;
· make a minor technical amendment to the Bill as introduced;
· amend the Occupational Health and Safety Act 1991 (the OHS Act) to
prohibit the operation of major hazard facilities without a licence; and
· amend the OHS Act to extend its civil penalty regime to breaches of
regulations made under the Act.
FINANCIAL IMPACT STATEMENT
The proposals in these amendments are budget neutral.
Senate page 1 Safety, Rehabilitation and Compensation and
Other Legislation Amendment Bill 2006
Notes on Amendments
NOTES ON AMENDMENTS
Amendment (1) - commencement of new Schedule 3
Amendment (1) provides that new Schedule 3 - inserted by Amendment (7) and
containing amendments to the OHS Act - will commence the day after the Act
receives the Royal Assent.
Amendment (2) - expanding coverage of injuries
Amendment (2) inserts a new paragraph 6(1)(ea) into the SRC Act which would have
the effect of extending workers' compensation coverage under the SRC Act to any
injury sustained in the course of travelling between the employee's place of work and
a place of education in accordance with a condition of the employee's employment or
at the request or direction or with the approval of the employer.
Amendment (3) - expanding coverage of injuries
Amendment (3) is a technical amendment consequential upon Amendment (4).
Amendment (4) - expanding coverage of injuries
Amendment (4) inserts a new paragraph 6(1)(g) into the SRC Act which would have
the effect of extending workers' compensation coverage under the SRC Act to any
injury sustained in the course of travelling between the employee's place of work and
a place for the purposes of:
· obtaining a medical certificate for the purposes of the SRC Act;
· receiving medical treatment for an injury;
· undergoing a rehabilitation program provided under the SRC Act;
· undergoing a medical examination or rehabilitation assessment in
accordance with a requirement made under the SRC Act.
Amendment (5) - Comcare's functions
Amendment (5) inserts a new item 31A. New item 31A amends existing section 69
of the SRC Act by inserting new paragraph 69(fb) to enable additional functions be
conferred on Comcare by regulations.
Section 69 of the SRC Act currently specifies Comcare's functions. These functions
are tightly drawn and lack flexibility. The amendment would enable additional
functions be conferred on Comcare by regulation. This will allow for greater
flexibility, yet at the same time ensuring such conferral is still subject to
parliamentary scrutiny.
Amendment (6) - technical correction
Senate page 1 Safety, Rehabilitation and Compensation and
Other Legislation Amendment Bill 2006
Notes on Amendments
Amendment (6) makes a minor technical correction to item 47 of the Bill as
introduced. Item 47 is a transitional provision which would enable the Minister to
specify a transitional interest rate for the purposes of new subsection 21(5) -
contained in item 24 of the Bill. As presently drafted, the specified transitional
interest rate would have to take effect from the day after the amendments receive the
Royal Assent, and before commencement of the substantive provision on
Proclamation. The amendment would enable the Minister to specify a transitional
interest rate before the commencement of the substantive provision but that would
take effect from the date the substantive provision takes effect.
Amendment (7) - amendments relating to occupational health and safety
Amendment (7) inserts a new Schedule 3 which contains amendments to the OHS
Act.
Item 1 - new section 23A
Item 1 inserts a new section 23A that specifies a person must not operate a major
hazard facility if the person is required by regulations to have a licence to operate the
facility and the person does not have such a licence.
Regulations made under the Act impose licensing requirements on major hazard
facility operators. The ultimate sanction for a failure to comply with these licensing
requirements is suspension or revocation of the licence. However, the maximum
level of penalties that could be imposed under the regulations for operating a major
hazard facility without a licence are substantially less than the costs of complying
with the licensing requirements. The amendments address this problem by including
provisions in the OHS Act which prohibit the operation of a major hazard facility
without a licence and by providing for a more appropriate level of penalty for failure
to comply with these provisions.
The note following subsection (1) alerts the reader that a person who contravenes this
provision may be subject to civil action.
Item 2 - Schedule 2 (heading)
Item 2 repeals the former heading of Schedule 2 and replaces it with the heading
`Civil and criminal proceedings'. This change reflects that the proceedings are no
longer only in respect of breaches of the Act.
The OHS Act contains a dual civil and criminal penalty regime. However, the civil
penalty regime applies only to breaches of the Act itself and not to breaches of the
regulations. Currently, the only available sanction for a breach of the regulations is a
criminal penalty. This is inconsistent with the scheme of the Act which gives
primacy to the civil penalty regime and retains criminal penalties for serious breaches
of the Act, such as negligent or reckless conduct that may cause or expose an
employee to death or serious injury. The proposed amendments in items 2-8 correct
this anomaly and will enable breaches of the regulations to attract civil penalties.
Item 3 - new paragraph 2(1)(fa) of Schedule 2
Senate page 2 Safety, Rehabilitation and Compensation and
Other Legislation Amendment Bill 2006
Notes on Amendments
Item 3 inserts new paragraph 2(1)(fa) to require a court to make a declaration of
contravention if a person breaches the requirement to hold a licence under new
section 23A to operate a major hazard facility. A declaration of contravention is
required before a civil pecuniary penalty can be imposed.
Item 4 - new paragraph 2(1)(o) of Schedule 2
Item 4 inserts new paragraph 2(1)(o) to require a court to make a declaration of
contravention if a person breaches a provision of the regulations specified in the
regulations to be a civil penalty provision. A declaration of contravention is required
before a civil pecuniary penalty can be imposed.
Item 5 - Paragraph 2(3)(c) of Schedule 2
Item 5 substitutes a new paragraph 2(3)(c) in Schedule 2. This amendment is
consequential upon the amendment made by item 4 which extends the declaration of
contravention provisions to breaches of the regulations.
Items 6 and 7 - Penalties
Items 6 and 7 amend the table of maximum penalties contained in subclause 4(2) of
Schedule 2. Items 6 and 7 insert the respective penalties applicable for being an
unlicensed operator of a major hazard facility and breaching a provision of the
regulations.
Item 8 - Subclause 13(1) of Schedule 2 - paragraph (a) of the definition of civil
penalty proceedings
Item 8 amends the definition of `civil penalty proceedings' in subclause 13(1) to
make it clear that clause 13, which allows for relief to be granted from liability for
breaching civil penalty provisions, does not apply if the contravention arises from
breaching a provision of the regulations to which strict liability applies.
Senate page 3 Safety, Rehabilitation and Compensation and
Other Legislation Amendment Bill 2006
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