29 May 2011
- Fails to include the term ‘control’ in the identification of Duties of Care.
- Removes the right to silence and protection from self-incrimination.
The flaws damage the integrity and structure of OHS laws, thereby damaging the capacity for improvements in work safety. We need the best laws to ensure the safest workplaces. The model Act can be readily amended to fix these flaws.
1. Failure to include the term ‘control’ in identification of Duties of Care
- The modern principles of OHS safety were first created in the UK in 1972 under the Robens Review. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control.
- These are the internationally accepted benchmarks embedded in International Labour Organisation Conventions to which Australia become a signatory in 2004. ILO Convention 155 (article 16) states:
- Employers shall be required to ensure that, so far as is reasonably practicable the workplaces, machinery, equipment and process under their control are safe and without risk to health.
- WA, SA, NT, Vic, Tas, Qld, ACT and Commonwealth apply reasonable and practicable control in one form or another.
- Victoria is the most recent state that comprehensively reviewed and updated its OHS laws. The review (The Maxwell Review, 2004) placed reasonable and practicable control as the central principle.
- “The OHS legislation … must impose appropriate duties on those who are in a position to eliminate or control those risks.” (pp. 6-7)
The Victorian legislation implemented this high-order principle.
- Since the 1980s a considerable body of legal precedent has been established in the courts around the meaning, application and interpretation of reasonable and practicable control. These are known concepts under OHS law.
- The National Review into OHS laws (Report 1 October 2008) stated that there was much dissent in submissions over the inclusion of the word ‘control’ in Duties of Care. Recommendation 8 called for the removal of the word ‘control’ from the definition of reasonable and practicable. This is implemented in the national model OHS laws.
- The model laws also introduce a new and untested legal concept of connecting Duties of Care to a “person conducting a business or undertaking” (PCBU).
The removal of the word ‘control’:
- creates confusion over who is responsible for what in work safety;
- is a major shift away from known OHS principles in all Australian jurisdictions except NSW;
- removes a key element of the ILO OHS Conventions to which Australia is a signatory; and
- creates a legal ‘vacuum’ due to unknown application and interpretation of Duties of Care under a new concept (PCBU).
It is reasonable to expect that, with the removal of the word ‘control’, legal uncertainty will occur and will require many, many years of judicial testing before clarity is achieved.
OHS legislation must not just operate with legal clarity. The wording of the Act must give unambiguous signals in clear, lay language to every person involved in workplaces. People understand, in a practical sense, that if they ‘control’ something (or even share control), that they are responsible. With the word ‘control’ removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces.
Insert the word ‘control’ into the legislation as shown here (Primary Duty of Care) and similar insertions into each section of the legislation and regulations as needed to ensure that responsibilities are tied to ‘control’.
2. Removal of the right to silence and protection from self-incrimination
Prosecution under OHS laws are criminal matters.
Under normal criminal law everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to an investigator (the police) unless the investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and the rule of law. It stops abuse of power.
Protection against self-incrimination is currently available under OHS laws in New South Wales, Queensland, South Australia and Victoria.
The model OHS laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but to all managers and workers in workplaces. It will give powers to OHS inspectors not available to the police.
The clause in the model laws says:
Clause 172 Abrogation of privilege against self-incrimination
- A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.
Clause 172 be deleted from the model OHS laws.