The story of the harmonisation process in South
Australia has illustrated how vulnerable the uniformity of
the legislation is to state-based interests and political
pressures. The Work Health and Safety Act 2012 (SA)
(SA WHS Act) is now operating in SA, but with some
important differences from the model legislation.
On 1 January 2013, South Australia joined the Commonwealth,
Queensland, New South Wales, Tasmania, the Australian Capital
Territory and Northern Territory in enacting the model legislation,
via the SA WHS Act. The SA WHS Act replaces the Occupational
Health Safety and Welfare Act 1986 (SA) (OHSW
The SA WHS Act contains a number of departures from the model
legislation, which broadly reflect the political issues that held
up the passage of the legislation for twelve months from its
intended commencement date of 1 January 2012:
The duty to first eliminate and then minimise risks has been
limited to the extent to which the duty holder has the
'capacity to influence and control the matter or would have
that capacity but for an agreement or arrangement purporting to
remove that capacity', a change which is intended to replace
the old 'control test' in the OHSW Act.
Preserving the right of a person to refuse to answer questions
or provide information or a document on the ground that it may
incriminate the person or expose the person to a liability.
Restrictions on provisions enabling an HSR to request
assistance from any person when exercising their health and safety
function. These restrictions would, amongst other things, limit the
ability of an HSR to obtain the assistance of a union
Right of entry provisions for WHS entry permit holders are
tighter under the SA WHS Act than under the model legislation,
mainly via mechanisms to involve inspectors being made aware of
union right of entry.
In order to protect the interests of small business the SA WHS
Act requires that any implementation, variation, or revocation of a
code of practice must be made available to the Small Business
Commissioner for assessment, and the provision of comment or advice
to the Minister.
Provision for statutory reviews of the operation of the
legislation to be undertaken by the Minister after one year and
three years, with the results to be tabled in Parliament.
The changes sought to protect business, particularly small
business, from a perceived increase in the scope of obligations
under the model legislation.
In the next issue of Safety and Environment we will
discuss analogous developments in Western Australia.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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