How the Model WHS laws came to be
Safe Work Australia is an advisory body of the Australian government that advises and develops laws concerning workplace health and safety. It was created in 2009 in response to efforts by the Commonwealth, State and Territory governments to harmonise workplace health and safety legislation for all jurisdictions of Australia. Prior to then, each state and territory had individual health and safety laws. Sometimes these laws, and their regulations and codes conflicted with those of other jurisdictions.
During the 1970s and 1980s each of the Australian jurisdictions enacted new statutes for occupational health and safety based on the "Robens model" which was derived from a UK report by Lord Alfred Robens in 1972 [Note 1]. NSW adopted the Robens model in 1983.
However, by the mid-1980s law cases, and industry changes brought about changes to the laws of each jurisdiction, some of which were politically motivated.[Note 2] By the 2000s the New South Wales OHS Act was only vaguely reminiscent of the original Robens model, especially in the areas of accountability (lack of clarification of duty holders) and workplace consultation.
After much development, Safe Work Australia creating a unified set of work health and safety (WHS) laws meant for all jurisdictions which were published in November 2011 and enacted January 1, 2012.
Early attempts to achieve harmonisation of health and safety laws
The National Occupational Health and Safety Commission (NOHSC), comprising representatives from Commonwealth, state, and territory Occupational Health and Safety (OHS) regulators were the first to attempt plans for legislative harmonisation.
In the 1980s, the NOHSC developed:
National Standards
National Codes of Practice
The National Standards lacked legal authority and were unenforceable unless officially incorporated into a jurisdiction's Occupational Health and Safety regulations. This lack of enforceability resulted in considerable variations across the country concerning the adoption of protocols, the drafting and application by jurisdictions, and whether they were implemented as a code of practice or regulation.
Despite these challenges, notable advancements in consistency were made in the areas of hazardous chemicals, occupational licensing, and noise.
Agreement to make model health and safety laws
On 1 February 2008, Ministers of the Workplace Relations Ministers’ Council (WRMC) agreed that model legislation would be the most effective way to harmonise health and safety laws for all of Australia.
In July 2008, the Council of Australian Governments (COAG) signed an inter-governmental agreement (IGA) on how the Commonwealth, states and territories would achieve this goal.
The IGA can be viewed here: https://www.coag.gov.au/about-coag/agreements/intergovernmental-agreement-regulatory-and-operational-reform-occupational
The agreement was to create and implement:
a model Act and model Regulations
model Codes of Practice
a National Compliance and Enforcement Policy
an independent body to drive the model laws’ development and implementation.
Developing the model WHS laws involved a consultation process, including:
an exposure draft bill
a regulation impact statement (RIS) – in line with COAG guidelines.
How the model WHS laws began
A National Review of Model Occupational Health and Safety Laws was conducted to suggest recommendations for the optimal structure and content of a model OHS Act that could be adopted by each state and territory. The review was carried out by a panel of three independent experts who engaged in thorough public consultations with regulators, unions, employer organizations, industry representatives, legal professionals, academics, and health and safety specialists.
The panel presented 232 recommendations in two reports, and in May 2009, the Workplace Relations Ministers' Council established policy parameters for creating a model Act based on these recommendations.
The WRMC established a policy framework to create a model Act based on recommendations from:
To drive the development and implementation of model WHS laws, the IGA also required the formation of an independent body which became Safe Work Australia.
Forming the model WHS Act
In September 2009, Safe Work Australia released a draft model WHS Act for public comment.
A total of 480 submissions were received, which resulted in several amendments to the draft.
WRMC Ministers endorsed the revised model WHS Act on 11 December 2009. They authorised Safe Work Australia to make any further technical or drafting changes.
On 29 April 2010, Safe Work Australia members endorsed the amendments to the proposed model WHS Act and a final version was published. This was accompanied by a Regulation Impact Statement on the draft model WHS Act.
Model WHS Regulations and Codes of Practice
Under the IGA, the process for developing the model WHS Regulations required Safe Work Australia to consider areas that were the subject of existing regulations. Unless matters were already regulated in a majority of the jurisdictions, they were not included in the model WHS Regulations.
The draft model WHS Regulations and an initial group of draft model Codes of Practice were released for public comment in December 2010, with a total of 1,343 submissions received.
A second group of draft model Codes of Practice were released for comment in September 2011.
On 4 November 2011, Safe Work Australia published the agreed model WHS Regulations.
On 7 November 2011 Safe Work Australia released the Decision regulation impact statement for National harmonisation of Work Health and Safety Regulations and Codes of Practice and published it on its website.
Between December 2011 and July 2012, Safe Work Australia published 23 model codes of practice.
Implementing WHS laws
The Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, and Queensland adopted the model WHS laws in their regions on 1 January 2012. South Australia and Tasmania followed by implementing the model WHS laws on 1 January 2013. Western Australia passed a version of the model laws on 10 November 2020, which came into effect on 31 March 2022. Victoria remains the only jurisdiction that has not adopted the model WHS laws, their reasoning being that their existing OHS Laws were already near-identical to the resultant Model laws published for the rest of the country.
Note
The Robens Model was derived from a report published in the UK in 1972 by Lord Alfred Robens proposing changes to the UK Occupational Safety and Health system which was perceived to be overly regulatory. Up until the 1970s Australian health and safety law was mostly derived from the 19th century British health and safety legislation (particularly the 1878 Factories Act, and later the 1901 Act.)
Socio-Political Context: OHS Law and Regulation in Australia, by Elizabeth Bluff. First published in 2012 by the Safety Institute of Australia Ltd, Tullamarine, Victoria, Australia. https://www.ohsbok.org.au/wp-content/uploads/2013/12/8-Sociopolitical-OHS-law-in-Australia.pdf
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