NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION (REPEAL, CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005

2004-2005

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

National Occupational Health and Safety

Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005

No. , 2005

(Employment and Workplace Relations)

A Bill for an Act to repeal the National

Occupational Health and Safety Commission Act

1985, to deal with consequential and transitional

matters related to that repeal and to the enactment

of the Australian Workplace Safety Standards Act

2005, and for related purposes

i National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................2

Schedule(s)....................................................................................2

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

Part 2--Transitional and saving arrangements

Schedule 2--Amendment of other Acts and related saving

provisions

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

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 1

A Bill for an Act to repeal the National

Occupational Health and Safety Commission Act

1985, to deal with consequential and transitional

matters related to that repeal and to the enactment

of the Australian Workplace Safety Standards Act

2005, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the National Occupational Health and

Safety Commission (Repeal, Consequential and Transitional

Provisions) Act 2005.

2 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1

and 2

At the same time as section 3 of the

Australian Workplace Safety Standards Act

2005 commences.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Abolition of the National Occupational Health and Safety Commission Schedule 1

Repeal of the National Occupational Health and Safety Commission Act 1985 Part 1

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 3

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

1 The whole of the Act

Repeal the Act.

Schedule 1 Abolition of the National Occupational Health and Safety Commission

Part 2 Transitional and saving arrangements

4 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

Part 2--Transitional and saving arrangements

2 Definitions

In this Part:

abolition day means the day on which section 3 of the Standards Act

commences.

assets means property of every kind and, without limiting the generality

of the foregoing, includes:

(a) choses in action; and

(b) rights, interests and claims of every kind in or to property,

whether arising under an instrument or otherwise, and

whether legal or equitable, liquidated or unliquidated, certain

or contingent, accrued or accruing.

Australian Safety and Compensation Council has the same meaning as

in the Standards Act.

authorised officer means the Minister, the Secretary of the Department

or any other person authorised by the Minister for the purposes of this

Part.

Commission means the National Occupational Health and Safety

Commission that was established under section 6 of the NOHSC Act.

Commission instrument means an instrument subsisting immediately

before abolition day:

(a) to which the Commission was a party; or

(b) that was given to, or in favour of, the Commission; or

(d) under which money is or was, or may become or may have

become, payable to the Commission; or

(e) under which any other property is or was to be, or may

become liable to be or to have been, transferred to or by the

Commission.

liabilities means liabilities of every kind and, without limiting the

generality of the foregoing, includes obligations of every kind, whether

arising at law or in equity, whether arising under or by virtue of an

instrument or otherwise, and whether liquidated or unliquidated, certain

or contingent, accrued or accruing.

Abolition of the National Occupational Health and Safety Commission Schedule 1

Transitional and saving arrangements Part 2

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 5

NOHSC Act means the National Occupational Health and Safety

Commission Act 1985.

Secretary means the Secretary of the Department.

Standards Act means the Australian Workplace Safety Standards Act

2005.

3 Transfer of assets and liabilities

On abolition day:

(a) any assets that, immediately before that day, were vested in

the Commission are, by force of this item, vested in the

Commonwealth; and

(b) the Commonwealth becomes, by force of this item, liable to

pay and discharge liabilities of the Commission that existed

immediately before that day.

4 Custody of Commission records or documents

(1)

Any record or document, including a Commission instrument other than

a Commission instrument declaring a national standard or code of

practice under section 38 of the NOHSC Act, that was in the custody of

the Commission immediately before abolition day is to be transferred

into the custody of the Commonwealth on or after that day.

(2)

Any Commission instrument declaring a national standard or code of

practice under section 38 of the NOHSC Act that was in the custody of

the Commission immediately before abolition day is to be transferred

into the custody of the Australian Safety and Compensation Council on

or after that day.

5 Pending proceedings

If, immediately before abolition day, proceedings to which the

Commission was a party were pending in any court or tribunal, the

Commonwealth is, on and after that day and despite the provisions of

any other law or instrument, substituted for the Commission as a party

to the proceedings and has the same rights in the proceedings as the

Commission had.

6 Exemption from taxation

(1)

Any transfer of assets or liabilities, or any other dealing, under this Part,

and any instrument facilitating or evidencing such a transfer or other

Schedule 1 Abolition of the National Occupational Health and Safety Commission

Part 2 Transitional and saving arrangements

6 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

dealing, is not subject to stamp duty or other tax under a law of the

Commonwealth or of a State or Territory if an authorised officer

certifies, in writing:

(a) that the transfer or dealing is a transfer or dealing for a

purpose connected with, or arising out of, the operation of

this Part; or

(b) that the instrument facilitating or evidencing a transfer or

dealing is an instrument made or given because of, or for a

purpose connected with, or arising out of, the operation of

this Part.

(2)

A certificate given by an authorised officer under subitem (1) is not a

legislative instrument for the purposes of the Legislative Instruments

Act 2003.

7 Commission instruments

(1)

A Commission instrument, other than a national standard or code of

practice declared by the Commission under section 38 of the NOHSC

Act, that was in force immediately before abolition day has effect on

and after that day, in relation to everything occurring on or after that

day, as if a reference in the instrument to the Commission were a

reference to the Commonwealth.

(2)

A national standard or code of practice relating to an occupational

health and safety matter:

(a) that was declared by the Commission under section 38 of the

NOHSC Act; and

(b) that was in force immediately before abolition day;

has effect on and after that day as if it were a national standard or code

of practice made by the Australian Safety and Compensation Council

under the Standards Act.

8 Certificates relating to assets, liabilities and instruments

(1)

An authorised officer may certify, in writing, that:

(a) an asset or liability specified in the certificate becomes or

became, because of item 3 of this Schedule, an asset or

liability of the Commonwealth; or

(b) an instrument specified in the certificate is a Commission

instrument.

Abolition of the National Occupational Health and Safety Commission Schedule 1

Transitional and saving arrangements Part 2

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 7

(2)

The certificate is, in all courts and for all purposes, prima facie evidence

of the matter stated in the certificate.

(3)

If:

(a) under item 3 of this Schedule, an estate or interest in land

becomes an asset of the Commonwealth; and

(b) a certificate under subitem (1) to that effect is lodged with the

Registrar-General, Registrar of Titles or other proper officer

of the State or Territory in which the land is situated;

the officer with whom the certificate is lodged may deal with and give

effect to the certificate as if it were a grant, conveyance, memorandum

or instrument of transfer of the estate or interest to the Commonwealth,

duly executed under the laws in force in that State or Territory.

(4)

If a document purports to be a certificate under subitem (1) or (3)

signed by a person purporting to be an authorised officer, judicial notice

must be taken of the signature of the person and of the fact that the

person is or was an authorised officer.

9 Final report and financial statements for Commission

(1)

The Secretary must, as soon as practicable after, but not later than 90

days after, abolition day, prepare and give to the Minister:

(a) a report on the operations of the Commission during the

period (the closure period) commencing on 1 July 2005 and

ending immediately before abolition day; and

(b) financial statements that relate to the Commission during that

period in such form as the Minister administering the

Commonwealth Authorities and Companies Act 1997

approves.

(2)

The Secretary must give a copy of the financial statements to the

Auditor-General before giving them to the Minister under subitem (1).

(3)

As soon as practicable after, but not later than 90 days after, receipt of

the financial statements, the Auditor-General must report to the

Minister:

(a) whether, in the Auditor-General's opinion, the statements are

based on proper accounts and records; and

(b) whether the statements are in agreement with the accounts

and records and, in the Auditor-General's opinion, show

Schedule 1 Abolition of the National Occupational Health and Safety Commission

Part 2 Transitional and saving arrangements

8 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

fairly the financial transactions and state of affairs of the

Commission; and

expenditure and investment of money, and the acquisition

and disposal of assets by the Commission during the closure

period were in accordance with the NOHSC Act; and

(d) such other matters arising out of the statements as the

Auditor-General considers should be reported to the Minister.

(4)

The Secretary and the Auditor-General may, in discharging their

obligations under this item, rely on accounts and records of the

Commission that are in the possession of the Commonwealth or to

which the Secretary is allowed access, and on any other information

provided to a person who was a member of the Commission or who was

a member of the staff of the Commission.

(5)

The Minister must cause copies of the reports and financial reports,

together with a copy of the report by the Auditor-General, to be laid

before each House of the Parliament within 15 sitting days of that

House after the receipt by the Minister.

10 Saving provision--rights of review of certain decisions

made before abolition day

(1)

For the purpose of this item, and without limiting the effect of item 5 of

this Schedule, each decision of a kind referred to in subsection 63(4) of

the NOHSC Act that was made by the Commission before abolition day

has effect, on and after that day, as a decision of the Commonwealth.

(2)

Despite the repeal of section 63 of the NOHSC Act, that section

continues in force, on and after abolition day, for the purpose of

enabling persons to seek review of decisions referred to in subsection

63(4) of that Act that were made before that day as if:

(a) that section had not been repealed; and

(b) each reference in that section, as so continued in force, to a

decision of the Commission were a reference to a like

decision made by the Commonwealth.

11 Saving provision--continuation of public consultations

underway on abolition day

If:

Abolition of the National Occupational Health and Safety Commission Schedule 1

Transitional and saving arrangements Part 2

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 9

(a) before abolition day, the Commission published a notice

under subsection 38(4) of the NOHSC Act in relation to a

proposed national standard or code of practice; and

(b) by abolition day, the Commission has not declared the

proposed standard or code of practice;

then:

code of practice by the Australian Safety and Compensation

Council--the publication of the notice by the Commission is

taken to have satisfied the Australian Safety and

Compensation Council's obligations under subsection 7(1) of

the Standards Act; and

(d) subsection 7(2) of the Standards Act applies in relation to any

representation made in accordance with the notice published

by the Commission as if the representation had been made in

accordance with steps taken under subsection 7(1) of that

Act.

12 Delegation of powers and functions conferred under this

Part

(1)

The Minister may, by written instrument, delegate to:

(a) the Secretary or any other Agency Head within the meaning

of the Public Service Act 1999; or

(b) an SES employee or acting SES employee;

all or any of the powers and functions conferred on or acquired by the

Minister under this Part.

(2)

The Secretary may, by written instrument, delegate to an SES employee

or acting SES employee the powers and functions of the Secretary

under this Part.

Note 1: The expressions SES employee, and acting SES employee are defined in section 17AA

of the Acts Interpretation Act 1901.

Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

13 Committees and working parties

Schedule 1 Abolition of the National Occupational Health and Safety Commission

Part 2 Transitional and saving arrangements

10 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

For the avoidance of doubt, all persons, whether members of the

Commission or not, who, immediately before the abolition day, are

members of a committee of the Commission or members of a working

party of such a committee, cease to hold office with effect from that

day.

14 Making of transitional etc. regulations

The Governor-General may make regulations prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to:

(a) the enactment of the Standards Act or of this Act; or

(b) the repeal of the NOHSC Act by this Act; or

Amendment of other Acts and related saving provisions Schedule 2

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 11

Schedule 2--Amendment of other Acts and

related saving provisions

Industrial Chemicals (Notification and Assessment) Act 1989

1 Paragraph 100B(1)(j)

Omit "the Account;", substitute "the Account.".

2 Paragraphs 100B(1)(k) and (l)

Repeal the paragraphs.

3 Subsection 100B(2)

Repeal the subsection.

4 Paragraph 100C(1)(d)

Omit "regulations; and", substitute "regulations.".

5 Paragraph 100C(1)(e)

Repeal the paragraph.

Occupational Health and Safety (Commonwealth

Employment) Act 1991

6 Subsections 70(2) and (3)

Repeal the subsections, substitute:

(2) Without limiting the generality of the matters that may be included

in codes of practice prepared by the Commission, the Commission

must, in respect of each advisory standard or code declared after

this subsection commences, as soon as practicable after that

advisory standard or code is declared, incorporate in a code of

practice prepared by the Commission for Ministerial approval

under this section so much of that advisory standard or code:

(a) as is capable of relating to Commonwealth employment; and

(b) as has not been applied, adopted or incorporated, with or

without modification, in regulations made for the purposes of

section 23.

Schedule 2 Amendment of other Acts and related saving provisions

12 National Occupational Health and Safety Commission (Repeal, Consequential and

Transitional Provisions) Bill 2005 No. , 2005

(3) A code of practice incorporating a document (other than an

advisory standard or code) that is prepared by a body may

incorporate that document as in force at the time the code of

practice is approved or as amended by the body from time to time.

7 Saving provision

Subsection 70(2) of the Occupational Health and Safety

(Commonwealth Employment) Act 1991, as in force immediately before

the commencement of item 6 of this Schedule, is to be taken to continue

in force for the purpose of incorporating, in a code of practice prepared

by the Commission for Ministerial approval under section 70 of that Act

as so in force, any national standard or a code of practice:

(a) that was declared under subsection 38(1) of the National

Occupational Health and Safety Commission Act 1985; and

(b) that it was not practicable to so incorporate before the repeal

of subsection 70(2).

8 Subsection 70(9)

Repeal the subsection, substitute:

(9) In this section:

advisory standard or code means a national standard, or a code of

practice, in relation to an occupational health and safety matter that

is declared by the Australian Safety and Compensation Council

under subsection 6(1) of the Australian Workplace Safety

Standards Act 2005, other than a standard or code:

(a) that is to be treated, by operation of subitem 7(2) of

Schedule 1 to this Act, as if it had been so declared; and

(b) that has not been amended or varied since it was first

required to be so treated.

Occupational Health and Safety (Maritime Industry) Act

1993

9 Subsections 109(2) and (3)

Repeal the subsections, substitute:

(2) Without limiting the generality of the matters that may be included

in codes of practice prepared by the Authority, the Authority must,

in respect of each advisory standard or code declared after this

Amendment of other Acts and related saving provisions Schedule 2

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional

Provisions) Bill 2005 No. , 2005 13

subsection commences, as soon as practicable after that advisory

standard or code is declared, incorporate in a code of practice

prepared by the Authority for Ministerial approval under this

section that advisory standard or code to the extent that:

(a) it has not been incorporated in regulations; and

(b) it is capable of relating to employment in the maritime

industry.

(3) A code of practice incorporating a document (other than an

advisory standard or code) that is prepared by a body may

incorporate that document as in force at the time the code of

practice is approved or as amended by the body from time to time.

10 Saving provision

Subsection 109(2) of the Occupational Health and Safety (Maritime

Industry) Act 1993, as in force immediately before the commencement

of item 9 of this Schedule, is to be taken to continue in force for the

purpose of incorporating, in a code of practice prepared by the

Authority for Ministerial approval under section 109 of that Act as so in

force, any national standard or a code of practice:

(a) that was declared under subsection 38(1) of the National

Occupational Health and Safety Commission Act 1985; and

(b) that it was not practicable to so incorporate before the repeal

of subsection 109(2).

11 Subsection 109(9)

Repeal the subsection, substitute:

(9) In this section:

advisory standard or code means a national standard, or a code of

practice, in relation to an occupational health and safety matter that

is declared by the Australian Safety and Compensation Council

under subsection 6(1) of the Australian Workplace Safety

Standards Act 2005, other than a standard or code:

(a) that is to be treated, by operation of subitem 7(2) of

Schedule 1 to this Act, as if it had been so declared; and

(b) that has not been amended or varied since it was first

required to be so treated.

Safety, Rehabilitation and Compensation Act 1988

Commonwealth of Australia Bills

NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION (REPEAL, CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005