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Legislative Assembly for the ACT: 2007 Week 8 Hansard (30 August) . . Page.. 2391..


MR BARR (continuing):

strategies to focus on areas posing the greatest risk to health and safety and target activities to circumstances where it is most likely to be effective.

To ensure an appropriate level of independence in this work the commissioner will continue to report and be accountable to the Legislative Assembly.

The government is currently developing legislation to ensure retention of the independence of the commissioner's office as part of future amendments required for enforcement of OHS laws by the Office of Regulatory Services. The commissioner position will be advertised for permanent filling shortly.

Today's bill amends part 2 of the OHS Act to focus and better reflect the current role of the OHS Council. Specifically, the bill amends the OHS council provisions to provide one extra ministerial appointment. This will bring the number of ministerial appointments in line with the employer and employee representatives on the council.

The bill creates a statutory requirement that the chair be independent of employer and employee members. This has been the case for recent councils; however it is not a legislative requirement. The amendment will ensure the independent status of the chair is maintained.

The bill transfers the council's powers under part 5A of the OHS Act concerning inquiries and reports in relation to matters affecting public employees to the chief executive of the Department of Justice and Community Safety. These powers have never been exercised by the council and have been delegated to the head of ACT WorkCover or the OHS commissioner since commencement of the provisions in 1994.

The bill also clarifies member representation and requirements and removes provisions from the OHS Act that are covered in the Legislation Act 2001. Finally, in relation to part 2, the bill modernises existing provisions and brings them into line with current drafting practice and human rights standards.

The bill also makes some changes to the construction of the safety duty offences in the OHS Act and the Dangerous Substances Act. The Dangerous Substances Act is being amended to maintain consistency between the regimes.

The government has received various advices on the construction of the offences since their commencement in 2004. All of these advices agree that the provisions, as they are currently drafted, require improvement.

Specifically, the bill attaches strict liability to an existing element of the safety duty offences. The government considers that the revised construction is consistent with the initial intention for the offences.

Currently, under the provisions a person is required to comply with a safety duty. This is the first element of the offence and attracts absolute liability. The second element is that the person commits an offence if the person fails to comply with the safety duty. This element imports a fault element of intention or recklessness in accordance with the Criminal Code 2002. The imposition of a fault element for this element of the offence is inconsistent with the regulatory context and poses unjustified limitations on


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