AICD submission on the Best Practice Review of WHS Model Laws

Our submission was supportive of Safe Work Australia’s two main objectives, being firstly to ensure that the WHS laws continue to incorporate a best practice approach and secondly to encourage the harmonisation of WHS regimes across the States, Territories and the Commonwealth.

The key points in our submission were:

• Harmonisation across jurisdictions is fundamental to maintaining best practice, particularly for those organisations that operate across jurisdictional borders. Inconsistencies create unnecessary cost and complexity, which can undermine the efficacy of the WHS Laws and is ultimately to the detriment of workers.
• Best practice is maintained where the WHS laws are principles-based, not prescriptive – providing flexibility for organisations within a clear regulatory framework.
• The AICD considers that the model WHS laws are working in accordance with their purpose and there is no need to significantly chance the overall framework. Changes to the existing framework should only be made where there is clear evidence to support that the current framework is not best practice and there is a genuine gap that compromises worker safety. This includes changes to manage psychosocial risks.
• It is important that the model WHS laws continue to provide that a volunteer officer – including a volunteer director - cannot be prosecuted for failing to comply with their duties under the model WHS Act. This immunity is vital to ensure that voluntary participation at the officer level is not discouraged, especially in a range of critical sectors where directors are often unpaid (eg human services).
• The AICD acknowledges that industrial manslaughter has now been included in the WHS Model Laws and is being adopted by the various jurisdictions in various forms. Accordingly, the AICD believes there is the compelling need to harmonise WHS regimes across the States, Territories and the Commonwealth, as inconsistency between jurisdictions complicates attempts to conduct proper incident risk assessments, consequence analysis, and crisis governance planning. This creates unnecessary complexity and confusion.
• The AICD supports Safe Work Australia’s focus on ongoing monitoring and data collection to assess the potential impacts of Artificial Intelligence, given that the model laws are intended to be principles-based and adapt to changing work practices. As a general principle, the AICD believes that standalone AI WHS laws should only be included in the Model WHS Laws where there is gap in existing laws that risk causing harm to workers and where technology-neutral regulation is not possible. To the extent possible, AI use should be covered by the general WHS law duties and obligations that exist to protect workers.