AUSTRALIAN CONSTITUTIONAL LAW

AUSTRALIAN CONSTITUTIONAL LAW

 

 

 

 

 

 

 

 

Name:

Course:

Date:

 

 

 

 

 

 

Australian Constitutional Law

Introduction

The main purpose of this report is to analyze the constitutionality of the Safety of Industrial Chemicals Act 2013 proposed by the Commonwealth as a technique to tighten the regulations and safety standards within the industrial sector. The secondary purpose of this report is to elaborate on the system of inspections that shall be established by the minister. The analysis shall be limited to the industries and parties that are located within the Australian state. The report shall commence with the summary of the outline followed by the first section that assess the constitutionality of the Act. The next section addresses the procedure through which the inspections will be carried out. Lastly, the conclusion will contain a synopsis that will summarize the whole report and provide the way forward concerning the approach to be taken when handling government inspections.

The level of safety within industrial companies within Australia is an ongoing concern that has attracted the attention of political and economic stakeholders[1]. Safety is a critical issue for any serious business. The best method of ascertaining that the employees are operating in a safe environment, it is imperative that a safety inspection will be conducted. Smaller companies may prefer to conduct their own inspections using internal inspectors or have an external and independent entity conduct the entire process[2]. Regardless of the entity carrying out the inspection or the manner in which it is carried out, it is imperative to comply with the state and international policies that regulate the manufacture, distribution, transportation and use. The major enforcer of industrial safety at the international level is Occupational Safety and Health Administration (OSHA)[3]. However, OSHA alone cannot efficiently implement the industrial safety regulations designed to solve unique problems in each state[4][5]. At this point, the state intervenes, through the parliament, to develop several appropriate Acts that attempt to restore safety and order in the sector.

The government of Australia has been concerned with maintaining high levels of safety and standardization in the production activities among private and public industries within their territory. Several safety inspection units have been established in the past by the government to handle safety issues that have cost the lives of employees and loss of valuable property[6]. These inspection procedures have applied in nearly all the ministries including mining, transport, agriculture and food[7]. The backbone of these inspection procedures is a strong policy that describes the finer details of the inspections[8]. Moving closer to the case study, the declaration by the Common wealth to come up with the Safety of Industrial Chemicals Act 2013 translates into new regulations concerning the way in which inspections will be conducted in Australia.

 

Summary of Case Study

Due to the increasing number of industrial accidents across Australia, the Commonwealth presented the Safety of Industrial Chemicals Act 2013 that proposed to create a licensing scheme that would be issued to all companies involved in the manufacture, distribution, and use of industrial chemicals. However, before any company can receive any certification, they have to be inspected by government inspectors. Furthermore, the Act also provides for the creation of a ‘Commission for Chemical Products’ that will oversee the issuance, repealing and penalization of license holders. It is against this background that Rob and his brother Steve run a chemical processing factory and a transportation firm respectively. These two companies fall within the description of organizations that are expected to comply with the new Safety Act. The problem arises in the interpretation of the Safety Act particularly the constitutionality of the Act as well as its applicability within the Australia context.

Constitutionality of the Safety Act 2013

Constitutionality refers to the condition of making decisions while complying with the relevant constitution, laws, guidelines or an act. The Safety of Industrial Chemicals Act 2013 was adopted as law but it triggered massive debates concerning its legal basis, the manner in which it was passed into law and several provisions. The act was recurrently opposed on constitutional grounds. Several public Acts clearly specify that the ‘people’ have the right to conduct their own safety inspections without the intrusion of the state[9][10]. In these clauses, the ‘people’ referred to the individuals and private companies within Australia. However, the Safety Act infringes on, and tries to soften the earlier provisions related to safety standards and this is the main reason that makes it unconstitutional[11]. Proponents of the Safety Act 2013 argue that the act lacks any substantial clauses that prohibit private companies from conducting their own safety inspections. The major industrial accident that happened in Queensland created a major political catastrophe despite the existing safety laws that were put in place earlier. If the Safety Act 2013 were in place, the Commonwealth might have been aware of the extent of accidents and put a stop to it[12]. However, a section of the Australian senators had a different understanding of the Safety Act case[13][14]. Arguing using the interpretation of the cases for and against the Safety Act, the politicians concluded that the courts realized that states were unable to prohibit companies from conducting internal audits and inspections[15]. While the court had discovered limitations to be legal when applied to inspections banned in compliance with earlier acts such as the Work Health and Safety Act 2009, they were not constitutional when they applied to private companies fully. It would be difficult for most people and companies to support the Safety Act 2013 that would introduce stringent inspection and licensing procedures for all companies in the Australian industrial sector dealing with chemicals.

Several bodies and associations such as the Australian Information Industry Association (AIIA) are bound to oppose the creation of a statewide licensing process as well as tighter safety regulations[16]. The implementation of the Safety Act 2013 has the possibility of subjecting numerous companies and individuals to increased administrative expenses, bureaucracies and court cases caused by the implementation of the licensing process. This will happen in the event that a company is suspended, is penalized or when they delay in processing their licenses. Companies will also incur higher operational expenses as they struggle to pay the licenses on an annual basis[17]. This section of the act is highly questionable and contributes to a major part of the constitutionality case as they conflicted with several Australian laws on civil rights[18]. If the companies’ safety and interests were to be put into mind, the companies would be required to complete a mountain of paperwork for several licenses including purchases and operations. Considering the expenses that would be incurred by the company, it would be imprudent to establish a registration and licensing process. The Commonwealth maintained that the licensing system would be important in tracking down rogue companies that operate in unsafe conditions[19].

The Legislative Process

One of the main reasons behind the large opposition of the Safety Act was that it was formulated and passed through Parliament in haste. The reason for blaming the bill as being hastened was that it was passed through legislature without going the process of public hearings and deliberations with politicians. In fact, senators and other stakeholders have to discuss the document exhaustively before it is presented for assent by the president[20][21]. This problem had been repeated in over 13 earlier bills that were related to industrial safety[22]. It is imperative to note that safety policies have to be deliberated among all the stakeholders before being finalized as they hold critical implications on the financial and marketing situation of companies[23].

Systems of Public Inspection

The inspection procedure is divided into two main sections: the inspection and the post-inspection procedure. These two sections work together to ensure that the Commission for Chemical Products conducts a thorough and objective inspection for each company. The inspection plan is designed in the form of a checklist that contains reasons for conducting the inspections. The inspection is further divided into a general inspection and a common injuries inspection. The inspection also describes the main areas and risks that are being investigated within every company. These may include common injuries that are cause by moving objects, muscular stress, stationary objects and contact with chemicals.

            The system of inspections uses two main approaches: risk elimination and risk reduction techniques to enforce the inspection procedure. This process is necessary after the initial inspection has been conducted, as its outcomes will determine whether a company will be awarded a license or not. Risk elimination is considered the most favorable option since it will ensure companies are kept safe and that they are not closed down[24]. The solution to eliminate the hazard may involve elimination the expired or old chemicals, replacing the old electrical chords and cleaning up any spills. The alternative option for the Commission is to propose measures for reducing the risks such as purchasing warning signs and directions, introducing safety equipment for the employees and conducting maintenance procedures.

Two types of inspections will be conducted to ensure that the safety standards are implemented on a constant basis. The short hazard inspection is planned to be carried out on a weekly basis and will involve the inspection of common working environment. The quarterly hazard inspection is carried out three times in a year. It involves a thorough safety inspection that covers all operations in a company. This type of inspection is very vital as it reveals the state of the company infrastructure such as the condition of machinery, the emergency measures and other safety precautions that are expected in most establishments that handle toxic material.

Reflection

Rob and Steve are both owners of companies that are involved in the industrial chemical sector. Their companies were however experiencing problems with their infrastructure, safety standards and other processes that are fundamental towards running the company. Chemical factories are responsible for producing and distributing lethal substances that may cause deaths and wastage of resources. Therefore, such companies need to adopt and maintain high levels of safety standards when handling these chemical substances. The government’s action of introducing tougher laws and licensing for chemical was justified, as it would result in higher safety standard for the employees and increased quality for the products. Both Rob and Steve have managed their companies in a haphazard manner that resulted in low safety standards, poor safety policies and ineffective safety equipment within the premises. Therefore, when the Safety Act 2013 would be implemented fully, it would mean that both their companies would be closed. This is because most of their equipment was worn out and not functioning properly. Their buildings were probably worn out and their machinery was probably outdated. These problems will disqualify the factory and the transport company from being suitable for a license[25].

Conclusion

The issue of constitutionality in the case concerning the Safety Act 2013 is highly valid. The Safety Act 2013 sought to introduce new registration and licensing processes for all private and public companies. These companies were expected to apply for the license that would be issued and administered by the Commission for Chemical Products. Prior to being issued with a license to operate, the Commission required that all companies had to be inspected for safety risks[26]. Furthermore, with the introduction of the licenses, industrial companies and other organizations within the industry were subjected to higher operational rates and this would be reflected in reduced sales among customers and lower profit margins for the companies[27][28]. The thoroughness of the inspection and new regulations would probably put many Australian companies out of business[29]. The Safety Act 2013 will have grave economic consequences for the country. It should be revised before implementation.

 

Bibliography

Arocena, Pablo & Imanol Núñez. 2010. “An empirical analysis of the effectiveness of occupational health and safety management systems in SMEs”. International Small Business Journal. 28 (4): 398-419.

Australia. 2003. National workers’ compensation and occupational health & safety frameworks: issues paper. Belconnen, A.C.T.: The Commission.

Australia. 2004. National workers’ compensation and occupational health & safety frameworks. Melbourne: The Commission.

Australia. 2004. Safety Rehabilitation and Compensation Act 1988: reprinted on 1 November 2004 (taking into account amendments up to and including those made by Act No. 52, 2004). Canberra: Attorney-General’s Dept.

Australia. 2006. Review of the Australian consumer product safety system: Productivity Commission research report. Melbourne: Productivity Commission.

Australia. 2007. Annual review of regulatory burdens on business: primary sector: Productivity Commission Draft Research Report. Melbourne, Vic: Productivity Commission.

Australia. 2007. Manufacturing sector: overview of structural change: industry brief. Canberra A.C.T.: Dept. of Innovation, Industry, Science and Research.

Australia. 2008. Safe Work Australia (Consequential and Transitional Provisions) Act 2008: no. 157, 2008 an Act to deal with transitional and consequential matters in connection with the Safe Work Australia Act 2008, and for related purposes. [Canberra]: [Attorney-General’s Department].

Australia. 2009. Australian Fair Work Act 2009: with regulations and rules. North Ryde, N.S.W.: CCH Australia.

Australia. 2009. Performance benchmarking of Australian business regulation: occupational health & safety. Canberra City, ACT: Productivity Commission.

Australia. 2010. Performance benchmarking of Australian business regulation: occupational health & safety. Canberra City, ACT: Productivity Commission.

Australia. 2011. Civil aviation safety: agreement between the United States of America and Australia; signed at Canberra, June 21, 2005. [Washington, D.C.: U.S. Dept. of State.

Brett Mason. 2004. Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002. Canberra: The Committee.

CCH Australia Limited. 2011. Australian work health & safety law reporter. North Ryde, NSW: CCH Australia.

CCH Editors. 2011. Understanding the Fair Work Act. North Ryde, N.S.W.: CCH Australia.

Comcare Australia. 2009. Building a case to invest in OHS and organizational health. Canberra: Comcare Australia.

Creighton, W. B. & Andrew Stewart. 2005. Labor law. Annandale, N.S.W.: Federation Press.

Creighton, W. B. & Anthony Forsyth. 2012. Rediscovering collective bargaining: Australia’s Fair Work Act in international perspective. New York, NY: Routledge.

Dunn, Cormack E. 2012. Annotated Australian work health and safety legislation. North Ryde, N.S.W.: CCH Australia Limited.

Forsyth, Anthony & Andrew Stewart. 2009. Fair Work: the new workplace laws and the Work Choices legacy. Annandale, N.S.W.: Federation Press.

Johnstone, Richard & Michael Tooma. 2012. Work health and safety regulation in Australia: the model act. Annandale, N.S.W.: Federation Press.

Johnstone, Richard. 2004. Occupational health and safety law and policy: text and materials. Sydney: Lawbook Co.

Patterson, Michele. 2005. “Labor inspection policies, practices and experiences in Australia”. Labor Education. (140-141): 140-141.

Roberts-Yates, D. 2006. “Employers’ perceptions of claims/injury management and rehabilitation in South Australia”. Asia Pacific Journal of Human Resources. 44 (1): 102-122.

Sherriff, Barry Noel & Michael Tooma. 2010. Understanding the model Work Health and Safety Act. Sydney: CCH Australia.

Standards Australia (Organization). 2006. Safety in laboratories. Part 8, Part 8. Sydney, NSW: Standards Australia.

Standards Australia (Organization). 2006. Safety in laboratories. Part 2, Part 2. Sydney, NSW: Standards Australia.

Standards Australia Limited. 2006. Safety of machinery. Sydney, NSW: Standards Australia.

Tooma, Michael. 2008. Safety, security, health and environment law. Sydney: Federation Press.

Victoria. 2004. Occupational health and safety act 2004: Act No. 107/2004. South Melbourne: Anstat.

Western Australia. 2007. Code of practice: occupational safety and health in the Western Australian public sector. West Perth, W.A.: Dept. of Consumer and Employment Protection.

WorkCover NSW. 2010. Draft model work health and safety regulations signpost and summary of key changes in NSW. Gosford, N.S.W.: WorkCover NSW.

Workplace Relations Ministers’ Council. 2009. National review into model occupational health and safety laws: second report. [Braddon, A.C.T.]: [Dept. of Education, Employment and Workplace Relations].

Workplace Safety Australia. 2008. National safety handbook. Bondi Junction, NSW: Workplace Safety Australia.

WorkSafe Victoria. 2005. Information for manufacturers and suppliers of substances: Occupational Health and Safety Act 2004. Melbourne: WorkSafe Victoria.

[1] Creighton & Anthony Forsyth, Rediscovering collective bargaining: Australia’s Fair Work Act in international perspective. (New York, NY: Routledge, 2012), 65.

[2] Australia, Annual review of regulatory burdens on business: primary sector: Productivity Commission Draft Research Report. (Melbourne, Vic: Productivity Commission, 2007), 78.

[3] Australia, manufacturing sector: overview of structural change: industry brief. (Canberra A.C.T.: Dept. of Innovation, Industry, Science and Research, 2007), 198.

[4] CCH Editors, Understanding the Fair Work Act. (North Ryde, N.S.W.: CCH Australia, 2011), 238.

[5] Pablo Arocena & Imanol Núñez, An empirical analysis of the effectiveness of occupational health and safety management systems in SMEs”. (International Small Business Journal, 2004), 281.

[6] Western Australia, Code of practice: occupational safety and health in the Western Australian public sector. (West Perth, W.A.: Dept. of Consumer and Employment Protection, 2007), 378.

[7] Barry Noel Sherriff & Michael Tooma. Understanding the model Work Health and Safety Act. (Sydney: CCH Australia, 2010), 98.

[8] Workplace Safety Australia, National safety handbook. (Bondi Junction, NSW: Workplace Safety Australia, 2008), 652.

[9] Australia, Performance benchmarking of Australian business regulation: occupational health & safety. (Canberra City, ACT: Productivity Commission, 2010), 56.

[10] Michele Patterson, Labor inspection policies, practices and experiences in Australia”. (Labor Education, 2005), 140-141.

[11] Brett Mason, (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002. (Canberra: The Committee, 2004), 449.

[12] Richard Johnstone, Occupational health and safety law and policy: text and materials. (Sydney: Lawbook Co), 87.

[13] Standards Australia, Safety in laboratories. Part 8, Part 8. (Sydney, NSW: Standards Australia, 2006), 58.

[14] WorkSafe Victoria, Information for manufacturers and suppliers of substances: Occupational Health and Safety Act 2004. (Melbourne: WorkSafe Victoria, 2005), 51-56.

[15] Richard Johnstone & Michael Tooma, Work health and safety regulation in Australia: the model act. (Annandale, N.S.W.: Federation Press, 2012), 298.

[16] Australia, Review of the Australian consumer product safety system: Productivity Commission research report. (Melbourne: Productivity Commission, 2006), 382.

[17] Creighton & Stewart. Labor law. (Annandale, N.S.W.: Federation Press, 2005), 207.

[18] Standards Australia Limited, Safety of machinery. (Sydney, NSW: Standards Australia), 176.

[19] WorkCover NSW, Draft model work health and safety regulations signpost and summary of key changes in NSW. (Gosford, N.S.W.: WorkCover NSW, 2010), 497.

[20] Anthony Forsyth & Andrew Stewart. Fair Work: the new workplace laws and the Work Choices legacy. (Annandale, N.S.W.: Federation Press, 2009), 385.

[21] Roberts-Yates, “Employers’ perceptions of claims/injury management and rehabilitation in South Australia”. (Asia Pacific Journal of Human Resources, 2006), 176.

[22] Australia, Civil aviation safety: agreement between the United States of America and Australia; signed at Canberra, June 21, 2005. (Washington, D.C.: U.S. Dept. of State, 2011), 278.

[23] CCH Australia Limited, Australian work health & safety law reporter. (North Ryde, NSW: CCH Australia, 2011), 238.

[24] Comcare Australia, Building a case to invest in OHS and organizational health. (Canberra: Comcare Australia, 2009), 562-67.

[25] Ibid 56

[26] Michael Tooma. Safety, security, health and environment law. (Sydney: Federation Press, 2008), 67.

[27] Workplace Relations Ministers’ Council, National review into model occupational health and safety laws: second report. (Braddon, A.C.T.: [Dept. of Education, Employment and Workplace Relations, 2009), 176.

[28] Victoria, Occupational health and safety act 2004: Act No. 107/2004. (South Melbourne: Anstat, 2004), 67.

[29] Cormack Dunn, Annotated Australian work health and safety legislation. (North Ryde, N.S.W.: CCH Australia Limited, 2012), 173.