Regulations and Determinations

The majority voted against a motion introduced by NSW Senator David Shoebridge (Greens):

That the Work Health and Safety (Operation Sovereign Borders) Declaration 2024, made under the Work Health and Safety Act 2011, be disallowed.

What does this motion do?

Had this motion been successful, it would have stopped the instrument from having legal force. Senator Shoebridge explained that:

Let's be very clear as to what this regulation does and why the Greens are moving this disallowance motion. The next time a mother and her children seek asylum in Australia—and they travel here, often at huge risk, to build a better life and escape awful conflict—this regulation says not only that they can be stopped by a militarised force and then coerced, under the laws of this country set by both Labor and the coalition, to return to a country they fled when they faced persecution or forced into a detention camp in Nauru but that the quasi-military force authorised by this parliament, under the Albanese government, is now exempt from even taking reasonable care that its actions do not adversely affect the health and safety of that mother and her children. It removes the obligation under work health and safety laws to take reasonable care of women, children and others, often in the most dangerous situations, where they're exposed to terrible risks.

What does this instrument do?

According to the instrument's explanatory statement:

Operation Sovereign Borders (OSB) is a military-led, whole-of-government border security operation established in 2013. The purpose of OSB is to protect Australia’s borders and maritime interests, combat people smuggling in the region and prevent people from risking their lives at sea. To give effect to this purpose, operational personnel, including members of the Australian Defence Force and Australian Border Force, are required to engage in a range of high-risk activities (OSB activities) to protect and secure Australia’s maritime approaches. These OSB activities are:

• the interception, boarding, control or movement of a vessel suspected of carrying illegal maritime arrivals, as part of:

• deciding whether to move the vessel outside of Australia; or

• moving the vessel outside of Australia; and

• the control or movement at sea of a person suspected of being an illegal maritime arrival, for the purposes of:

• deciding whether to move the person to a place outside Australia; or

• moving the person to a place outside of Australia; or

• moving the person to or from a vessel for the purposes of moving a person to a place outside of Australia.

The operational personnel who undertake these OSB activities fall within the meaning of ‘worker’ set out in section 7 of the WHS Act [Work Health and Safety Act 2011]. The consequence of being a ‘worker’ for the purpose of the WHS Act is that OSB operational personnel are subject to provisions of the WHS Act that apply to workers and are required to comply with relevant work health and safety obligations in the course of performing their duties.

Subsection 12D(1) of the WHS Act provides that no actions taken by a person, or a person refraining from taking any action, under the Act are to prejudice Australia’s defence. Subsection 12D(2) relevantly provides that the Chief of the Defence Force may declare that certain provisions of the WHS Act do not apply (or apply subject to modifications set out in the declaration) in relation to specified activities, specified members of the Defence force or members of the Defence force included in a specified class.

The purpose of the instrument is to declare that the following provisions of the WHS Act do not apply to the OSB activities:

• worker duties (paragraphs 28(a) and (b) and paragraphs 29(a) and (b))

• duty to preserve the site of a notifiable incident (section 39)

The effect of the instrument is that when operational personnel engage in the OSB activities, they will not be subject to these provisions of the WHS Act. All activities that do not fall within the scope of being an OSB activity will still be subject to these (and other) provisions of the WHS Act.

Error in the record

Note that this division currently (as of 26/09/24) shows West Australian Senator Fatima Payman (Independent) as a rebel, but this is wrong as she is now an independent senator.