Introduction

The implementation of the model Work Health & Safety Act (WHS Act) in all states and federal jurisdictions was scheduled to commence on 1 January 2012. There was to be no moratorium upon commencement.

As commencement date approaches, it is worth considering where the various jurisdictions are placed in terms of their enactment of model Acts, Regulations and Codes of Practice. With 31 days to go, all jurisdictions are at different stages.

Jurisdictions Fully Enacted

Queensland

Queensland was the first jurisdiction to adopt the model WHS Act on 26 May 2011. The WHS Act 2011 (QLD) was assented to on 6 June 2011, with an expected commencement date of 1 January 2012. The majority of the Work Health and Safety Regulation 2011 (QLD) will commence with the Act.

Queensland is the only jurisdiction to have enacted both the model Act and Regulations, in full preparation for a 1 January 2012 commencement.

Jurisdictions Partly Enacted

New South Wales

In New South Wales, the WHS Act 2011 was passed by Parliament on 27 May 2011 and assented to on 7 June 2011 with a scheduled date of commencement of 1 January 2012. The Regulations and Codes of Practice are still yet to be adopted.

South Australia

South Australia's WHS Act 2011 is still before the Legislative Council. Notably, the South Australian Minister for Industrial Relations reiterated his government's commitment to a 1 January 2012 commencement.

Tasmania

In Tasmania, the Second Reading for the legislation occurred in the Upper House on 22 November 2011. The Work Health and Safety Bill 2011 (Tas) has not yet passed, but the desired 1 January 2012 commencement date has been acknowledged.

The Tasmanian government has indicated that it does not intend to adopt the model Regulations in their entirety.

Australian Capital Territory

The Australian Capital Territory passed the WHS Act 2011 on 20 September 2011. The date of commencement is scheduled for 1 January 2012, however if no written notice is given nominating an earlier date, the default date for commencement will be 29 March 2012.

Northern Territory

The Northern Territory introduced legislation to its Lower House on 27 October 2011. There is a stated intention to abide by a 1 January 2012 commencement date.

Commonwealth

Federal Parliament passed the legislation on 24 November 2011 with a scheduled commencement date of 1 January 2012. There has been no announcement about the Regulations or Codes of Practice.

Other Jurisdictions

Western Australia

The Western Australian government has been very clear in indicating its intention to ensure that the implementation of any amendments to its current WHS legislation will only be consistent with the best interests of Western Australia. At this point, no legislation is before parliament. A draft Bill is before the Commission for Occupational Safety and Health for recommendation to the Minister.

Victoria

The Victorian government has urged deferment of the harmonised provisions for 12 months. Whilst there has been no definitive pronouncement of this intention, the fact that there is no WHS legislation before parliament indicates that Victoria will certainly not be ready for a 1 January 2012 commencement.

Where are the Regulations and Codes of Practice?

Queensland has been the only state to pass any Regulations to interrelate with the Act. At time of writing, there had been an in principle agreement between the various Ministers in relation to the model WHS Regulations on 10 August 2011.

No jurisdiction has adopted the Codes of Practice. Indeed some Codes are still out for public comment until 16 December 2011. Safe Work Australia is recommending that Model Regulations and a first round of Codes be implemented in each jurisdiction to facilitate a commencement date of 1 January 2012.

Conclusion

One month out from the proposed commencement date, Western Australia and Victoria have not even introduced the model Act into parliament. On this basis, it is difficult to see how those states would be in a position to meet the 1 January 2012 deadline.

As for the other states, territories and Commonwealth, only Queensland appears capable of meeting the 1 January 2012 deadline with relative ease.

Realistically, delivery of all model Codes of Practice will not occur before 1 January 2012. On that basis, it is very difficult to see the new provisions operating effectively, particularly given the necessary interrelationship between the Act, the Regulations and the Codes.

A further complication is the intention for no moratorium on the commencement of the new provisions. Given the timeframe for delivery of Regulations and Codes, no moratorium on a 1 January 2012 commencement date would objectively seem quite unreasonable.

The next 31 days will be very interesting...or busy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.