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Legislative Assembly for the ACT: 1997 Week 9 Hansard (2 September) . . Page.. 2718 ..

MR MOORE (continuing):

The main thrust of this Bill is to include some remaining areas of regulation covered by the Machinery Act and the Scaffolding and Lifts Act under the aegis of the Occupational Health and Safety Act. This is an agreeable objective, Mr Speaker. In summary, my concern about the Bill is that sections of it undermine the wide coverage of the occupational health and safety legislation by use of ministerial power under section 7 to exclude the application of the law. There are four points that I will deal with, Mr Speaker. The first point is unsound delegation of legislative power; the second point is inappropriate rights of review; the third point is the undesirable removal of disallowability of fee determinations; and the fourth point is a growing tendency to advance legislation with elements which offend against good constitutional and legal principle.

Mr Speaker, on the first point - unsound delegation of legislative power - the Bill substitutes for section 7 of the Act a new section 7, which widens the scope of the Minister's powers to exempt bodies from the application of the Occupational Health and Safety Act. We have to ask ourselves, Mr Speaker, why we should provide exemptions, anyway, from a piece of legislation that provides for protection of workers. That is what occupational health and safety is about. The proposed new section extends the power to individual employees, employers and workplaces. This end in itself may actually not be inappropriate, if the Minister can give examples of where such an exemption would be necessary or where it would make sense. In any event, very narrowly defined classes could be determined using the existing law to achieve the same result. So, I do not think it is necessarily a change in result, but it is a good time for us to consider it.

However, while the current section provides that a determination of exemption is a disallowable instrument - that applies right across the current law - the new section requires only the class exemptions to be disallowable. In other words, new individual exemptions would not be disallowable. This is an extraordinarily broad power for a Minister to possess, for the Minister could exclude the operation of the law without review of their decision. The Assembly should not be party to such broad delegation of legislative power. The interesting part is, Mr Speaker, on reading the legislation and the explanatory memorandum, it purports to maintain the principle of disallowability but this legislation reduces its range. That is why I believe that, on his first reading of the Bill, Mr Berry missed it, as indeed, on my first reading of the Bill, I missed it as well. It appears to increase disallowance. In fact, it applies disallowance to a limited number of classes and, by doing that, it actually reduces disallowance. It reduces the power of the Assembly to monitor what is going on in terms of occupational health and safety.

The final result, Mr Speaker, is that a member of the Executive would have a non-reviewable power to make an essentially legislative decision, one determining the application of the law. Contrast this with a disallowable instrument, which takes on the character of a proposal made by the Executive but with the final decision made by the legislature, by act, omission or a disallowance motion. To correct the problem but leave in place the broadening of the range of exemptions which the Minister can - subject to disallowance - grant, we need only remove the words in the proposed new section which limit disallowability to the class exemption powers. You will see that in my amendment No. 2. Mr Speaker, I think it is worth reminding you that the amendment would not

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