14 March 2023

Loophole that allowed for 'unfortunate breach of parliamentary privilege' to be closed: inquiry report

| Claire Fenwicke
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Legislative Assembly

A WorkSafe prohibition notice was issued to the Legislative Assembly in 2022. Photo: Region.

Amended legislation to ensure WorkSafe ACT can’t breach Legislative Assembly privileges again has been recommended by a committee inquiry.

This comes after it was found the regulatory body’s decision to issue a COVID-19 prohibition notice on budget estimates in August last year breached the Assembly’s special legal status, which allows it to operate free from outside interference.

This was because the Work Health and Safety Act (WHS) doesn’t have an express statutory provision for the Assembly to repeal its privileges.

“[This meant] the Legislative Assembly retained its inherent powers and immunities to manage its own affairs and protect its proceedings from outside interference, i.e. that of WorkSafe ACT,” a previous select committee report found.

As a result of the constitutional scandal, the Public Accounts Standing Committee has now found the Work Health and Safety Amendment Bill 2022 needs to be amended further to make it absolutely clear the Legislative Assembly is in fact a workplace.

That’s because previous legal advice found the Assembly technically didn’t fall under the WHS Act’s definition of a workplace.

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Speaker Joy Burch proposed a second amendment clarify that nothing in the Act limited the power, privilege or immunity given under the Self-Government Act, under which the Assembly operates, to the Legislative Assembly or any committees or members.

“[N]othing in this Act gives the regulator or anyone else exercising a function under this Act the power to prohibit a proceeding of the Legislative Assembly or any of its committees,” her updated suggested amendment stated.

During public hearings, she said the change was necessary to clarify the balance between the WHS Act powers and the Assembly’s privilege.

“[It] applies, but the matter of parliamentary privilege also needs to be recognised, understood and not interfered with,” Ms Burch said.

“They are almost two parts of the same whole, for the purpose of clarity.”

This suggestion was supported by the report.

Changes would also be made to make it clearer that the bill applies to our politicians, also known as MLAs, and the people who support them, which Ms Burch said she had always considered was the case regardless.

WorkSafe ACT submitted to the inquiry that this clarification was necessary as it had already been made in Commonwealth legislation.

“Similar to its view that the Legislative Assembly is a workplace within the meaning of the Act, WorkSafe ACT is of the view that MLAs have a duty to exercise due diligence to ensure their workplaces comply with their WHS obligations and views them as officers under the act,” it said.

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Finally, the report noted a memorandum of understanding (MOU) was needed between WorkSafe ACT and the Legislative Assembly to outline protocols where the regulatory body could operate in the space.

A similar MOU already exists between the Assembly and the AFP.

It sets out specific instructions regarding police work at Assembly precincts, such as not allowing search warrants to be carried out on a sitting day and that questioning of Members can’t occur when they’re required to be performing parliamentary duties.

“The Committee agrees that the presence of a similar MOU could prevent another unfortunate breach of parliamentary privilege by comprehensively setting out protocols for WorkSafe ACT when engaging with Assembly members, its staff, or its precincts,” the report stated.

“[That’s] while also allowing for Assembly workers to enjoy the full protection of the WHS Act ensuring a safe and fair workplace.”

WorkSafe ACT Commissioner Jacqueline Agius welcomed the report and the amendment bill, stating it provided certainty that all Assembly workers were “entitled to be safe at work”.

“WorkSafe ACT believes all workers and all workplaces are entitled to be safe and healthy – this includes workers within the Legislative Assembly,” she said.

Ms Agius confirmed preliminary talks had begun between herself and the Speaker to develop the MOU.

“These discussions are being conducted in good faith and will not result in a reduction of safety within the Legislative Assembly,” she said.

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One cannot doubt the good deeds of Worksafe ACT in working with the government in achieving better laws and protections safeguarding employees and labourers on construction sites. An improved and enhanced system with more robust penalties and better opportunities to prosecute offenders in stemming the unacceptably high number of breaches and deaths in our construction sector. However, one cannot get away from the fact that this committee and its members have reached unanimous agreement, stating their belief that a minister of this government and the ACT’s Work Health and Safety Commissioner “improper[ly] interfered with the work of [a] committee”. The committee was also forced to correct factually incorrect public statements made by the minister. The findings of this latest committee inquiry, and its report, provides certainty but it should never have happened. The behind the scenes shenanigans of the Minister cost taxpayers and delayed estimates!

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