Federal vs State – Do We Have The Balance Right?

OHS (or WHS outside Victoria) is principally a state and territory responsibility. The Federal Government supports national organisations such as SafeWork Australia which is important for establishing national standards including the workplace exposure standards. The change of Federal government may influence the way in which some or all of these organisations operate and their funding.  

We are told that the days of the independent public servant are over and that the ruling party now sacks and stacks their department personnel at will.  This may be the case with some of the high profile and highly political portfolios. In my limited experience, federal OHS departments in the past have not suffered this malignant malaise.  

As stated above, the main game in OHS is in the States and Territories. They are responsible for adopting or rejecting federal regulations, with or without amendments, and their subsequent enforcement.  Depending on the individual jurisdiction, changes in Canberra can have no effect or be partially or fully implemented.  And it seems like the individual States, as with COVID control, like to put their own stamp on OHS regulation. 

Victoria, in particular, has made a few amendments to their regulations to line up better with the national model but has not adopted the Model WHS Regulations fully.  All other States and Territories (since WA jumped on board recently) have pretty much taken the package with a few individual tweaks to deal with special needs. 

Larger States with large bureaucracies, like Victoria and NSW, are better placed to develop their own regulations. Smaller territories, like the ACT, might be expected to adopt the federal model or mimic their geographical captor NSW to save on administration and legal costs.  However, this is not the case! For example, the provisions for licensing an asbestos assessor vary across the jurisdictions. VIC has no licensing requirements, SA/WA/NSW/QLD require a licence and the ACT imposes additional requirements on anyone with a license.   

Regardless of these differences, we are moving towards uniformity and the general consensus seems to be that this is a good thing.  Perhaps, but not if it comes at the expense of flexibility and focussing on risk.  Too many times we seem to be doing things for compliance that have no real bearing on risk, sometimes at great financial and productivity cost. It seems that the legal eagles and bureaucrats didn’t talk to their own technical experts.  

Some changes which emerged in the national regulations make no sense from a risk reduction perspective. Achieving compliance can be complicated and time consuming via State regulatory processes, all wasted energy where there is no risk reduction return for the effort.  Most of the regulators have, at their disposal, excellent technical personnel who know how W/OHS works at ground level to help them draft regulations, although some States have run down the technical personnel in recent years.  

Bigger is not always better. If the national regulators, further removed from the coal-face, come up with less effective, poorly targeted regulation, resources that should be directed at risk reduction may be misdirected to compliance.  The solution: the regulators should get a bit closer to the regulated and work harder to give us laws focused tightly on reducing risk.