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Does the Work Health and Safety Act Make it Harder to Put Diplomats in the Field?

06 Aug 2021
By Paul Foley
Australian High Commission, Honiara, Solomon Islands. Source: Jenny Scott https://bit.ly/3A6KTua

Australia’s international environment has become more demanding. The operation of the Work Health and Safety Act may raise the bar for the use of diplomats and development staff in some contingencies.

Ensuring strong work health and safety outcomes for all staff is a central concern of the leadership of any agency, as well as a community expectation reflected in the 2011 Work Health and Safety (WHS) Act. However, in giving force to these concerns and expectations, some aspects of the act may have the effect of limiting potential options available to the government in responding to a range of future international contingencies.

The Work Health and Safety Act

The WHS Act, in replacing earlier legislation, gave effect to a federal-state agreement for harmonised national work health and safety laws. A key objective of the act is the protection of workers “against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.” The act is underpinned by the principle that workers are given the highest level of protection against such harm “as is reasonably practicable.” The act maintains the extra-territorial reach of earlier legislation and applies to the overseas operations of Australian government agencies, including those of the Department of Foreign Affairs and Trade (DFAT).

Changes introduced under the WHS Act involved new and tougher penalties, including fines and imprisonment for individuals and bodies corporate for breaches of the act.  In order to promote accountability and responsibility for safety outcomes, the Commonwealth’s immunity from criminal liability for offences under the WHS Act was removed.  Previously it was exposed only to civil remedies.

The WHS Act includes processes for seeking exemptions, as well as a number of carve-outs concerning Australia’s defence, national security, and covert or international police operations.  Under these provisions, the chief of the Australian Defence Force (ADF), the heads of Australia’s operational intelligence organisations, the Australian Federal Police (AFP) commissioner, and the Border Force commissioner may, with the approval of the minister for employment and workplace relations, declare that specific provisions of the act either don’t apply or apply subject to modifications in relation to specified activities or members of their agencies.   They are, however, required to take into account the need to promote the objects of the ct to the greatest extent consistent with the maintenance of Australia’s defence and national security.

These carve-outs do not exempt these agencies from the WHS Act, nor can they disregard the importance of work health and safety, which the leadership of any agency will always regard as essential to the protection of their most valuable resource. Rather the carve-outs reflect the reality that the nature of some activities of these agencies may limit their ability to undertake the full range of actions under the act to eliminate or manage work health and safety risks. Defence, for example, declared an exemption on warlike or non-warlike operations such as UN peacekeeping to preserve WHS incident sites because it “invariably does not have effective control over the territory, particularly within a non-permissive or hostile environment.”

Any declaration that the act either doesn’t apply or applies in modified form is a process with checks and balances. These include bringing to bear a political lens in requiring the agreement of the minister responsible for the WHS Act.

Diplomats in the field

DFAT operates in a wide range of international contexts and environments. These include locations of elevated risk, where diplomats and development staff serve alongside colleagues from agencies with defence and national security carve-outs under the WHS Act.

Many Australian diplomatic missions implement measures to eliminate or mitigate other risks to work health and safety not normally encountered in Australia.  Australia has maintained diplomatic missions in conflict zones, including Baghdad, and until recently, Kabul, where extensive security measures are required to protect staff. Missions in a range of other locations, including Jakarta- which was bombed in 2004 – have also required measures to mitigate high levels of security risk.

Governments have sometimes deployed diplomats and development staff away from diplomatic missions, including in civil-military operations to stabilise conflict-prone areas. In recent years, US-led coalitions widely deployed diplomats and development staff alongside military forces in Iraq and Afghanistan.

Australia has undertaken similar interventions. Three key examples are the Bougainville Peace Monitoring Group (PMG) from 1997 to 2006, the Regional Assistance Mission in the Solomon Islands (RAMSI) from 2003 to 2017, and the Uruzgan Provincial Reconstruction Team (PRT) in Afghanistan from 2010 to 2013. All three were multi-agency (and multi-national) interventions in locations with risks to the health and safety of those deployed, including environmental health risks, the presence of armed individuals or groups, and in Afghanistan, the wider warlike conditions. The skills and capabilities that diplomats and development staff brought to those missions were as important as those of colleagues from the ADF, AFP, and other agencies they lived and served alongside.

However, DFAT does not have the same carefully calibrated carve outs under the WHS Act, which the ADF, AFP, and other agencies can use in responding to what may be shared work health and safety risks. Officials considering recommending to government any deployment of DFAT staff to risky situations do so knowing that they have less access to the full range of tools to manage those risks than their counterparts in these agencies.

A carve out for DFAT under the WHS Act?

Even if the risk calculus between the deployment of DFAT staff and those from uniformed agencies is regarded as different, making the bar potentially higher for the deployment of DFAT civilians than civilians from Defence, AFP, or intelligence agencies doesn’t make much sense. In responding to any future international contingencies, the objective should be for government to have access to the widest possible range of options. Different levels of access to tools to manage work health and safety risks between agencies operating together seems to work against this objective.

Future interventions along the lines of the Uruzgan PRT are now unlikely with the end of the 9/11 era and the return to state-to-state competition. However, the need for the government to consider future multi-agency efforts in the Pacific, including in response to climate-induced natural disasters or any return of troubles in Bougainville, does seem quite possible.

The government is also likely to wish to maintain diplomatic missions in challenging security environments or locations with weaker work health and safety cultures than Australia. Policymakers may also seek options for more cost-effective deployment of diplomats in some locations away from formal diplomatic missions.

Diplomats and development staff therefore appear likely to continue to be called upon to serve in situations where the management of risks to work health and safety will remain challenging.  Ensuring strong work health and safety outcomes in those situations will remain a central concern in line with normal leadership principles and the requirements of the WHS Act.

The question should be asked whether DFAT should have similar access to the same carefully calibrated carve outs under the WHS Act available to the agencies which they may be serving alongside in order to most effectively manage the risks to work health and safety.

The contributions of the PMG in Bougainville, RAMSI in the Solomons, and the PRT in Uruzgan to what Australia was able to achieve in those interventions would not have been possible without the diplomats and development staff involved.  In any future interventions of this nature,  making it more difficult to deploy diplomats and development staff will both reduce the overall effects that Australia can bring to bear and make the jobs of the ADF, AFP, and other agencies who might be involved more difficult.

As Australia’s international environment becomes more demanding, governments will seek as many options as possible in responding to emerging challenges. The operation of some aspects of the WHS Act, in potentially raising the bar to deploy diplomats and development staff in some contingencies, may work to limit those options.

Paul Foley worked in DFAT for 36 years, including as Ambassador in Dili, Kabul and Tehran as well as Ambassador for Counter-Terrorism.

This article is published under a Creative Commons Licence and may be republished with attribution.