Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023

The Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2023 is a Commonwealth legislative instrument made under subsection 12D(2) of the Work Health and Safety Act 2011. It was made by the Chief of the Defence Force with the approval of the Minister for Employment and Workplace Relations, taking into account the need to promote the objects of the Act to the greatest extent consistent with the maintenance of Australia’s defence.

Its function is not to create a new general WHS code for business. Instead, it declares that specified provisions of the WHS Act do not apply in certain Defence contexts. Schedule 1 deals with non-warlike and warlike operations. Schedule 2 deals with all Defence members as a class. For most businesses, this will only matter if they contract with Defence, support Defence operations, or manage workers in environments where civilian personnel and Defence members interact.

The declaration defines a defence member to include members of the Permanent Navy, Regular Army and Permanent Air Force. It also includes certain Reserve members when they are rendering continuous full-time service, or when they are on duty or in uniform. In addition, a defence civilian involved in a warlike operation or non-warlike operation is included in the definition of defence member for this instrument.

The declaration also defines a deployed defence member. This is a defence member who is posted, assigned or attached for duty to a United Nations force, a foreign or multinational force, or the Australian Defence Force performing duties outside Australia.

For businesses, the practical point is that the declaration is focused on Defence personnel categories and Defence activities. It does not automatically extend the same carve-outs to civilian contractors just because they are working near Defence. A contractor may still have its own WHS obligations even where the declaration modifies how parts of the WHS Act apply to Defence members.

The declaration works through two main trigger points.

First, Schedule 1 says sections 38 and 39 of the WHS Act do not apply to a non-warlike operation and do not apply to a warlike operation. The declaration itself does not reproduce the text of those WHS Act sections, but they are generally associated with notifiable incidents and regulator notification under the Act. Because the declaration removes their application for those specified operations, businesses supporting operational Defence work should be careful not to assume ordinary incident-notification settings apply in exactly the same way to the operation itself.

Secondly, Schedule 2 says sections 47 to 79 and sections 84 to 89 of the WHS Act do not apply to all Defence members. In general terms, those provisions are commonly associated with consultation, health and safety representation, committees, issue resolution, entry permit arrangements and related participation mechanisms under the Act. The declaration does not remove those provisions for everyone. It says they do not apply to all Defence members.

The practical consequence is that businesses should map where their own systems rely on those provisions. If your procedures, site rules or contract promises assume those WHS Act mechanisms apply identically to Defence members, that assumption may need to be corrected.

The declaration gives detailed definitions of non-warlike operation and warlike operation, and those definitions are central because Schedule 1 only applies when an activity falls within one of them.

A non-warlike operation is an operation that occurs outside Australia, uses deployed Defence members, is unlikely to result in fatalities, includes a risk to deployed Defence members greater than the risk faced during peacetime duties, and authorises lethal force only in self-defence or when defending another person. The declaration gives examples including mine avoidance and clearance operations, weapons inspection and destruction operations, service protected or assisted evacuation operations, and peacekeeping operations.

A warlike operation is an operation that occurs outside Australia, uses deployed Defence members, is likely to result in fatalities, and authorises lethal force for specific military objectives. Examples given are operations undertaken as part of a declared war, combat operations against an armed adversary, and peace enforcement operations.

For a business owner, the key point is that these are not loose labels. They are defined terms in the instrument. If your project supports overseas Defence activity, the classification matters before you rely on any assumption about incident handling or WHS interface arrangements.

This declaration mainly removes the application of certain WHS Act provisions in specified Defence contexts. That means the practical task for businesses is not simply to read a list of new duties. It is to identify where ordinary WHS assumptions may be wrong.

For example, a contractor may have an incident escalation matrix that refers broadly to the WHS Act without distinguishing between contractor staff and Defence members. A labour hire business may use consultation forms and worker representation processes designed for a standard civilian workplace. A maintenance or logistics supplier may promise in a tender that all personnel on a Defence-facing project will be managed under ordinary WHS consultation and participation structures. Those documents may need refinement if Defence members are involved.

Businesses should also remember that the declaration does not say civilian contractors are outside the WHS framework. Your own duties, contractual commitments and operational controls still need to be assessed separately. The safer approach is to identify the interface points between your workforce and Defence members, then check whether any listed WHS Act provisions are being assumed to apply in a way that the declaration displaces.

Businesses working with Defence should review the documents and behaviours that most often carry hidden assumptions about the WHS Act. The declaration is especially relevant where paperwork has been copied from ordinary civilian projects without considering Defence-specific modifications.

Start with tender responses, contract schedules and statements of work. If they promise compliance outcomes by reference to the WHS Act in broad terms, check whether the wording needs to distinguish between your business obligations and the position of Defence members. Then review incident plans, emergency response procedures, consultation protocols, health and safety committee arrangements, issue escalation pathways, induction packs and subcontractor onboarding materials.

Operationally, managers should be trained not to improvise when a Defence-interface issue arises. If an event involves Defence members, or if a project supports an overseas operation, the right response is usually to escalate early and confirm the applicable framework rather than assume the ordinary civilian model applies unchanged.

The declaration is dated 31 March 2023. Federal Register details show it was registered on 31 March 2023. The instrument states that it commences on the day after it is registered, so the commencement date is 1 April 2023.

The declaration also revokes the Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012. Register information indicates a possible future repeal from 1 April 2033 under section 50 of the Legislation Act 2003, but that is not a current repeal. Businesses should always check the current Federal Register entry before relying on the instrument for a live project.

Before relying on this declaration in practice, a business should confirm four things. First, whether the people involved are Defence members as defined by the instrument. Secondly, whether the activity is outside Australia and uses deployed Defence members. Thirdly, whether the activity has been classified as warlike or non-warlike. Fourthly, whether your own documents rely on sections 38, 39, 47 to 79 or 84 to 89 of the WHS Act in a way that assumes they apply to Defence members or operational activities without modification.

If any of those points are unclear, the safest course is to verify the current register entry, read the underlying WHS Act provisions, and obtain project-specific advice before finalising documents or procedures.