Work Health and Safety (Operation Sovereign Borders) Declaration 2024

The Work Health and Safety (Operation Sovereign Borders) Declaration 2024 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 and is administered by the Department of Employment and Workplace Relations.

Its role is limited. It declares that certain identified provisions of the WHS Act do not apply in relation to certain activities carried out under Operation Sovereign Borders. The instrument is not a broad exemption for all government work, all maritime work or all border-related work.

The declared activities are tightly defined. They concern the interception, boarding, control or movement of a vessel suspected of carrying an illegal maritime arrival, and the control or movement at sea of a person suspected of being an illegal maritime arrival, where those activities are part of deciding whether to move the vessel or person outside Australia or actually moving them outside Australia. The instrument also covers moving the person to or from a vessel in the course of those activities.

Section 5 of the instrument is the key operative provision. It says that, for subsection 12D(2) of the WHS Act, the following provisions of the Act do not apply in relation to the specified activities:

Paragraphs 28(a) and (b), paragraphs 29(a) and (b), and section 39.

That is the exact list given in the instrument. Nothing in the text suggests that other WHS Act provisions are disapplied. So if your organisation is assessing legal risk, the starting point is not to ask whether the WHS Act generally applies. The starting point is to ask whether the activity falls within section 5(2) or 5(3), and then to check whether the issue you are dealing with is one of the specific WHS Act provisions named in section 5(1).

The instrument itself does not reproduce the wording of those WHS Act provisions. Before changing any policy, training material, incident process or worker communication, you should read those provisions in the Act itself and confirm how they interact with the activity in question.

The instrument is framed around activities, not around broad categories of employers or industries. A private contractor may be affected if it is participating in the specified activities under Operation Sovereign Borders. That could include marine support providers, transport operators, logistics contractors or employers with embedded personnel, but only where the actual work matches the wording of the declaration.

The text does not say that every contractor on a Commonwealth project is covered. It also does not say that all maritime or security work is covered. Coverage depends on the activity itself.

Most businesses will be outside scope. If your business operates in retail, hospitality, software, construction, professional services, ordinary transport or general government procurement, this declaration is unlikely to have any direct effect unless your work is tied to the specific Operation Sovereign Borders activities described in the instrument.

If your organisation works in or around Commonwealth maritime operations, the practical trigger points are usually found in contracts, tasking documents and operational instructions. If a statement of work, deployment brief or operational order says personnel will assist with interception, boarding, control or movement of a vessel under Operation Sovereign Borders, that should trigger a legal and WHS review.

The same applies if workers are tasked with controlling or moving persons at sea in the circumstances described by the instrument. The legal question is not whether the work is sensitive, maritime or government-directed. The legal question is whether the exact activity falls within the declaration.

Another trigger point is when your WHS team is preparing induction materials, consultation processes, incident reporting pathways or worker notices. Because the declaration only affects specified provisions and only for specified activities, blanket statements such as 'the WHS Act does not apply on this operation' would go beyond the text of the instrument.

The instrument defines an illegal maritime arrival as either an unauthorised maritime arrival, or a person who would be an unauthorised maritime arrival if the person enters Australia. It also says that unauthorised maritime arrival has the same meaning as in the Migration Act 1958.

For vessels, the declared activity is the interception, boarding, control or movement, under Operation Sovereign Borders, of a vessel suspected of carrying an illegal maritime arrival. But that is not enough on its own. The activity must also be part of deciding whether to move the vessel to a place outside Australia, or moving the vessel to a place outside Australia.

For persons, the declared activity is the control or movement at sea, under Operation Sovereign Borders, of a person suspected of being an illegal maritime arrival. Again, that is not enough on its own. The activity must be part of deciding whether to move the person to a place outside Australia, moving the person to a place outside Australia, or moving the person to or from a vessel in the course of those activities.

This means scope turns on several cumulative elements. You need the right operation, the right subject matter, and the right purpose or connection to movement outside Australia.

The instrument contains an important express exclusion. It says that the transfer or movement of a person suspected of being an illegal maritime arrival to an offshore regional processing centre is not part of an activity described in section 5(2) or 5(3).

That matters because it prevents an over-broad reading of the declaration. Even if a business is involved in Operation Sovereign Borders work and even if the work concerns a person suspected of being an illegal maritime arrival, the instrument itself says that transfer or movement to an offshore regional processing centre is outside the declared activities.

If your work touches that area, you should treat it as a separate legal question rather than assuming the declaration applies.

This instrument does not read like a standard business law that creates a fresh list of positive compliance duties. Its practical effect is narrower. It changes the application of certain WHS Act provisions for certain activities. So the main compliance task for an affected organisation is to interpret scope carefully and document its reasoning.

The biggest risk is scope error. A contractor may assume that because work is maritime, security-related or done for the Commonwealth, the declaration applies. The text is narrower than that. Another risk is over-correcting internal systems by removing WHS processes more broadly than the instrument allows.

A careful business response usually involves checking the exact activity, checking the exact WHS Act provisions named, and keeping records of why a particular compliance position was taken. If the activity falls outside the declaration, ordinary WHS assumptions may still apply.

For an affected operator, the most useful exercise is a document and process review. Start with the contract chain and operational authority. The instrument is tied to activities under Operation Sovereign Borders, so your records should show whether the work is actually being done under that operation.

Then review operational briefs, role descriptions, marine procedures, transfer procedures, incident escalation pathways and worker communications. Compare those documents with your existing WHS framework. If your business has standard consultation, instruction or reporting processes built around the WHS Act, do not remove them automatically. The declaration only affects specified provisions in relation to specified activities.

Managers should also be careful in verbal directions and written communications. Broad statements about WHS not applying can create confusion and may not reflect the instrument's actual scope.

The instrument is named the Work Health and Safety (Operation Sovereign Borders) Declaration 2024. It is dated 28 March 2024. The Federal Register entry shows it as registered on 28 March 2024 and in force.

The instrument says it commences on the day after registration. Before relying on it for a live operational decision, businesses should still check the current register entry to confirm status, commencement and whether any later amendment, repeal or replacement has occurred.

The instrument also repeals the earlier Work Health and Safety (Operation Sovereign Borders) Declaration 2013. That helps streamline the current position, but users should rely on the current register version rather than older internal precedents or archived copies.

For most businesses, the right reading is straightforward. This is a specialised Commonwealth instrument with little or no direct effect on ordinary commercial operations. There is no reason for a typical SME to change its workplace safety documents simply because this declaration exists.

For businesses working with the Commonwealth in maritime border operations, the instrument is a reminder that special-purpose legal carve-outs can be tightly drafted. If your team is asked to rely on one, slow down and verify the legal basis. Check the operation, the activity, the purpose of the activity, the exact WHS Act provisions named, and the express exclusion for offshore regional processing centre transfers.

If any of those elements are unclear, do not assume coverage. The safest approach is a precise activity review against the text of the instrument and the WHS Act itself.