Australia is a federation of six States and two Territories. The individual States and Territories have responsibility for making laws and for enforcing laws relevant to most day-to-day activities including workplace health and safety. The Commonwealth Government has responsibility for federal law which are matters of general concern to all of the States and Territories, such as interstate trade and commerce, defence, immigration, etc. These laws are laid out in various Acts and Regulations.
Occupational diving is regulated independently by each of the state workplace health and safety authorities. It is vital to recognise that the Acts and Regulations applicable to diving may be different in every State and Territory and different again for offshore diving, which comes under Commonwealth Government Acts and Regulations. This highlights the challenge in locating and being familiar with all legislation applicable to diving, particularly if working in a variety of locations. Some states for instance specifically require ADAS certification as a condition to undertake occupational construction diving (e.g. NSW, Qld) and the rest require ADAS certification by calling up AS/NZS 2299.1. All states and territories reference AS/NZS 2299.1 as the basis for undertaking occupational diving.
In the past, the Commonwealth and each state and territory developed and enforced their own work health and safety (WHS) laws which led to confusion about which states/territories and what type of work necessitated the need to have an ADAS certification. A move away from state-based WHS regulation to a set of nationally harmonised regulations was initiated by Council of Australian Governments (COAG) and came into effect in January 2012.
These harmonised regulations are known as the Model Work Health and Safety Regulations and provide regulatory consistency in all areas of WHS. Part 4.8 of the WHS Regulations are specific to diving work. The Model WHS Regulations have been adopted by most states with Western Australia and Victoria currently opting out of the harmonised regulations and will continue to operate under their specific state-based legislation and regulations for the time being.
Western Australia intends to adopt the model WHS laws but with some amendments to the Act. The Victorian Government has decided not sign up to the current proposal for harmonised legislation for occupational health and safety, although they remain committed to harmonisation. The Victorian Government may reconsider its position once the harmonised laws have been reviewed. Meanwhile the current OHS Act 2004 continues to apply in Victoria.
Regulation of onshore diving is governed by the state and territory WHS authorities, for example, WorkCover NSW, SafeWork SA etc. Additionally, there is a National Compliance and Enforcement Policy which has been developed to provide information and guidance to regulators about the enforcement of the Model WHS Regulations.
New Zealand has adopted ADAS as the basis for certifying divers in NZ. Information on the arrangements for occupational diving in NZ are to be found in the Department of Labour Guidelines for Occupational Diving 2004.
ADAS certification is a mandatory requirement for all persons wishing to work as divers in the Australian offshore petroleum and minerals mining industries.
The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA) is a Commonwealth Government Act, jointly administered by the Commonwealth Government and the relevant adjacent State/Territory Government and applied in adjacent State/Territory waters through mirror legislation enacted by the State/Territory government.
The OPGGSA addresses all licensing, health, safety, environmental and royalty issues for offshore petroleum exploration and development operations beyond 3 nautical miles from the coast.
For offshore oil and gas diving operations, the Offshore Petroleum (Safety) Regulations 2009 apply to all Australian waters outside of the three nautical mile line (except for islands or reef systems regarded as State or Territory land). These goal setting regulations are underpinned and further defined by the Guidelines for Complying with the PSLA 2005.
The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), a Joint Authority, comprising the State Minister for Energy and Resources and the Commonwealth Minister for Energy, Resources and Tourism, is responsible for administration of the OPGGSA. The State Minister acts as a Designated Authority, and administers activities in Commonwealth Waters on behalf of the Joint Authority. Major decisions (e.g. the award of permits) ultimately rest with the Joint Authority but the Designated Authority can approve most operations without reference to the Joint Authority.
The State and Territorial Petroleum (Submerged Lands) Acts and associated Regulations apply from the Territorial Sea Boundary seaward for a distance of three nautical miles. The State and Territorial Acts also apply for islands or reef systems regarded as State or Territory land. Go to the NOPSEMA website for links to these Acts and Regulations.
General information on workplace health and safety can be obtained from the Australian national agency Safework Australia.
A good general overview of Australian WHS practice in Australia can be found in the WHS/OHS Acts, Regulations and Codes of Practice document issued by bussiness.gov.au.
A similar source of information for WHS in New Zealand can be found on the Worksafe New Zealand website.
State/Territory Specific Information
Duty of Care
The Model Work Health and Safety Regulations set out requirements for ensuring that workplaces are safe and healthy. These requirements spell out the duties of different groups of people who play a role in workplace health and safety. These requirements are known as the Duty of Care.
Duty of care requires everything ‘reasonably practicable’ to be done to protect the health and safety of others at the workplace. This duty is placed on:
Specific rights and duties logically flow from the duty of care. These include:
These are representative of the employer’s specific duties in all Australian States and Territories.
“Reasonably Practicable” is an objective test; that is, a duty holder is to be judged by the standard of behaviour expected of a reasonable person in the duty-holder’s position who is required to comply with the same duty and is:
It is your responsibility to abide by all relevant acts and regulations in carrying out diving operations. You need to ensure that you (and/or your employer) are aware of applicable legislation and ensure that it is accurate and up-to-date.
As an employee, you have specific personal duty of care responsibilities under Australian law. An employee must:
As an employee, if you don’t do these things, you can be disciplined by your employer under your industrial award or enterprise agreement, or you could be prosecuted under the health and safety law in your State or Territory.
As well as employers and employees, other people who have workplace health and safety responsibilities include people who sell materials and equipment, or who provide services to a workplace (e.g. maintenance, repairs, cleaning, building and construction). They must ensure that the goods they design, make, supply, install, maintain or repair will not cause injury or damage the health of people in workplaces.
A standard is a set of guidelines developed and endorsed by Standards Australia for guidance to industry.
A code of practice is an industry guideline, which may be developed by an industry association or similar body.
An Approved Code of Practice (e.g. the South Australian Approved Code of Practice for Tuna Farm Diving) adopted under an Act outlines practical ways of complying with workplace health and safety laws. While an approved code of practice doesn’t have the same status as law, that is, you don’t have to follow what it says and you can actually decide to meet your obligations another way, it provides practical guidance on how to control risk.
While you don’t have to comply with a code of practice, you may be required (in the case of a workplace accident, for example) to show that the risk management system you have chosen to use achieves the same or a better safety outcome than if you had followed the approved code of practice.
However, if you do follow an approved code of practice, you can be confident that you will achieve the minimum standards required to meet your obligations under the specific OHS requirements.
Note that it is also not legally binding to comply with a given standard except where it is specifically required by legislation. For example, AS/NZS 2299.1 is called up in most state OHS regulations and the provisions of the Standard are then applied as law. Compliance with a standard or code of practice may, however, be a requirement of a contract for a specific diving operation, even where not required by legislation.
You should also realise that even when not called up in law, a court or coroner will almost certainly refer to and take note of the provisions of a relevant Standard as detailing the measures expected of a responsible person in undertaking that activity.
A list of some of the acts and regulations which may be applicable to divers and/or a diving operation is given later in this document. This list is a guideline only and may not be complete or up-to-date and may not show the latest revision of an act or regulation. It is the responsibility of the individual to ensure that they are using the latest revision of the applicable standard or code of practice.
2299.1 specifies requirements for personnel, equipment and procedures used in occupational underwater operations in up to 50 m depth of water using compressed air or similar oxygen-nitrogen mixtures as the breathing medium. It also gives details on compression chamber support, accident reporting and medical requirements for occupational diving operations. Appendices include a suggested content of a diving contractor’s diving operations manual, metric and imperial decompression tables (with procedures for their use), guidance on the treatment of decompression illness and guidance for medical practitioners conducting diving medicals.
The AS 2815 series details the competency and training requirements to achieve certification as an occupational diver and supervisor and the scope covers diving from scuba through to saturation diving and diving supervision for onshore diving.
A complete list of Australian Standards and the latest revision can be obtained from Standards Australia or from SAI Global. Codes of practice are available from the applicable industrial body (e.g. the International Marine Contractors Association website).