Inquiry urged to consider whether WorkSafe notice on Legislative Assembly hearings was illegal

WorkSafe ACT has also been accused of "fear mongering" by a witness who was due to appear before ACT budget estimates last month.

The Office of Legislative Assembly has questioned if the issuing of the notice by the watchdog failed to comply with the Work Health and Safety Act.

Speaker Joy Burch was issued with a prohibition notice in August over committee hearings to be held at the Legislative Assembly.

But acting clerk of the Legislative Assembly Julia Agostino, in a submission to a parliamentary inquiry, said the Work Health and Safety Act stated an inspector was able to issue a notice to "a person who has control over the activity".

Ms Burch does not have control over budget estimates. The select committee on estimates for 2022-23, led by chair James Milligan, was responsible for how the hearings were conducted.

Budget estimate hearings at the Legislative Assembly were forced to come to a halt last month after WorkSafe ACT issued a prohibition notice on the hearings about the lack of a COVID risk assessment.

This was despite the fact the Assembly had already had an existing COVID safety plan in place and had so for the past two years.

The issuing of the notice sparked a constitutional dispute over the separation of powers. An ACT Legislative Assembly select committee is investigating whether the issuing of the notice amounted to a possible contempt of the Assembly.

The Office of Legislative Assembly said, in its submission, there was "every likelihood" that it was "beyond power" of the work health and safety commissioner or a WorkSafe inspector to stop the proceeding of an Assembly committee. Although, the submission said this would need to be tested in a court.

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The submission set out the privileges enjoyed by parliaments in the Westminster tradition, primarily, that parliaments can carry out functions unhindered.

"While the privileges of parliaments are sometimes conceived as being exceptions to the normal operation of law ... they are not a wholesale immunity from the law," the submission said.

"On this, it is critical to state upfront that there has never been any suggestion that the Workplace Health and Safety Act 2011 does not apply to MLAs, the office or their staff.

"However, neither does the WHS Act operate in such a way as to cast aside the powers, privileges or immunities of the Assembly, its committees, or its members."

The Office of the Legislative Assembly has also asked the committee to consider whether more work was needed to educate ACT's public servants about the separation of powers.

In order for the prohibition notice to be lifted, the committee had to consult witnesses, including minsters and statutory office holders, about the arrangements for the hearings and provide the risk assessment.

These communications were submitted to the inquiry and while most responses were fairly subdued, one person was scathing of the watchdog's intervention.

The ACT inspector of correctional services Neil McAllister said he had "major concerns" about the intervention of WorkSafe ACT.

"I have attended a number of estimates and annual report hearings and do not consider that the hearings room of adjacent waiting areas pose any greater risk than other place where people gather (offices, shops, restaurants, bars, clubs, etc.)," Mr McAllister said.

"I visit a major hospital regularly and I can enter without vaccination proof (which I have) and am only required to wear a mask indoors.

"I would have been very happy to appear in-person this week regardless of WorkSafe ACT's fear mongering."

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