Committee
Resumed from 17 September. The Chair of Committees (Hon Simon O’Brien) in the chair; Hon Alannah MacTiernan (Minister for Regional Development) in charge of the bill.
Comments and speeches by various members
Hon ALANNAH MacTIERNAN: I move —
Page 35, line 12 — To insert after “of” — , or serious harm to,
Comments and speeches by various members
Hon ALISON XAMON: I indicate that the Greens will most certainly support this amendment for a number of reasons, not the least of which is that it brings it completely in line with my bill that I brought to this chamber— the Criminal Code Amendment (Industrial Manslaughter) Bill 2017. I note that this bill now reflects the original intent that I brought to this chamber.
Hon NICK GOIRAN: Did the honourable member’s provision not want to be housed in the Criminal Code?
Hon Alison Xamon: Yes. That was the intent of my bill, but the definition is the same.
Comments and speeches by various members
Amendment put and passed.
Comments and speeches by various members
Committee Resumed
The DEPUTY CHAIR: Members, noting the time, it is time to take questions, so I ask that the advisers leave the chamber so we can move into question time.
Committee interrupted, pursuant to standing orders.
Committee
Resumed from an earlier stage of the sitting. The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Alannah MacTiernan (Minister for Regional Development) in charge of the bill.
Comments and speeches by various members
Hon RICK MAZZA: This clause is one that I have some concerns with. Now we are clear that we are dealing with clause 31 as it appears in the bill, it gives me a little more scope about what we are dealing with. I am concerned that there is no mention of negligence in clause 31. A person will simply have to fail to comply with a duty, so the test to me is quite low. As has been pointed out, in the forty-third report of the Standing Committee on Legislation, finding 19 and finding 22, which were referred to by Hon Nick Goiran, basically say that this clause is not consistent with clause 31 of the model bill or the Boland recommendation. In fact, finding 22 basically says that clause 31 of the Work Health and Safety Bill 2019 does not incorporate the subjective test of recklessness found in clause 31 of the model bill. The model bill requires recklessness as a test. There is a failure of duty test in this bill, which is a very low test. Because I was not sure which version of clause 31 we would be dealing with today—whether it would be the one in the bill, which we are dealing with, or the one on the supplementary notice paper—I did not prepare an amendment for the SNP, so I will have to do one from the floor. I move —
Page 38, after line 14 — To insert —
(5) For the purposes of subsections (1) and (2), a person’s failure to comply with a duty must be in circumstances of gross negligence.
Comments and speeches by various members
Hon ALISON XAMON: I rise to indicate that I absolutely will not be supporting the amendment proposed by Hon Rick Mazza. I have a very different idea from what other people have said “gross negligence” means. The key problem here is the inclusion of “gross” in front of “negligence”. Gross negligence, as identified by Hon Nick Goiran, is a term of law that is clearly defined within case law. I have a really clear understanding about what “gross negligence” incorporates. It is a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party. By definition, as defined in case law, members have just talked about a standard that has to be met that is the equivalent of clause 30A. The irony of this is that I would have thought that those members who are particularly concerned about harsh penalties for people who engage in terrible acts of recklessness that result in people dying would be opposed to clause 30A. I would have thought that people would have been opposed to that clause. I am concerned that including this amendment as it is written now will effectively turn clause 31 into something akin to clause 30A, which means we will lose that staggered range of penalties we were seeking to have within this bill.
We know the current penalties are inadequate. I think everybody agrees with that. I have not heard anyone in this chamber say otherwise. That has been understood through multiple inquiries. We have seen that through things such as the $38 000 penalty for the death of Wes Ballantine. We know that the penalties at the moment are woefully inadequate. We know that it is already too difficult to ensure that we have penalties that are remotely commensurate to the level of negligence and disregard that has occurred on worksites. But including “gross negligence” in the way that it is proposed in the amendment will make clause 31 completely unworkable. Suddenly, we will have removed the capacity of a whole suite of people who would probably be far more likely to be made accountable for their conduct than they ever would be under clause 30A effectively exempt from any penalties whatsoever. That is going to be the effect of this amendment. There is no way in good conscience that I could ever support doing that. I think it is absolutely critical that if people are making business decisions with a wilful disregard and they are prepared to demonstrate gross negligence towards their workers, the penalty needs to be commensurate. The member’s amendment puts in something that is absolutely inadequate. I will not move an amendment; I would like the clause to stand as it is now. We are talking about “gross negligence” as opposed to “negligence”. The member has put in his amendment a standard that would make this clause completely unworkable and would result in serious injustices. Again, I remind members that gross negligence, as defined in case law, is a conscious, voluntary act or omission in reckless disregard of the legal duty and of the consequences to another party. It is a really high standard.
Comments and speeches by various members
Hon ALISON XAMON: I want to pare this back to exactly where it fits within the clauses that immediately follow clause 31. Members need to bear in mind that clauses 31, 32 and 33 are meant to be read together. As has just been said, it is about the failure to comply with a health and safety duty. After reading clauses 32 and 33, they are— this is the language I would use—there but for the grace of God go I provisions in which we talk about a health and safety duty having been breached. In one instance, it simply identifies that a breach has occurred, which is in category 3. Category 2 states that the failure exposes an individual to a risk of death or of injury or harm to the individual’s health. In both those instances, the penalties will apply because a duty has been breached, but there but for the grace of God the worker or whoever else has been exposed is actually okay.
The reason why there are tougher penalties in category 1 is that we are still talking about a breach of health and safety, but in this instance the failure has caused serious harm to or the death of an individual. It defies belief that, although this is all about breaches of duty, when the worst possible outcome occurs—that is, someone has been either killed or seriously injured—we would suddenly make it harder than ever to prosecute someone for that breach of duty. It defies belief, because when we are talking about gross negligence, it is an extremely high test, as I have said. When the worst possible outcome occurs as a result of a breach of duty and that person has not been able to escape death or serious injury, why would we suddenly make it almost impossible to penalise the person responsible for having committed that breach? As I keep saying, the way that “gross negligence” is defined in case law makes it quite clear that the standard of proof is intended to replicate what we have in clause 30A, which is also why, interestingly, it is equivalent to the industrial manslaughter laws in the Australian Capital Territory, Victoria, the Northern Territory and Queensland, as was picked up by the Standing Committee on Legislation. People can have arguments about whether they think that it is likely that clause 30A will have an effect if they think that it is ever likely to be able to be prosecuted. That is certainly a valid debate to have about clause 30A. As someone who has been pushing for industrial manslaughter provisions, albeit in the Criminal Code, for more than a decade, I hear that it will be impossible to prosecute and then I hear in the next breath that all these innocent people are apparently going to go prison. People will have to figure out where they stand on that. I think that the worst of the worst will go to prison and I do not feel any sadness about that. Let us have that debate then. But clauses 31, 32 and 33 are meant to be read as a continuum as to the effect of a breach of duty of care, and if someone is killed or seriously harmed as a result of a failure of that duty of care, it does not make sense to make it virtually impossible to pursue the prosecution of their employer, especially when employers can be prosecuted for a breach of duty of care when people have been spared, by the grace of God, from injury or death.
Comments and speeches by various members
Hon ALANNAH MacTIERNAN: We have captured the Boland provisions in clause 30A. We are not going to debate this any longer. The member can debate it for as long as he likes. We have made our position very, very clear. The important thing is to get on and make a decision.
Division
Amendment put and a division taken, the Deputy Chair (Hon Matthew Swinbourn) casting his vote with the noes, with the following result —
Ayes (11)
Noes (18)
Amendment thus negatived.
Comments and speeches by various members
Progress reported and leave granted to sit again, pursuant to standing orders.