Occupational Health and Safety Amendment (Workplace Deaths) Bill
Page: 16444
Second Reading
Debate resumed from 27 May 2005.
Mr CHRIS HARTCHER (Gosford) [3.43 p.m.]: The bill has a long history that involves the blockade outside this Parliament in 2000 when the workers compensation legislation was passed, and the subsequent internal ruckus within the Australian Labor Party. The Government forced the trade union movement to accept its amendments to tort and workers compensation law and was anxious to hold out an olive branch, especially to its principal critic in the trade union movement, the Construction, Forestry, Mining and Energy Union [CFMEU]. Consequently, the Government began negotiations with the CFMEU to try to satisfy some of the demands of that left-wing union. In turn the CFMEU mounted a campaign for the creation of an offence of industrial manslaughter, which, to an extent, was successful in the Australian Capital Territory when the legislation sought by that left-wing union was introduced.
The New South Wales Government resisted the creation of a statutory offence of industrial manslaughter, and instead made submissions to a parliamentary inquiry established by the Legislative Council to investigate workplace deaths. When the Government and, more importantly, the union were dissatisfied with the recommendations of the inquiry, the Government set up its own committee to investigate workplace deaths, again a concession to the CFMEU. The group of people constituted to conduct the inquiry, the so-called "eminent persons", included such illuminati as a former staffer to the former Labor Minister for Industrial Relations, Jeff Shaw. The committee produced a flawed report and made extremely unsatisfactory recommendations. However, the Government seized upon the recommendations and, again pressured by the CFMEU, in 2004 introduced as an exposure draft bill the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004.
In October 2004 the Minister for Industrial Relations, Mr Della Bosca, introduced the 2004 bill in the Legislative Council and tabled it as an exposure draft bill. The proposed legislation was so extraordinary that it aroused enormous indignation throughout the community, which resulted in the development of a strong campaign led by the Leader of the State Coalition, John Brogden, and supported by organisations such as New South Wales Farmers, Australian Business Ltd, Employers First and a host of other industry organisations. When industry groups saw the legislation they flooded the Government and the Opposition with objections. It is salient to recall the Government's proposal in the legislation. By including the principles set out in the Occupational Health and Safety Act the bill created an offence of absolute liability. Section 8 of the Occupational Health and Safety Act, which was included in the 2004 bill, obliged the employer to ensure the safety of all those in the workplace, be they employees or visitors. The employer had no defence, other than the general defences set out in section 28 of the original Act.
The onus of proof was thus transferred from the Crown or the prosecutor, whoever it might be, to the employer. Once a workplace fatality had occurred the employer was obliged to show that he had taken all possible steps to avert it. This was contrary to the established principles of common law and justice, under which the accused person is entitled to a presumption of innocence until proven guilty before a court. The inclusion of this principle aroused strong resentment within the community and resulted in vigorous attack upon the bill. Further, the bill did not allow for any defence that an employee of the employer was negligent or careless, or that the employee had breached instructions. Therefore, the employer was strictly liable for the actions of the employee, even if the employee had failed to act as directed by the employer. An example is a truck driver ignoring instructions from an employer to obey traffic laws. If the truck driver were killed in an accident, the employer would be liable under the proposed legislation because a truck has been held to be a workplace and the employer could not prove that he had taken every possible measure to avert the tragic death.
The Construction, Forestry, Mining and Energy Union ran a highly emotive campaign across the State, focusing on a number of accidents, which tragically had caused death, especially in the building industry. The CFMEU attempted to use the sadness of family loss as a way of exemplifying its demand for the legislation to be introduced. The CFMEU's campaign, more than an attempt to develop a safe working system in New South Wales for employees, was really an attempt to force the union's will upon the Government and show its members that it had influence over the Government.
The 2004 bill provided for aggravating factors to increase penalties that were set out in the bill, but it did not allow for mitigating factors. The Government argued that mitigating factors were already allowed for, but what type of extraordinary legislation creates a new offence, denies the presumption of innocence, and sets out aggravating factors to increase the penalties that are provided by law? The bill allowed for a person to be imprisoned for up to five years without a trial by a jury. There was to be no indictment presented in the traditional sense before a court constituted by a judge and jury, but action was to be brought and maintained in the Industrial Relations Commission. That is contrary to the established principles of justice under which a person who is liable to a period of imprisonment normally is allowed to exercise their rights to be tried by indictment and to have their case determined by a judge and a jury of their peers.
The original legislation that was brought across to this bill also allowed for a trade union to bring the prosecution. The incentive for trade unions to bring prosecutions was the enormous fines provided by the bill. The fines consisted of 15,000 penalty points for a corporation, or $1,650,000. These extraordinary fines were a straight-out incentive to left-wing unions, such as the CFMEU, to engage in bounty hunting. It encouraged unions to use the threat of prosecution as an industrial device against employers. The bill was designed to enable unions, particularly left-wing unions, to simply use legislation as a battering ram against an employer; not to achieve industrial safety or workplace safety but to achieve the aims and objectives of the union. Under the original legislation, the union is entitled to a moiety, which is 50 per cent of a fine.
By allowing a trade union, as a registered industrial organisation and an interested party, to bring a prosecution, the bill denied to an accused person the right to have an independent prosecutor. One of the fundamental principles of our system of justice concerning people who are liable to heavy penalties such as fines or imprisonment is that normally they have an independent prosecutor. In courts of summary jurisdiction, the prosecutor is the police, and on indictable matters, the prosecutor is an officer of the Director of Public Prosecutions. No such independent prosecutor was allowed under the 2004 legislation when interested parties—exclusively, in these cases, registered industrial organisations or trade unions, particularly left-wing trade unions, because employer organisations do not exercise such powers—were allowed to bring prosecutions.
The 2004 legislation allowed appeals to be lodged only against prison terms and did not allow appeals to be lodged against fines. That represented an extraordinary denial of fundamental rights because even the most insignificant traffic fine in the Local Court can be the subject of an appeal to the District Court. Yet in respect of the 2004 legislation, we were witness to enormous fines, prosecutions being brought by interested parties, the onus of proof being effectively reversed, trial by jury being denied, and enormous fines not being subject to the right of appeal. The only appeal allowed under the 2004 legislation was against a sentence of imprisonment.
This legislation was rightly described as draconian by business and by he Leader of the Opposition. It attracted criticism of the Government on the grounds of the denial of fundamental rights and, significantly, because the Government admitted that the legislation was unnecessary and unjustified. The Government's admission came in a statement made by the Minister for Industrial Relations in answer to a prearranged question asked by the Hon. Peter Primrose in the Legislative Council on 22 March 2005. The Minister was asked about workplace fatality figures in New South Wales, and he stated:
I advise the House that work-related fatalities and employment injury rates have dropped to their lowest levels in 15 years. WorkCover's latest statistical bulletin shows there were 136 work-related deaths in 2002-03 and 51,000 injuries. It is tragic and regrettable that anyone should be killed or injured while earning their living, but the trend is down, and fewer people are dying or being injured in New South Wales workplaces. The figures are 10.8 injuries per million hours worked and 18.5 injuries per 1,000 employees—the lowest levels since the current workers compensation scheme started in 1987.
Despite the fact that workplace fatalities and injuries were the lowest since 1987, the Government suddenly believes that this legislation, providing draconian penalties, was somehow justified. The Minister went on to state:
The 2002-03 statistical bulletin reports a significant reduction in the number and cost of injuries over the previous year. In particular, compensable fatalities were down 23 per cent. Fatal injuries occurring at the workplace were down almost 33 per cent. Fatalities resulting from occupational diseases were down more than 22 per cent. All injuries occurring at the workplace were down 7 per cent and the average cost of a workers compensation claim was down almost 13 per cent.
The figures are a clear indication that New South Wales employers—
Let me repeat that—
The figures are a clear indication that New South Wales employers and employees are making strong progress towards the Government's target of reducing workplace injury and illness by 20 per cent and fatalities by 10 per cent by 2007. These latest figures are extremely encouraging …
What could be a more clear-cut indictment of the Government's legislation than the fact that the Minister admits that there was no need for it, when the Minister says that there is an ongoing downward spiral in the number of workplace fatalities and in the number of workplace injuries, and when the Minister congratulates employers and employees on making "strong progress"? Clearly, the Government has admitted that there was no justification for this legislation in an industrial sense. The Government has never been prepared to admit that it was doing a deal with the union movement, especially the CFMEU, to placate it .. One must ask why this legislation is being put before the Parliament and rushed through. Why have standing orders been suspended?
The reason is that next weekend, at the Australian Labor Party's annual conference, speeches will be made by the Premier and he will want to be able to tell the annual conference that the Government has placed on record, through legislation, tough workplace fatality bills, and that the Government has satisfied the demands of sections of the trade union movement and is responsive to the trade union movement. That is why this legislation has been urgently brought before the House—so that the Premier has something to tell the Australian Labor Party annual conference when he addresses it this weekend.
The Government has varied the normal order of procedure in this House by suspending the standing orders for this afternoon and denying the usual process for an urgency motion or for a matter of public importance. The Government has denied members the right to make a private member's statement. Why? The Government has brought on this legislation to be dealt with straightaway so it can be passed through the Legislative Assembly and, presumably, the Legislative Council and be finished by the time the Premier stands up before the annual conference of the Australian Labor Party on the Queen's Birthday long weekend and states, "We have delivered to the trade union movement."
This legislation is not required for industrial purposes; it is required for the personal agenda of the Premier and his Ministers. This State already has the Occupational Health and Safety Act, which makes a breach of the occupational health and safety regulations an offence and imposes penalties for that breach. There is already a law against conduct by an employer that causes the death of, or injury to, an employee. What justification is there for increasing penalties? None. What argument has been made that the courts have not imposed adequate penalties? None. The Minister for Industrial Relations did not address that point in his second reading speech and there has never been any acknowledgment by him that the penalties are inadequate. The Government's only argument is that it must satisfy the concerns of the union movement.
In addition to the Occupational Health and Safety Act, this State has the Crimes Act, which creates the offence of manslaughter. Any reckless conduct causing death could satisfy the elements of the crime manslaughter, and penalties up to 25 years imprisonment may be imposed upon conviction for that crime. The Crimes Act also provides that any person who, by an act of negligence, causes the death of any other person is liable for up to two years imprisonment. In this State there is already a strong legislative framework that would punish any employer whose reckless or negligent conduct caused the death of any other person, including an employee or a visitor. It should be borne in mind always that section 8 of the Occupational Health and Safety Act extends the liabilities of an employer to anyone at the workplace, not just an employee.
Why is this legislation necessary when the Crimes Act already contains those two strong sections? The problem with the Crimes Act, from the Government's point of view, is that it allows trial by jury. The Crimes Act requires that the prosecution be brought in a court, before a judge and before a jury, and that the prosecution proceed by way of indictment. The Crimes Act further requires that proceedings be instituted by the Director of Public Prosecutions, an independent prosecutor. A trade union would not institute proceedings because, once commenced, they could be taken over at any time by the Director of Public Prosecutions. Under the Crimes Act there is a judge, a jury, an indictment, an independent prosecutor and, of course, the full rules of evidence, under which everyone is presumed innocent until proven guilty. Further, the Act provides full rights of appeal against a fine or a sentence of imprisonment.
The common law protects people who are charged with a crime and whose liberty or money may be forfeited to the State. The Government is not interested in prosecutions under the Crimes Act. The Government wants a judicial system that would deny fundamental rights to employers, deny the right of trial by jury, deny the right of an independent prosecutor, and deny the right to have an indictment. In lieu of those rights the Government wants to open up a system under which prosecutions may be launched by interested parties such as trade unions. The Government—having introduced the 2004 legislation with no reason to do so industrially due to the decline in deaths and injuries, and with no reason to do so legislatively as its provisions are already covered by the Occupational Health and Safety Act and the Crimes Act—withdrew that legislation.
The only reason for the introduction of the bill is to satisfy the Premier's desire to be able to make a statement to the annual conference of the Australian Labor Party this weekend. The Government has acknowledged that the 2004 legislation was unworkable. The Government acknowledged that in the most disingenuous way by stating on a web site that the legislation would not be proceeded with. Initially the Minister for Industrial Relations, Mr John Della Bosca, did not issue a press release, but on 13 April Minister Della Bosca released an online statement to the Public Service Association stating:
It has now become clear that the draft consultation bill does not satisfy some of the tests that have been set by the Government and will not be introduced in its current form.
The Government backed off, but did so under the table by issuing an online statement to the Public Service Association. When the Opposition exposed that statement, the Minister acknowledged that the legislation was not proceeding and said he would introduce new legislation, the 2005 legislation. What is wrong with the 2005 legislation? The Government said that the 2005 legislation is a marked improvement on the 2004 legislation and is a result of community and business concerns. Yet the 2005 legislation retains, however disguised, a number of the most objectionable features of the 2004 legislation. First, the bill allows prosecutions by WorkCover or by any other party with the Minister's consent. That is the deceit, because the Government can say that trade unions do not have a right to bring a prosecution, but they can bring a prosecution if the Minister consents.
That is the escape clause for the Government: ministerial consent to a prosecution. That is clearly acceptable to the trade union movement, especially its left wing, because it knows that the Minister will bow down to its demands if it wishes to bring a prosecution. The Minister will sanction that prosecution, and the trade unions need only get his signature on the consent and the prosecution can be launched. The Government has not abandoned the power of trade unions to bring a prosecution. The Government has simply put a procedural mechanism in the way, and that will be absolutely meaningless, given the nature of the Government's relationship to the trade union movement and the willingness of the Minister to bow down to the trade union movement. That is totally unacceptable.
Second, the legislation still maintains the power of the Industrial Relations Commission to hear charges for a breach of the Act and impose penalties of up to five years imprisonment. The Industrial Relations Commission is constituted as a body to determine industrial disputes. It has a proud history as one of the oldest courts in New South Wales. I acknowledge the words and integrity of its President, Justice Lance Wright, but it was not established to deal with criminal matters. It is not of itself a criminal court, even though it has dealt from time to time with offences against industrial relations laws.
It is not a court that is designed to work on the presumption of innocence and it is not a court that functions well in determining guilt or innocence in a criminal context. I believe that most judges in the Industrial Relations Commission would prefer criminal matters to be determined outside that court. After all, judges in the Industrial Relations Commission are overwhelmingly drawn from the industrial bar where its members have argued industrial rather than criminal cases. Notwithstanding that, the legislation still allows for prosecutions for the new offence created by the bill to be brought in the Industrial Relations Commission and for the imposition of a sentence of five years imprisonment. That is objectionable, just as the power of the Minister to bring a prosecution, or to sanction a trade union to bring a prosecution, is objectionable.
I foreshadow that the Opposition will move amendments in Committee to clause 4 and schedules 1 and 2. The Opposition also objects to the provisions in the legislation that allow for the imposition of enormous fines of 15,000 penalty points. Those exceptional fines go beyond the normal range of criminal penalties. Given the fact that the Crimes Act and the Occupational Health and Safety Act are already in place, there is no justification for such fines. No justification for those fines was advanced in the second reading speech. There is no differentiation between offences and there is no increased penalty for second or subsequent offences, but all offences carry the same penalties, that is, a term of imprisonment of up to five years and a monetary penalty of 15,000 penalty points, or 1,500 penalty points where an individual is involved.
Essentially the bill creates a new offence, that is, causing the death of a person in the workplace to whom the employer or others owe a duty to ensure his or her safety and where the person who causes the death is reckless as to the danger of death or serious injury to any person to whom a duty is owed. In a sense the legislation creates the offence of industrial manslaughter as it is workplace related, even though it can apply to the death of a person who is not an employee. That is one of the extraordinary features among the many extraordinary features of this legislation. Under section 8 of the principal Act a duty is owed to persons other than employees in the workplace. There could be situations such as that described by the managing director of the Commonwealth Bank. If a customer of a bank is tragically killed while a bank robbery is taking place the manager of the bank could be held liable by the combined operation of this bill and section 8 of the principal Act. I doubt whether that is a far-fetched proposition. Indeed, lawyers agree that that would be so.
The legislation does not simply catch employers; it catches any person who owes a duty of care to ensure the safety of other persons in the workplace. The legislation catches people all the way down the chain of responsibility from the team leader down to the site foreman and to the local manager. This legislation will not somehow simply penalise employers, however wrong we believe that to be; it will penalise any person who has any responsibility in the workplace. It will catch workers as well as managers. It will catch people who are unaware of what is happening in the workplace. It will catch managers who are in offices and boards of directors who are located in a head office and who are not familiar with what is happening in the workplace but who may well have approved protocols to ensure proper workplace safety. Notwithstanding that fact, they could be caught when these protocols are breached. Employers First, in expressing its opinion of the bill, states:
"Conduct" includes acts or omissions, and the conduct that causes the death need not take place at the workplace (for example, boardroom decisions). The acts or omissions included in "conduct" will inevitably be taken to include the failure to carry out risk management or to do it appropriately, and the failure to provide information instruction and training, etc.
By imposing a range of criminal liability the bill, which is far-reaching, will catch people who would not normally be caught. Employers First goes on to state:
The Bill is full of qualifying terms which lower the bar as to who might be convicted. It is drafted in a manner that will allow prosecutions to go well beyond those whom we might all agree are rogues/cowboys.
"substantially contributed"—For the conduct to be regarded as causing the death, the prosecution (and this may be a trade union) needs only prove that it "substantially" contributed to the death. "Substantially" is well recognised in the law as an imprecise and ambiguous term meaning anything between "not merely minimal" and "considerable, large or big".
The submission continues:
"or serious injury"—The less serious the potential injury, the easier it is for the prosecutor to prove recklessness. Even though the Bill is about workplace deaths, recklessness is not to be assessed just in relation to the risk of death but also the risk of serious injury.
This is a bill about workplace deaths, but recklessness can be proven if the act of negligence or a breach of occupational health and safety could merely have led to injury—in this case a so-called serious injury, although that is not defined. The Government has lowered the bar in a disingenuous fashion. The submission goes on to state:
"any person"—It is the danger of death or serious injury to any person, not explicitly the person who has died.
If the prosecution brings an action and establishes that there was a danger of death or serious injury to a person, that satisfies the requirements in the bill, even though the person to whom the danger was presented need not be the person who has died. The whole tenor of this bill remains objectionable. The Government might believe that it has satisfied the concerns of business organisations, but it has not satisfied the concerns of the Opposition or those in this State who believe in civil liberties. As I have already said, the right of appeal relates only to those who are sentenced to imprisonment, not to corporations or individuals upon whom huge fines can be imposed. I read out the summary of objections in the submission of Employers First:
o Absolute liability ...
o Compliance with regulations no defence in itself.
o Deemed guilt, reverse onus.
o No jury, no criminal law right not to self-incriminate.
o Costs of the prosecution routinely imposed on convicted employer.
o All prosecutions by summary trial, no jury.
o Aggravating factors apply at time of sentencing, not determination of guilt.
o Strategic grouping of key factors to compromise defendant.
o Previous offender convictions dates back to 1983, even including minor offences. These will be considered in the sentencing for a fatality.
At the very least the Government should agree to trial by jury and to an independent prosecutor. These are the amendments that the Opposition is seeking. Accordingly, the Opposition gives notice as follows. While we will not oppose the second reading of the bill in order to allow consideration of Opposition amendments in Committee, we will oppose its third reading if the Government does not accept our amendments. We will maintain that position in both the Legislative Assembly and the Legislative Council.
Everybody in this community—be they employer groups, employees or Opposition members—believes workplaces must be safe. Everybody believes people who act in a way that causes death or risk of injury must be brought to account. Everybody believes rogue employers should be prosecuted and punished for their offences. Everybody believes it is the responsibility of government, employers and employees alike to maintain safe workplaces. But this legislation will not improve workplace safety; it will not make a single workplace safer. All this legislation will do is impose massive penalties on employers while denying them their fundamental rights of appeal and to trial by jury.
The Carr Government has made an unholy deal with the trade union movement. If this legislation is passed by Parliament, the Premier will have the theme for his address to the annual conference of the Australian Labor Party this weekend. But it will come at a price. The price will be the imposition of unjustified and essentially unworkable laws on business in this State. The price will be the denial of fundamental civil rights to employers and to those whom they employ to maintain workplace safety, such as team leaders and foremen, all of whom will be caught by this legislation. Accordingly, I give notice that the Opposition regards this as flawed legislation. For the reasons that I have advanced, I believe this legislation is unnecessary. I conclude my brief remarks about this bill by quoting again the words of the Minister for Industrial Relations on 22 March this year, when he said:
The figures are a clear indication that New South Wales employers and employees are making strong progress towards the Government's target of reducing workplace injury and illness by 20 per cent and fatalities by 10 per cent ... These latest figures are extremely encouraging ...
The downward spiral of workplace fatalities continues and the Minister has said that the figures are "extremely encouraging". How, then, does the Government and the Minister justify this draconian legislation?
Ms ANGELA D'AMORE (Drummoyne) [4.22 p.m.]: I welcome this opportunity to speak in support of the Occupational Health and Safety Amendment (Workplace Deaths) Bill. While all workplace deaths are tragedies, those that result from recklessness or indifference are unforgivable and must be dealt with in the same manner as other serious criminal acts. This bill will ensure that an appropriate punishment is available to those who disregard the safety of others and cause a workplace death. I emphasise that point. The penalties available for this new offence of workplace death are certainly higher, but the Government will not make any apology for that. We are talking about people's lives.
For corporations, a breach under the new offence could lead to the imposition of a maximum penalty of $1.65 million. Individuals, including directors and managers, could face a maximum of five years gaol and/or a $165,000 fine. The scale of those penalties reflects the degree of culpability and criminality required in order to be found guilty of the new workplace offence. The community can be assured that if an individual or corporation is found guilty of this new workplace death offence the penalties available will correspond to the conduct of that corporation or individual. The courts can apply the full scope of the penalty in dealing with the most abhorrent acts of indifference to those in the workplace. This bill ensures that the punishment fits the crime.
While the bill provides for greater punishment for the more culpable offences, it also acknowledges that the scale of the penalty the defendant potentially faces requires that there are certain measures to protect the interests of the defendant to some degree in such proceedings. In this respect the bill balances, on the one hand, the interests of the community in seeing that justice is done and that appropriate penalties are applied and, on the other hand, the rights of defendants who are liable to substantial punishment. The bill addresses the interests of defendants in a number of ways. It provides the additional defence of reasonable excuse in relation to the new workplace death offence. Although what constitutes a reasonable excuse will generally depend on the facts of a particular case, the defence will be wider than that of lawful excuse. This additional defence will ensure that a court takes account of the inherent dangers and difficulties of particular types of work when considering the application of the new offence.
The bill will also allow, for the first time, a right of appeal from the Industrial Relations Commission in Court Session to the Court of Criminal Appeal. Although the commission is the appropriate jurisdiction to hear occupational health and safety matters and has a status equal to that of the Supreme Court, the defendant's right to appeal against the imposition of a term of imprisonment from the full bench of the Industrial Relations Commission in Court Session to the New South Wales Court of Criminal Appeal was considered appropriate in relation to the new offence. In providing for this additional level of appellate review, the bill allows the defendant every opportunity to make his or her case against being sentenced to a term of imprisonment.
The consequences for a defendant who is convicted of this new workplace death offence are serious—and rightly so. On the one hand, the bill provides for very high penalties for reckless offenders, but, on the other hand, it also accommodates the interests of the defendants involved in such proceedings. The bill ensures that those convicted of the new workplace death offence will be deserving of the punishment imposed by a sentencing court. The Government should be commended for its consultative approach to the bill, which is reflected in the balanced nature of its provisions. It is certainly not a bill that right-minded employers have to fear. However, rogues in the workplace will need to improve their safety practices. All workplaces and all those who work in them will be safer as a result of this bill. I commend the bill to the House.
Mr ANTHONY ROBERTS (Lane Cove) [4.26 p.m.]: It is with a great deal of regret that I speak to the Occupational Health and Safety Amendment (Workplace Deaths) Bill. It is an objectionable, flawed and unnecessary bill. The objects of the bill are to amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of that Act to engage in reckless conduct that causes death at a workplace, and to amend the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal where a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence.
In looking at the outline of the bill, I highlight a number of areas. The new offence of reckless conduct causing death will be created. Prosecutions will be conducted before the New South Wales Industrial Relations Commission. Statutory penalties will be imposed upon directors and managers found guilty of an offence, including fines of $165,000 and/or gaol terms of up to five years for a first offence and subsequent offences. Statutory penalties will be imposed upon corporations to the tune of $1.6 million for a first offence and for subsequent offences, and rights of appeal on convictions may be taken to the New South Wales Court of Criminal Appeal only when a gaol term is involved. A new defence of reasonable excuse will also be created. It is important to bring to the attention of the House the position of the Australian Mines and Metals Association on this bill. It opposes the bill for the following reasons:
Current criminal legislation dealing with the offence of 'manslaughter' already provides a remedy for employers (or other persons) whose acts of 'gross recklessness' cause deaths.
The association joins the Opposition in claiming that the bill is unnecessary and unwarranted. It also points out:
There is no entitlement for offenders to have their case heard by a jury (as is available for the same offence under Victorian OH&S manslaughter legislation) ... The 'place' where an offence can occur extends to 'any place of work'. This means that employers can be liable for a death that occurs in a place of work other than the employer's own workplace.
The association continues:
Members of the NSW Industrial Relations Commission are not criminal judges, nor do they have any background, training or experience in conducting criminal trials or trials that lead to incarceration.
It goes on to say:
Under the Bill, the test for an offence is based upon 'reckless conduct'. This is a much lesser standard than the test for criminal manslaughter which requires an act of 'gross recklessness' to be committed.
The association continues:
Under the Bill, the definition of 'conduct' extends to include 'acts' or 'omissions'. Under this definition liability arises for other than positive acts of recklessness without there being any deliberate intent on the part of the employer.
Under the Bill, a person's conduct 'causes death if it substantially contributes to the death'. The term 'substantial' has been criticised in numerous decisions, in both the Federal Court and the High Court, as being an 'imprecise' and 'not ideal' term to be using in legislation. For example, does 'substantial' mean 'more than the greater part' or 'more than merely insubstantial but not insignificant'?
Under the Bill, the 'standard' by which 'reckless conduct' will be determined is the current standard under the Occupational Health and Safety Act 2000 … (ie the standard here is that of 'must ensure' a risk free workplace).
Under the Bill, there is no definition of 'serious injury', meaning that the NSW Industrial Relations Commission will be able to determine what is a serious injury, not via legislative interpretation, but by factual analysis on a case by case basis. This is again imprecise and leaves too much to the discretion of the NSW Industrial Relations Commission.
Employers First is disturbed by this legislation, and rightly so. It states:
• This latest Bill trebles the monetary penalties for a fatality—even if the risk was minor—and there is no differentiation between penalties for first and previous offenders.
Individuals
Monetary penalty up to $165,000 and/or imprisonment for up to five years.
Corporations
Monetary penalty up to $1.65 m.
• In addition to increasing penalties and adding jail terms, this draft Bill creates a new offence of conduct causing death of any person in the workplace to whom the employer (or certain others) owed a duty to ensure their safety, and where the person who causes the death is reckless as to the danger of death or serious injury to ANY person to whom a duty is owed.
• "Conduct" includes acts or omissions, and the conduct that causes the death need not take place at the workplace (for example, boardroom decisions). The acts or omissions included in "conduct" will inevitably be taken to include the failure to carry out risk management or to do it appropriately, and the failure to provide information instruction and training, etc …
• The Bill is full of qualifying terms which lower the bar as to who might be convicted. It is drafted in a manner that will allow prosecution to go well beyond those whom we might all agree are rogues/cowboys [within certain industries].
o "substantially contributed"—For the conduct to be regarded as causing the death, the prosecution (and this may be a union)—
As the honourable member for Coffs Harbour will tell the House, we know unions will be tearing around in posses hunting down employers to get their 50 per cent of the penalty. The submission continues:
o needs only prove that it "substantially" contributed to the death. "Substantially is well recognised in the law as an imprecise and ambiguous term meaning anything between "not merely minimal" and "considerable, large or big". Consequently you could be convicted even if your conduct was only a partial or incidental contributory cause of death.
O "or serious injury"—the less serious the potential injury, the easier it is for the prosecutor to prove recklessness. Even though the bill is about workplace deaths, recklessness is not to be assessed just in relation to the risk of death but also the risk of serious injury. This too is designed to make conviction easier, especially if the measure of seriousness of an injury will be determined by the IRCCS.
O "any person"—It is the danger of death or serious injury to any person, not explicitly the person who has died. These words extend the range of people in relation to whom recklessness may be established. If you are reckless in relation to any person to whom a duty is owed, you can still be found guilty of conduct substantially contributing to the death of another person. Again, this is designed to make prosecution easier by identifying alleged recklessness in relation to a wider group of employees or other people, which may not even include the deceased.
It may open the vexed question once again of what happens within the corporate culture. Employers First adds:
• How will the IRCCS interpret "substantially contributes to the death" and "reckless"?
Measured against the employers' absolute liability to guarantee perfect safety, zero risk, to risk manage every foreseeable hazard/risk and to eliminate/control them, it will not be difficult for the court to establish these elements. Decisions clearly demonstrate that in the hands of the IRCCS, employers in a wide variety of circumstances will be exposed to jail when that would not be the case with appropriate legislation and a proper court.
• Defences in a Fatality Prosecution
Once WorkCover or the prosecutor has proven the offence, the defendant employer has an additional defence if they can prove there was a reasonable excuse for their conduct. i.e. that their actions were justified given all the facts and circumstances of the incident. Against the backdrop of the current statutory absolute liability for delivering a zero risk workplace and doing everything in the world by way of risk management and given the attitude of the IRCCS judges, that defence will be virtually useless.
• Company director or manager will be able to be charged
Section 26 of the OHS Act which provides that where a corporation is found to have contravened the Act, persons concerned in the management of the corporation will be deemed to have contravened the same provision—does not apply to the new offence. So whilst section 26 is negated where there is a fatality and hence the deemed guilt would disappear, in a "smoke and mirrors" move the government has proposed a new deeming provision. In the Bill each director and each person concerned in the management of the corporation is deemed to have the same duty to ensure perfect safety as the employer corporation. Given that it is impossible for the corporation to meet that standard, deeming these individuals liable for delivering the same standard clearly exposes them to a guilty verdict. It is no improvement on the previous Bill. This is part of the process of manipulating the criminal law to achieve the outcome of exposing employers and their representatives to jail terms.
• Right of Appeal
Appeal rights for employers are still limited under this Bill. A person convicted but not sentenced to jail may appeal only to a full bench of the Commission, so in effect there is no appeal against a monetary penalty. A person sentenced to jail may appeal to the Court of Criminal Appeal, only after first appealing to a full bench of the IRCC.
I agree with the objections of the honourable member for Gosford to the bill. I agree, as all members of the Coalition do, with the basic fundamental importance of human rights. Under the bill fundamental human rights will be denied of employers, supervisors and managers. In the tragic event of a workplace death, the bill does not allow for a presumption of innocence pending proof of guilt. Instead, it effectively assumes the employer is guilty and requires that person to prove his or her innocence. In addition, the employer/supervisor is not afforded a trial by jury and is instead brought before the Industrial Relations Commission, even though under this bill a gaol sentence of five years can be imposed.
Detainees at Guantanamo Bay have more rights than employers, supervisors or managers in New South Wales under this bill. The same detainees are considered enemy combatants and have the right to have their cases heard by a jury of their military peers. Those detainees cannot be given a prison sentence without trial by jury. Those same detainees are also afforded the presumption of innocence until their guilt is proven by a court of law. I agree with the honourable member for Gosford, who said that this is an extreme bill that strips away employers' rights. Section III, article 14, paragraph two of the United Nations International Covenant on Civil and Political Rights states:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Under the bill that fundamental human right is stripped away. I agree with many employer groups and with my colleagues, who say that this bill is unnecessary, onerous and fatally flawed. I ask members of the Government to join with the Coalition to give the bill some sense by accepting the foreshadowed amendments to be moved by the Opposition at the Committee stage. I urge honourable members to support those amendments and not to support the bill in its present form.
Mr ROBERT OAKESHOTT (Port Macquarie) [4.38 p.m.]: I note, as has every other honourable member who has spoken in this debate, that it is a tragedy when a workplace fatality occurs. I share the view of every other honourable member who has spoken in this debate that it is high time that rogue employers were dealt with for allowing unsatisfactory occupational health and safety practices that lead to workplace deaths. However, where I differ—and differ quite significantly—with the Occupational Health and Safety Amendment (Workplace Deaths) Bill is that I think there is a better way of dealing with those rogue employers. From the negotiations and public consultation process that has taken place since the draft bill was circulated in the community, and from what has occurred since the amended bill was presented to this Chamber, I have sensed a very strong feeling among everyone that I have spoken to about this bill.
It relates to what I consider to be the very obvious strategy of the lead union involved in the introduction of this bill, the Construction, Forestry, Mining and Energy Union [CFMEU] and some lead employer groups, such as Australian Business Ltd, Employers First, chambers of commerce and the Government. I would have thought the pre-emptive approach would have been to sit around the table and put together a strategy to deal with rogue employers, rather than bringing before the Parliament a bill that adopts a prescriptive approach to all New South Wales employers. It has become clear to me that the consultation process has not involved the Government sitting down with key agencies and fleshing out ways to deal with rogue employers in New South Wales who are operating in a dangerous way. That process would have allowed the Government and key groups to consider what could be done to deal with those employers, instead of adopting a legislative approach involving employers generally.
What seems to have occurred is that the CFMEU has put forward a bill and the Government has accepted it, and therefore today we are debating an almost blanket prescriptive approach to dealing with workplace deaths. I concur with the comments made by several Opposition members, and I have no problems with their amendments, which I will be supporting. However, as far as a general approach to the bill is concerned, I will be opposing it outright because it is pre-emptive and prescriptive. My constituency is one of home-based businesses and small businesses of fewer than five people. Though I do not believe the bill targets businesses involving family members, we should not be putting in place workplace standards that will affect families that would not place their own lives at risk—and that is 95 per cent of my constituency.
I hope the Government appreciates that is the basis of my opposition to the bill. I hope the Government will favourably consider withdrawing the bill and instead will sit down with the CFMEU and employer groups, such as Australian Business Ltd, Employers First and chambers of commerce, and the many other groups concerned with this legislation, to consider an approach targeting rogue employers. The Minister has said, quite openly, that this legislation is not directed at all New South Wales employers, that it targets but a few. The word "rogue" has been used on many occasions. If the bill really is about targeting the rogue few, why did the Government not set out to target them?
All sorts of issues have been bandied about recently whereby the majority seemingly wear the hit that is intended for the minority. Unfortunately, that is so again with this legislation. I strongly urge the Minister to reconsider his approach. He should sit down with the various agencies and key union involved in a co-operative approach to put together a strategy that actually picks up those who are rogues. Everyone would support and endorse that approach, because we all agree that it is a tragedy when deaths occur in the workplace. I am opposed to this bill because it is pre-emptive and prescriptive, and it will adversely affect many businesses because it tips the balance in occupational health and safety legislation to such an extent that it will become very difficult to do business, particularly for my constituency, which includes a significant proportion of micro small businesses, family-based businesses and home-based businesses operating in regional New South Wales.
I would like to make a point on a related matter, that is, the upcoming occupational health and safety review. I would like to hear from the Minister or his representative in this place what will happen regarding the upcoming broader occupational health and safety review which by statute must occur sometime soon. I will be most concerned if that is some sort of internal, quietly conducted Government review that tends to tick all the boxes, to indicate that occupational health and safety legislation is working well in New South Wales and it is a matter of business as usual. I hope there will be an open and transparent review, independent of government, of occupational health and safety legislation in New South Wales.
Overwhelmingly, New South Wales businesses are saying that the way occupational health and safety legislation has been interpreted by the courts over time has been having a significant adverse impact on business in this State. I am sure that must be of concern to the Government, as it is to the Opposition and to Independent members such as myself. I will be most interested to hear from the Government as to whether it has any plans on how it will conduct that occupational health and safety review. I hope it will be independent, transparent and quite broadly community based in its approach. I look forward to the Government's response on that matter.
Mr ANDREW FRASER (Coffs Harbour) [4.45 p.m.]: As shadow Minister for Small Business, I have spoken to many individual business owners, Australian Business Ltd, the State Chamber of Commerce and any number of employer groups about not only the Occupational Health and Safety Amendment (Workplace Deaths) Bill but the original draft bill that was circulated. Like many others who have spoken in this debate, I represent a community and an electorate whose heart and soul is small business. I will give an example. One of the most basic businesses is the farming enterprise, but particularly a dairy farm. Under occupational health and safety regulations operating at the moment, mum and dad are not allowed to take a child or anyone else into their dairy. They suffer because of that.
In these times of deregulation, when milk prices for producers are low, the labour that had been provided by the family, the next generation of dairy farmers, basically has been barred from the workplace. I suggest to the House that the best way to teach the next generation of dairy farmers to learn about their industry is to have the kids down at the bales early in the mornings and on the weekends. The Government refuses to recognise that any workplace—whether it be the one we are now in, a building site, a dairy farm, a beef cattle farm or an engineering works—is an inherently dangerous place. We need a little less regulation in recognition and acceptance of the fact that all workplaces are inherently dangerous. I would suggest that no employer is out to harm an employee in any way, shape or form.
The bill before the House puts the onus of proof on the employer. If someone is killed in a workplace accident—and I emphasise that we are talking about accidents—the employer is presumed guilty until he or she proves they are innocent before the Industrial Relations Commission. This is not a court of law or jury but the Industrial Relations Commission. Such an employer does not enjoy the normal benefits of the Westminster legal system of the presumption of innocence until proven guilty. Whether for an employee or a person visiting a site, the workplace is inherently dangerous. Recently I was in the Strathfield area and saw an employee on the top floor of a four-storey block of units wearing a safety harness that was dangling. How can the employer be deemed to be responsible for that worker, who obviously was supplied with safety equipment by the employer, knew how it should be used but still worked on the fourth floor of a building with the safety harness dangling in the air?
Under this legislation if that person were to fall off the building the employer automatically would be guilty of an offence until proven innocent. I wonder how forgiving the industrial relations tribunal would be if the Construction, Forestry, Mining and Energy Union [CFMEU] brought the complaint against the employer. The CFMEU could bring the proceedings to the court under a moity. The bill provides penalties of $1,650,000 in the case of a corporation or imprisonment for five years or $165,000, or both, in the case of an individual. How can such an onus be placed on an employer if an employer is absolutely innocent? I have never seen legislation that has so stirred up small business in this State. Since the first draft of the legislation I have travelled across the State and attended seminars conducted by New South Wales Farmers, Australian Business Ltd and chambers of commerce that have written to me and, I presume, other members of this place and the Government about the draconian nature of the legislation. The difference between the legislation we are debating and the draft legislation is minuscule. I suggest that struggling small businesses are exposed to occupational health and safety regulations.
For example, in the Coffs Harbour area one local builder was fined $250 by an overzealous occupational health and safety inspector because a footprint was made outside a work site toilet in wet weather. Another example, which involves the same inspector, relates to a work site where an employee was cutting out noggings for a dwelling. The noggings were coming off the workbench and falling onto the floor, which is the normal practice. However, the employer was fined for allowing the noggings to fall onto the floor when no-one else was working up against the wall. The Government's attitude to small business especially is absolutely deplorable. I wonder what Baulderstone Hornibrook, the builders of the cross-city tunnel, would say about a $1,650,000 fine imposed by the Government if someone were killed in the course of building the tunnel across Sydney, which is a dangerous activity. If my memory serves me correctly, a tragic death occurred while the tunnel was being built. Under the legislation, regardless of precautions taken by the company, the company would be guilty and subject to a fine of $1,650,000.
Mr Tony Stewart: That is simply not true, and you know that.
Mr ANDREW FRASER: It is not true?
Mr Tony Stewart: Tell the truth here today.
Mr ANDREW FRASER: It is not true? The onus of proof is on the employer. The trouble with that lot over there is that they have been sucking up to the unions for too long. They are funded by the unions. Regardless of the fact that the Premier has been pushing Baulderstone Hornibrook so that he could open the tunnel before he resigns at the State conference this weekend, they cannot get it ready. I have a donation sheet of political contributions to the Australian Labor Party, which includes Leighton Holdings Limited, Boral Limited—
Mr Tony Stewart: Point of order: The honourable member is not relating any information that is relevant to the debate. I ask that he be brought back to the debate issues.
Mr ANDREW FRASER: To the point of order—
Mr DEPUTY-SPEAKER: Order! The debate is about occupational health and safety, not donations to political parties.
Mr ANDREW FRASER: I accept your ruling. I wonder if companies such as Leighton Holdings Limited, Boral Limited, Meriton Apartments Pty Ltd, Paynter Dixon Constructions (Australia), AMP Ltd, Lend Lease Management Services Ltd, Australia Hotels Association, Johnson and Johnson Real Estate, Mirvac Group, Transfield Corporate Pty Ltd, Australand, Gosford Quarries Ltd, Better Buildings Pty Ltd, Dyldam Developments Pty Ltd, Loulach Developments Pty Ltd, Merc Projects Pty Ltd, Nassif Excavations, Radray Constructions Pty Ltd —
Mr Tony Stewart: Point of order: We have let this go on far enough. It is ridiculous.
Mr DEPUTY-SPEAKER: I do not know where this is leading, but it is certainly not within the leave of the bill.
Mr Tony Stewart: It is not leading to any argument about the issue. I point out to the honourable member that the bill is based on recklessness causing death—recklessness. That is how the bill treats employers who are reckless. That is a reckless employer. You are not talking about the context of the bill.
Mr DEPUTY-SPEAKER: Order! I call the honourable member for Coffs Harbour back to the leave of the bill. If he has concluded his speech he may resume his seat.
Mr ANDREW FRASER: All those companies would have grave concerns that the legislation holds the employer to be guilty until it proves itself innocent. The onus of proof is on the employer. That is in the legislation. It does not talk about contributory negligence from employees. Define "reckless" for me! What is "reckless"? If the employee at Strathfield, to whom I referred earlier, decided not to attach the hook to his safety harness, how could the employer be found guilty of recklessness? But who will prove that the employee did not have the hook attached if the charge is brought by the CFMEU? All the companies I mentioned are involved in construction and building in New South Wales. I wonder whether the Government consulted any of them before it introduced the legislation. It just so happens that all those companies are on the public record as contributors to the Australian Labor Party prior to the last election.
Mr Tony Stewart: Point of order: Once again I draw your attention to the member straying from the debate. There is a strong definition for "recklessness" within the legislation. It is determined by an employer who is willingly reckless and it is measured by legal argument. That is the way it occurs.
Mr DEPUTY-SPEAKER: Order! If the honourable member for Coffs Harbour has concluded his speech in relation to the bill he can resume his seat. If he wishes to continue and confine his remarks to the leave of the bill he may do so.
Mr ANDREW FRASER: I believe I am within the leave of the bill. I am asking questions as to whether those companies, Leighton Holdings or any of the others, have been consulted about the legislation. If they have been consulted the honourable member for Bankstown should tell us. I do not believe any of those employers would agree with the legislation. I have no doubt that the CFMEU and the union mates of members opposite definitely would be in there. As the honourable member for Gosford said, the Crimes Act provides 25 years for manslaughter if an employer is negligent. When one considers that 50 per cent of the $1.6 million penalty for a charge brought by the CFMEU goes to the union, one would have to ask seriously and honestly where the idea for the legislation came from.
The legislation is not in the interests of industry in this State. People are driving to Queensland to get out of the most overregulated State in Australia. The Business Council of Australia report, which was released on Monday week ago, highlights that for the past decade this Government has produced 300 pages of legislation and regulation every week. That is what is driving business out of the State. That is what is forcing up the cost of business in this State. That is why every time these types of bills are introduced Beattie claps his hands with glee. Death by negligence and manslaughter are covered in the Crimes Act, and those prosecuted under the Crimes Act have an opportunity to be judged by a jury of their peers. Charges brought under this legislation will be heard by an industrial relations tribunal, which will be weighted heavily in favour of the employee. The bill contains nothing about contributory negligence.
I could continue for some time and refer to the number of people who are killed in the timber industry and on building sites in the construction industry, which are dangerous industries. On many of those occasions I suggest that contributory negligence was a factor. But under this legislation it is up to the employer to try to prove that and I do not believe they can. It is no wonder the Premier is trying to beat up John Howard about the industrial relations legislation that will be introduced after July. Maybe it will put some faith back into business in this State. On behalf of all business—small business, farmers, Australian Business Ltd, chambers of commerce, members and non-members who are so fearful of the legislation—I ask the Government to reconsider the legislation and ask the donors to the Australian Labor Party whether they really want this legislation.
Mr ANDREW STONER (Oxley—Leader of The Nationals) [4.59 p.m.]: The Occupational Health and Safety Amendment (Workplace Deaths) Bill is the culmination of a typical Labor three-card trick in which the Labor Party goes out hard with an Armageddon type of proposal, concedes a little bit of ground, and in so doing convinces people that somehow Labor has had a win. This bill does not represent a win. It is a continuation of Labor's anti-business, anti-farmer socialist agenda that is driven by the trade unions that are struggling to achieve relevance in the modern world. Thanks to the Federal Nationals-Liberal Coalition Government, real wages in Australia are now 14 per cent higher than when Labor was last in government federally, so the unions make an ambit bid for relevance. As usual, the Premier gives in, and this bill is the outcome of that process.
I should note that this bill allows for 50 per cent of fines to be paid to the union that brings a prosecution, which could be $825,000. Of course the trade union movement funds the Labor Party, so it is quite possible that fines under this bill could find their way back to the Labor Party whose members comprise the government that has introduced this bill. Despite this bill being better than the scorched earth exposure draft bill, it is still not good enough and will send many businesses packing to other States. It will also drive drought-stricken farmers to the wall. It is not possible to guarantee that a tragic accident will never occur, especially in rural industries, such as the cattle and timber industries, or on farms. Whether actions constitute reckless conduct or not will become the subject of costly legal debate which, by virtue of this bill, will bankrupt most small businesses and farmers.
Employers can do all the right things—and heaven knows that WorkCover is all over employers like a rash—but they cannot stop an employee going against their training and all the rules; nor can they stop, for example, an armed robber shooting someone. Employers may do their best, but sometimes the responsibility for an accident will lie elsewhere. Labor and the unions do not accept that, so they are victimising employers in this State by attributing all responsibility to them, irrespective of the circumstances. Labor and the unions do not understand that 99.9 per cent of employers are concerned about the wellbeing of their workers and will do all they can to look after their workers, nor do they understand that the Crimes Act and the current WorkCover system are in place to control the careless or reckless minority.
This bill is grossly unfair, not only in respect of the issue of responsibility that harks back to the flaws in the 2004 bill, but because it denies a trial by jury for an offence that attracts a sentence of imprisonment. This bill provides the Industrial Relations Commission alone with power to gaol employers in the event of a workplace fatality and denies a trial by a jury of peers. In effect, this bill represents a denial of the principles of natural justice. For all the reasons I have stated, including the economic impact on the already lagging employment and economic growth performance of this State, The Nationals will oppose the bill.
Mr PETER DRAPER (Tamworth) [5.02 p.m.]: I welcome the concessions that the New South Wales Minister for Commerce, the Hon. John Della Bosca, has made in introducing the Occupational Health and Safety Amendment (Workplace Deaths) Bill. The Minister's reconsideration of the flawed Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill and its replacement with a revised, more targeted piece of legislation demonstrates that the Government is willing to listen. It also demonstrates, however, that it is critical for community members to assess on merit proposed legislation which stands to affect them and not to be swayed into acceptance by the Government's use of rhetoric.
In the recent second reading speech of this new Occupational Health and Safety Amendment (Workplace Deaths) Bill, the Minister for Mineral Resources Kerry Hickey, stated that the vast majority of employers have nothing to fear from this new provision. Disturbingly, the Hon. John Della Bosca, in his ministerial statement on the now-defunct draft workplace fatalities bill, gave the same assurance stating that hardworking, responsible employers have nothing to fear from this bill. He went on to say that the 2004 bill was aimed at a minority—"the rogues whose indifference to health and safety … results in death". Who are these rogues? Have Australian Business Ltd , Employers First and other representative groups sat down with the Government to identify the rogues? What is being done to target the rogues?
The rhetoric was what employers wanted to hear, but the Minister got it wrong on the first occasion. Hardworking responsible employers from my electorate indicated to me that they had plenty to fear from the original legislation as it was not in fact targeted at rogue employers: rather, the bill lumped all employers together, regardless of their safety record, and made them for the first time subject to gaol terms and hefty fines. The Minister admitted that he missed the mark by withdrawing the original legislation and introducing a revised version, the Occupational Health and Safety Amendment (Workplace Deaths) Bill. This bill appears to be aimed squarely at those who need to be brought to justice—rogue employers.
However, with the same assurances given on the first flawed bill now being applied to its successor, it is hard to be assured that employers' fears have been allayed. An industry lobby group, Australian Business Ltd, seems to have been convinced. I believe that on this occasion the tightening of the legislation and its more targeted approach to irresponsible employers are acceptable. ABL credited Tamworth as the turning point in the campaign to make the legislation fair and workable for responsible employers. The meeting I convened in Tamworth, which attracted 300 people, was the first major rally of a number which rolled out across the State, attracting thousands of employers, farmers and concerned citizens. The Tamworth meeting was preceded by a gathering organised by the Gunnedah and District Development Board that attracted 50 people and provided the inspiration to hold the larger, more comprehensive public forum in Tamworth.
I pay tribute to the President of the Gunnedah and District Development Board, Mick Brockman, and executive officer, Anne Sims, for having the foresight and the vision to conduct the very first meeting of its kind in this State. I also received hundreds of letters from concerned employers, business people, farmers, community organisations, lobby groups and community members opposing the legislation and I forwarded them to the Minister for consideration. I am proud of the fact that the Tamworth electorate is such a proactive community and that it made such a worthy and effective contribution to the debate on this legislation. In March this year figures were released that showed that work-related fatalities and employment injuries had dropped to their lowest levels in 15 years, with fatal injuries in the workplace having decreased by almost 33 per cent. I believe this reflects the fact that the vast majority of employers take occupational health and safety laws very seriously—so seriously that some have considered exiting their industry simply because they feel that compliance with the Occupational Health and Safety Act regulations is beyond their reach.
The threat of gaol terms and enormous fines in the unfortunate circumstance of a death in the workplace seemed to be the final straw for many. At least now if the welfare of workers is regarded first and foremost in their conduct, when there is a fatal accident employers will not face the prospect of being prosecuted as a rogue with no recourse for appeal. Commonsense has been applied and employers, controllers of work premises, directors, managers and employees will not face gaol or fines unless their behaviour is demonstrably reckless and indifferent in regard to safety of the victim. The fact remains that the Occupational Health and Safety Act remains a thorn in the side of the business and farming communities. Farmers in particular face considerable challenges in complying with the Occupational Health and Safety regulations as they require farmers to remove 100 per cent of the risk of an accident from their farms.
By virtue of the way that a farming workplace is structured, this is impossible and is placing unnecessary stress on farmers who are baulking at employing workers. The absence of employees seems to be the only way of guaranteeing that an accident involving an employee will not occur. An employee's actions are a factor in any accident, and it is therefore unreasonable and impossible for employers of any kind to guarantee their safety 100 per cent. I look forward to contributing to a review of the Occupational Health and Safety Act, which I believe will take place later this year. In the meantime I commend the Minister for listening to the concerns of business groups, farmers and others, and for amending what was a flawed piece of legislation.
Mr IAN ARMSTRONG (Lachlan) [5.07 p.m.]: It is not with pleasure that I join in debate on this highly controversial legislation that unfortunately will occupy the time of lawyers and members of Parliament at some time in the future. It is a fact of life that there will always be accidents in the workplace, as there are in the home or in any other premises that people occupy from time to time. There is no such thing as a utopian workplace where people simply will not be injured. There is no such thing as an accident in a workplace that does not involve a certain amount of contributory negligence on behalf of one or other of the parties, and often on behalf of both parties.
As several speakers have outlined aspects of the Occupational Health and Safety Amendment (Workplace Deaths) Bill in some detail, it is fair to ask a very simple question: What is the definition of "reckless"? Research on debates in this Parliament in which the term "reckless" was discussed and recourse to dictionaries reveal that there are many definitions of the term, but the simple fact is that I am one of few members of this Parliament to have employed large numbers of people and to have been employed in dangerous situations. I have been employed in shearing sheds and as a farmer.
Mr Gerard Martin: And as a member of The Nationals.
Mr IAN ARMSTRONG: I have also been opposed by the Labor Party—although I must say that that was never particularly dangerous. I understand the responsibilities that are placed on an employer. I understand also that since this legislation was announced, some eight or nine months ago, I have received the biggest lobby for many years from employers and the broader community regarding the impact of the legislation. Simply, the legislation provides that if a person asks a man or a woman to mount a horse and ride down the paddock to muster cattle, and he or she comes to grief by falling off the horse, that person may be charged with being reckless.
Mr Tony Stewart: No, it does not. You are a smart operator, you have been around for 100 years. Recklessness is tested very clearly in legislation, but it is not defined in the bill because it has already been defined in common law.
Mr DEPUTY-SPEAKER: Is the honourable member for Bankstown taking a point of order?
Mr Tony Stewart: No, I am trying to guide the member, because he has obviously gone down a stray track.
Mr DEPUTY-SPEAKER: I draw the attention of the honourable member for Lachlan to the subject matter of the debate.
Mr IAN ARMSTRONG: I was quite happy to let the Parliamentary Secretary continue because clearly he is totally unaware of a case involving McLaughlin.
Mr DEPUTY-SPEAKER: That is an assumption on your part.
Mr IAN ARMSTRONG: Yes, it is, but he let himself into it. About five years ago, a case was brought involving the McLaughlins and the death of a Mr Croker. That case concerned a young employee, Mr Croker, who had worked for them for 18 months. McLaughlins asked Croker get on a horse and ride into the paddock to muster some cattle. Croker came off the horse and was killed. That was very sad; I know his parents and his family quite well. I also know the McLaughlins quite well. Yet, because of the meaning of "recklessness" the legal advice to them was, probably quite correctly, to plead guilty, which they did. In the past 12 months the McLaughlins pleaded guilty and were substantially fined.
Mr Tony Stewart: Heedless and careless conduct, is that what you are saying?
Mr IAN ARMSTRONG: No. We are talking about recklessness, which you wanted to debate a few seconds ago. I have given you an answer and you cannot get around that because the law found that what I am saying is correct.
Mr Tony Stewart: It is what the common law describes, careless conduct.
Mr IAN ARMSTRONG: Settle down, you might learn something. You cannot listen and talk at the same time, you are not that smart. The bottom line is that unless legislation is workable, practical and capable of being implemented, and unless society is capable of working within the framework of that legislation, it is flawed. Unless employers and employees can work with confidence and trust in each other we will be doing both parties a disservice by passing legislation that will inhibit employment and a good relationship between employer and employee. There has to be trust. What qualifications are necessary for an employer to not have to face the possibility of having to prove that he was not reckless? If I employ someone to ride a horse to muster sheep or cattle and, heaven forbid, there is an accident, how can I justify before a court that I was capable of ascertaining whether the person was capable of riding a horse, and, further, that I was qualified to do so? I do not have any qualifications at all to train someone to ride a horse.
Mr Gerard Martin: That is patently obvious.
Mr IAN ARMSTRONG: I have far more qualifications that you have, my good friend. Although one might have experience, that is not good enough in the eyes of the law—experience was the defence put forward by the McLaughlins. That very simple and transparent case was decided, and the word "recklessness" was useless.
Mr Tony Stewart: That was not prosecuted under the current provisions. You are off the track, it was not prosecuted under this bill.
Mr IAN ARMSTRONG: The Parliamentary Secretary is a bit thick. He does not understand that we are talking about the word "reckless", not about legislation. It was his Government that put the word "reckless" in the legislation. I am very conscious that this debate is about the word "reckless". Is a house owner reckless if he asks someone to climb onto the roof of his house to paint it? Is a farmer reckless if he asks someone to drive a tractor? Is a person reckless if he asks someone to start a stationary engine with a crank handle? Those sorts of things occur every day in the workplace. Is a person reckless if he asks someone to brand calves? In each example I have given it will be necessary to have training; the employer will have to be able to demonstrate that he or she has enough training to be able to assess whether the workplace is comfortable and whether the workperson, the term that is to be used, is competent and capable and has the necessary training to perform the required duty.
It is almost impossible to comply with the criteria in most workplaces, particularly in the rural sector. Recently a builder asked me what he first had to do to jackhammer an old cement veranda off a house and build a new veranda. I said he had to find someone to assess whether he can use a jackhammer. He told me that blokes who work for him can use a jackhammer without a minute's training. A jackhammer is pretty dangerous in the wrong hands and there are plenty of fellows who have used them for years without any training. My point is: although I understand the principle of the legislation, it will lead to very messy court cases in the future which will occupy the minds of barristers and Queen's Counsel for a long time and will empty the pockets of many people. At the end of the day, we will still not have any clear definition of the word "reckless". Nor will we have any clear approach on how there can be confidence and trust between employer and employee in performing required duties with required basic responsibilities that are sensible, practicable and workable.
Mr RICHARD TORBAY (Northern Tablelands) [5.16 p.m.]: The honourable member for Tamworth pointed out that after community consultation on the draft bill a range of concerns were raised, particularly in regional areas. The honourable member for Lachlan said he had received significant lobbying concerning this bill, and that was certainly the case in the New England area. I clearly remember that at the first forum called by the honourable member for Tamworth a significant number of people attended to debate their concerns with the draft proposals. That forum was followed by a similar meeting in the Northern Tablelands, based in Armidale. A full town hall on a Monday morning sent a message to me about the concerns in my electorate, and that meeting mirrored the massive number of people who attended the two rallies held in the electorate of Tamworth. The honourable member for Tamworth was the first member to make sure that his community was well informed. He made sure that his community's concerns were put to the Minister.
In the feedback I have received from my community it was clear that employers in particular support safe work practices and safe workplaces. It was suggested that employers were trying to cop out of providing safe workplaces. I want to get that furphy out of the debate: they were not. Most importantly, the employers told me that they supported good, fair and proper conditions for their employees. However, they were concerned that under the original draft legislation an employer who is unfortunate enough to be held responsible for a fatality in the workplace would be deemed guilty until proven innocent. That concern clearly came through the forum that I hosted in Armidale and the enormous number of representations that I have received. The Minister indicated right from the outset that those draft reforms were open to consultation. The Minister said that he would take on board those concerns and would come up with a draft bill, and that is what we are debating today.
As the honourable member for Tamworth said, in many cases the Minister listened to the concerns that were expressed. I oppose the bill on the following grounds. In my view so many changes have been made to the bill that it is no longer relevant. The Minister pointed out that the current Act is subject to review at a future time. It is worthy of review because of the impact that it has had since its inception. All those issues could be dealt with as a result of such a review. The legislation that originally targeted employers, unfairly in my view, has been modified to such an extent that it is no longer required. As I said earlier, any review in the future would resolve those issues. I call for a review of this legislation because some important issues have not been considered. Previous amendments to this legislation occurred in the heat of debate on insurance premiums.
All honourable members would remember the concern that was expressed at that time. It is important to maintain cool heads. We must not marginalise responsible employers. If employers are reckless the penalties that exist in this legislation should be imposed. I am sure that all responsible employers would expect that to occur. Members of the community want commonsense to prevail and they want to ensure we have safe workplaces. If they do everything they possibly can to reduce fatalities in the workplace it should not impact on their lives and their businesses. The Minister listened to many of the concerns that were expressed in relation to this watered down bill but I suggest that it is no long warranted. A subsequent review of existing legislation should address all the concerns that have been raised. I oppose the bill.
Mr THOMAS GEORGE (Lismore) [5.20 p.m.]: Tonight I refer to the concerns that have been expressed in relation to the Occupational Health and Safety Amendment (Workplace Deaths) Bill by the majority of small businesses, primary producers and major businesses in my electorate. This bill was introduced despite current statistics that show falling injury and fatality rates in New South Wales. This bill increases penalties for occupational health and safety offences and proposes gaol sentences for first offenders. Fines of up to $165,000 will be imposed on directors and managers and fines of up to $1.65 million will be imposed on companies.
Trade unions will be entitled to 50 per cent of any fine that is imposed. The bill reverses the onus of proof that a company is guilty until proven innocent. The bill would permit right of entry to union officials and enable workplace death charges to be laid against any employer or manager. When the original legislation was being debated in 2004 a letter appeared in the Northern Star the day before a seminar was to be held in Lismore. That letter states:
Regardless of the scare campaign fanned by Lismore MP Thomas George, local businesses have nothing to fear from occupational health and safety laws.
I am currently consulting businesses and unions about a draft Bill designed to target the very small minority of employers whose disregard of basic safety measures results in the death of employees.
The draft Bill contains no new duties for employers and no new offences. It does, however, introduce an avenue of appeal beyond the Industrial Relations Commission.
It does not suggest businesses are guilty until proven innocent. A prosecutor has to prove a breach of workplace safety laws to the criminal standard of proof, that is, beyond reasonable doubt.
While the court may award half the fine to the prosecutor, this has been a feature of New South Wales general criminal law since 1901 and the draft Bill does not change this.
The draft Bill has not been introduced in State Parliament and won't be in its current form.
Many employers and unions have made sensible, constructive suggestions, and I am continuing to consult about the best way to resolve these important issues.
During months of consultation I have not yet spoken to an employer who has argued that rogue employers who cause the death of vulnerable workers should not be the subject of the full force of the law.
JOHN DELLA BOSCA
NSW Minister for Commerce
The next day the bill was withdrawn, even though it was alleged that I was promoting a scare campaign in the small business community. I organised a meeting in Lismore because of the concerns expressed by small businesses, owners, producers and major business owners. I wrote to the local paper and challenged the Minister, who has not had the decency to respond to my allegations. As a former employer I agree with the Minister on one point. Rogue employers who cause workplace deaths should be subject to the full force of the law. This Government is treating every employer in New South Wales as a criminal.
Mr Tony Stewart: That is not true.
Mr THOMAS GEORGE: The Government should tell that to employers. How many people has the honourable member employed?
Mr Tony Stewart: They support the bill.
Mr THOMAS GEORGE: Employers do not support this bill. The Government does not have the support of employers. I agree that rogue employers should be prosecuted but we do not need this legislation to do that. The honourable member for Northern Tablelands said earlier that this bill is not required. Rogue employers can be prosecuted as a result of changes to the Occupational Health and Safety Act. This bill should be ripped up and discarded. We do not need it. If the Government comprehensively changes the Occupational Health and Safety Act it will resolve those problems. This legislation is designed to target all employers.
The Government is treating all employers as criminals. It is imposing fines on small employers, primary producers, dairy farmers, rural producers and major employers in this State. The Government does not need this legislation; it should be ripped up and thrown away. If the Government wants to prosecute rogue employers it should just amend the Occupational Health and Safety Act. The shadow Minister, the honourable member for Gosford, highlighted the Opposition's concerns and foreshadowed that he would be moving amendments in Committee.
Mrs DAWN FARDELL (Dubbo) [5.29 p.m.]: I oppose the Occupational Health and Safety Amendment (Workplace Deaths) Bill. I agree with some of the comments made earlier by the honourable member for Lismore. A rally was organised in the Dubbo area and a forum was held at the RSL club. A couple of hundred people gave up time that they could ill afford on a Monday morning to attend that forum. Workers and farmers expressed grave concerns about their future if this legislation is passed. I realise that this legislation has been modified but it is still not strong enough to address concerns and to support people in my electorate and in other electorates in New South Wales.
The farmers have enough to deal with during this time of drought without the possibility of losing everything they have worked for. Many successful small business people in my electorate have worked since the ages of 11 or 12—they took their bags of cement, their wheelbarrows and shovels and built successful businesses from the ground up. Plumbers and electricians, who have not had an extensive education, must now follow stiff regulations and are fined if they put a foot wrong. One electrician from Narromine asked me, "How do you stop the idiot factor?" Employers can try to be prepared, have the rules and regulations in place and train their staff and apprentices but the idiot factor can bring all they have worked for tumbling down.
I certainly cannot support the bill. I have listened long and hard to my electors, who asked me to speak in this debate and express their concerns. I agree with the honourable member for Lismore in calling for a review of existing legislation. There will always be rogue employers. I mentioned the problem of skills shortages in a recent private member's statement. We are overregulating—take the arbitrary points system, for example. Many in the business community do not have time to take morning coffee or lunch breaks—they do not have the same luxuries that members of Parliament enjoy. They do not have time to tally up hours and achieve so-called "certificates". I believe every person who has been in business successfully for five years should receive 100 points. Points could then be deducted from employers who do the wrong thing and they would then have to complete a course to have their points restored. The system would be similar to that which operates for drivers, who lose points from their licence when they are convicted of driving under the influence of alcohol, speeding or any other traffic offence. That is a most logical, sensible system. The idea was suggested by some hardworking tradesmen in my electorate.
Many tradesmen, particularly those who have reached 50 years of age, are not renewing their trade licences. They have the relevant skills and do not see the point in sitting skills tests. For example, a couple of illiterate tradesmen failed the exams that certified them to drive loaders—although they had been driving them for 30 or 40 years! Are we really looking after those people whom we purport to protect? I do not agree with the bill and I recommend a total review of the system. I accept that the legislation has been watered down, but not enough. I believe we should knock it on the head now. The system must be reviewed, and I am happy to serve on that review committee.
Mr STEVEN PRINGLE (Hawkesbury) [5.32 p.m.]: I join my Opposition colleagues and many other members in the Chamber in opposing the Occupational Health and Safety Amendment (Workplace Deaths) Bill. I ask, yet again, the fundamental question: What is the rush? A comprehensive review of the Occupational Health and Safety Act will be conducted towards the end of this year, so surely the introduction of the bill should have been delayed until then. I hope that that review will examine some overseas practice. What are they doing in Canada or the United Kingdom? Perhaps we might consider working co-operatively with employers for once. We need every employer in this State. New South Wales has the lowest growth rate of any State in Australia so every employer and every tradesman is important. As the honourable member for Dubbo said, we must encourage tradesmen to remain in their industries. We do not want them to leave because they are completely and utterly terrified of what this legislation could do to them and their families. That is a most important point: This legislation could cause major problems for employers and their families.
Boards of voluntary directors are particularly concerned that they could be held liable—and possibly gaoled—for actions that are beyond their direct control. We know that the old draft bill terrified employers absolutely and prompted protests around the country. I am sure I speak for many Opposition members when I say that the two biggest issues of the past 12 months were land tax and the former bill. The current bill does little to address the problems that were so evident in the draft bill. Those problems centre on the denial of the right to trial by jury—a fundamental 700-year-old right. The bill will affect not just employers but team leaders, site supervisors and others who are deemed to be in positions of authority on work sites.
My electorate, like those of many members who have spoken in this debate, is characterised by small business, including small farms. There are many mushroom growers in Hawkesbury, and the Australian Mushroom Growers Association has expressed particular concern about this and the former bill. The association points out that, even with the most careful and rigorous workplace risk management, it is simply not possible to guarantee a 100 per cent risk-free environment. That is a key point. How can businesses ever be absolutely risk free? That standard is not practical—indeed, this bill ignores many of the practicalities that employers face every day at work. A builder in my electorate who employs 30-odd people told me recently that he heads to work every day literally petrified that someone will be hurt in the workplace. He has taken every precaution possible but he is afraid that his business will go bankrupt and his family home will be on the line because of legislation such as this.
How will a nurseryman, for example, guarantee a 100 per cent risk-free environment for his employees? A nursery owner told me recently that one of his employees had killed a snake. It was an endangered species so he should not have done so, but if that employee had been bitten and killed his employer would be deemed not to have provided a safe workplace.
Mr Peter Draper: What about farms?
Mr STEVEN PRINGLE: Exactly. How will that nurseryman provide a 100 per cent safe work environment? He cannot. He said that he is no longer interested in working in the industry and plans to sell up and get out. The drought and the Government's failure to provide an adequate water supply to much of the Hawkesbury and the State as a whole have caused further hardship. This bill is not necessary. I urge the Government to wait for the review that will occur at the end the year. But, if this bill is to be forced upon us, it must contain the right to trial by jury, which is a fundamental right that every New South Welshman expects to have.
Mr DAVID BARR (Manly) [5.38 p.m.]: I represent many businesses and workers in Manly, but no farmers—we have no farmers in Manly. I certainly would have opposed the previous legislation because of its reverse onus and lack of defences. It was far too onerous for employers. The Occupational Health and Safety Amendment (Workplace Deaths) Bill is a different kettle of fish. I will wait to see the amendments that the Opposition intends to move in Committee, but I have heard a fair bit of codswallop in today's debate. We must never forget that death in the workplace is totally unacceptable. It is not acceptable for people to die at work, and it is the duty of businesses and the Government to ensure that there is an adequate occupational health and safety system and that workplaces are safe.
Under this legislation it is proposed that a person whose conduct causes the death of another person at any place of work, and who owes a duty under the Occupational Health and Safety Act with respect to the health or safety of that person engaged in that conduct, and who is reckless—there seems to be a lot of play on the word "reckless"—as to the danger of death or serious injury to any person to whom that duty is owed, is guilty of an offence. That duty is owed by employers, the self-employed and various other persons. What constitutes recklessness? The Minister for Mineral Resources, in giving the second reading speech on the bill, said:
"Recklessness" has been defined as heedless or careless conduct where the person can foresee some probable or possible harmful consequence but nevertheless decides to continue with those actions with an indifference to, or disregard of, the consequences."
The thrust of this legislation is a reckless indifference as to the safety or otherwise of employees. Anyone who is recklessly indifferent as to the safety or otherwise of employees has a responsibility if an employee is injured or killed. The issue is whether the employer is recklessly indifferent as to the safety of the workplace. The bill provides for a defence of reasonable excuse. Another speaker referred to someone being bitten by a snake and dying. That is a furphy. The issue is whether there is a safe place at work. If there is not and, unfortunately, an injury or fatality occurs, how does one use the provision of statutes to reach those persons who are responsible for the lack of safety of the workplace without doing damage to those who are not responsible?
If an employer is recklessly indifferent as to the safety of an employee the burden should fall on that employer. That is what honourable members should address in this debate. It is nonsense and codswallop to suggest that if a snake on a farm bit a worker and that worker died, the farmer would be liable. I wait to see the Opposition's amendments, which I hope are better and more intellectually rigorous than arguments such as that. People must not die at work and, as legislators, it is our responsibility to make sure we put in place a statutory system that ensures that as few people as possible are killed or injured at work. We must ensure that employers who are recklessly indifferent to the wellbeing of their employees suffer the consequences. Under the principal Act directors, voluntary board members and others are not liable for the actions of the corporation but they may be liable for their personal actions. I put that furphy to rest as well. I am curious about the Opposition's amendments, but I have not been persuaded by its arguments—and I have not been persuaded by parts of the arguments from the Government side either. Death at work is a serious issue.
Mr ANDREW CONSTANCE (Bega) [5.42 p.m.]: I oppose the bill, primarily because in the past six months the timber, fishing and dairy industries in my community have expressed their concern about the occupational health and safety measures of the Government. The main aspects of the bill are the creation of a new offence, reckless conduct causing death. Prosecutions will be conducted before the Industrial Relations Commission without trial by jury, and statutory penalties that may be imposed upon directors and managers found guilty of an offence include a maximum fine of $165,000 and/or a gaol term of up to five years for the first and subsequent offences.
It is abhorrent to deny a trial by jury to anyone who can be sent to prison for up to five years. Any such person should be entitled, under common law, to a trial by jury. The bill does not provide for that, and that is where it falls over. By introducing this bill the Government is denying a fundamental 700-year-old right to every foreman, team leader or site supervisor. The Opposition foreshadows that it will move amendments in Committee to remedy that. Under the bill unions will continue to be allowed to prosecute an employer. That will encourage bounty hunting. I have no doubt that this bill denies natural justice. An alleged murderer has a right to a trial by jury and the same right should apply to those charged in relation to workplace fatalities. I do not believe judges of the Industrial Relations Commission are well placed to provide what, in essence, should be a criminal prosecution. That fact is lost on the Government and on the honourable member for Manly. That is why the Opposition will move amendments to the bill.
All legislation should encourage the employment of staff and the growing of businesses, particularly in the agriculture sector. The bill will not achieve that objective. The timber and fishing industries, dairy farmers and chambers of commerce in regional areas have expressed concern about the intent of the bill. They are still concerned with this watered-down legislation. The bill contains many qualifying terms which lower the bar as to who might or might not be convicted. In some ways, the bill will allow the prosecution to go well beyond those whom we might all agree would be regarded as rogues or cowboys in the industry. All honourable members acknowledge that the timber and fishing industries and farming communities are high risk. The bill contains ambiguous terms. The Government is yet to clarify what "recklessness" means in relation to a prosecution. The New South Wales Farmers Association and industries want greater clarification, but the Government refuses to clarify that term.
Mr Thomas George: Trust them!
Mr ANDREW CONSTANCE: As the honourable member for Lismore has pointed out, Government members ask us to trust them. That is not acceptable. This is bad legislation and the House should not pass it. The Government has indicated that the legislation will be reviewed. The Opposition will read the review and consult appropriately about it. The Government has achieved an "F" for failure in relation to consultation on this bill. It has failed to consult with those businesses upon which the bill will have a direct impact, particularly, those high-risk businesses where, unfortunately, deaths occur in the workplace. Unfortunately, deaths will continue to occur in those businesses forever and a day. The bill will encourage employers in their late sixties who have been involved in industry all their lives—timber contractors and the like—to walk away from their businesses. The jobs for employees will disappear.
The true test of this bill as it relates to regional New South Wales is whether it will generate employment? The answer is, probably not. It is high time the Government went beyond the Sydney basin to find out what businesses in regional New South Wales are saying about this issue. There has not been appropriate consultation on the bill. We acknowledge that it has been watered down. The two key concerns of the Opposition are, first, the denial of a trial by jury and, second, the fact that unions will continue to be allowed to act as bounty hunters in the industry. Therefore, the Opposition will oppose the bill. I look forward to supporting the Opposition amendments foreshadowed by the shadow Minister.
Mrs JUDY HOPWOOD (Hornsby) [5.49 p.m.]: I indicate at the outset that the Opposition will oppose the Occupational Health and Safety Amendment (Workplace Deaths) Bill. The objects of the bill are, first, to amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of the Act to engage in reckless conduct that causes death at a workplace and, second, to amend the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal where a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence.
Proposed section 32A provides that a person (a) whose conduct causes the death of another person at any place of work, and (b) who owes a duty under part 2 of the Occupational Health and Safety Act with respect to the health or safety of that person when engaging in that conduct, and (c) who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct, is guilty of an offence. The proposed offence will carry a maximum penalty of $1.65 million in the case of a corporation or imprisonment or five years or $165,000, or both, in the case of an individual.
I, too, represent many businesses, small and large, and I, too, consulted widely and received considerable feedback on the initial workplace fatalities legislation, and now this watered-down workplace deaths legislation. I concur, as would every member of this House, that death or serious injury in a workplace is a very serious matter and would be so regarded by any existing legislation and those in authority who consider what should be done to ensure the safety of employees and employers. I take this opportunity to place on record my congratulations to Greg Bepper, President of the Hornsby Chamber of Commerce. He and I arranged a forum to debate the original workplace fatalities legislation in the Greater Union facility at Hornsby. The forum was attended by representatives of business across the board. The honourable member for Gosford addressed the gathering, as did a representative of the State Chamber of Commerce. It was a very successful evening.
The message from that gathering was loud and clear: businesses want to keep employees safe and conduct their daily operations with that in mind. They do not wantonly create situations where employees and visitors are not safe in workplaces. The feedback from employers and managers at the forum was that they support workplace safety and safe workplaces for employees. Everyone acknowledged, as has been mentioned, that it is just impossible to provide workplaces that are totally hazard free for 100 per cent of the time.
It is worth noting that existing legislation covers the main intent of the bill before the House. Questions need to be asked about the need to rush this legislation through. First, we should have the statutory review of occupational health and safety legislation, then consider what else needs to be done. I have been approached by a number of voluntary board members who are gravely concerned about the impact of this legislation on them. One of the voluntary organisations, which provides transport services in the Hornsby and Ku-ring-gai area, is seriously considering not providing any sort of service to the community should any bills such as this become part of the State's legislation. I would like to quote from a press release by Ken Phillips, under the auspice of the Institute of Public Affairs, entitled "Guilty until proved innocent". It is dated Tuesday 23 November 2004, and says, in part:
Most people think that if they did something that led to the injury or death of a person and they were charged by the police with the prospect of going to jail, that normal criminal justice processes would apply, but this is not the case in NSW.
In 2000, the Carr government introduced laws that stripped away full rights to normal justice and now they want to go further. …
Under the existing NSW arrangements if there is an accident at a worksite managers or executives of firms are charged in the industrial court and they are presumed guilty until proved otherwise. Incredibly, they have to prove they are innocent. They can be charged with the same offence a second time even if found innocent at a first trial. If found guilty, and another accident occurs several years later, they can face the prospect of jail.
In October the Carr government introduced an amendment, the Workplace Fatalities Bill, which would mean that if a death occurs on a worksite, jail is an immediate prospect. Rights of appeal to the criminal justice system are restricted.
The Carr government says this is to catch "rogue employers", but the experience of litigation under the present law suggests something else. …
Presumption of innocence and trial by jury in courts that are experienced and competent in criminal matters are key pillars of a fair, just and equitable society ...
This approach to jailing people without the normal protection of criminal justice has come following pressure from the union movement. It seems to be an approach to law based on an eye for an eye rather than community principles of justice.
In another press release, of Tuesday 12 April 2005, entitled "Work Safety Laws are one-sided and unjust", Ken Phillips said:
How is it that New South Wales work safety laws arguably breach human rights principles and international work safety obligations, and of the other states?
On 26th March this year Australia's occupational health and safety obligations under International Labour Organisation Convention 155 came into effect. Australia's ratification of C155 requires that our OHS laws impose obligations on parties at work given what each person controls, judged by what is reasonably practicable to do. …
NSW breaches international obligations. The NSW Occupational Health and Safety Act 2000 holds employers and independent contractors guilty of OHS offences whether they controlled a situation or not. The fact of an OHS breach occurring causes guilt to be applied. If a company is held to be guilty the managers are automatically held to be guilty. Judgment of what was 'reasonably practicable' is contorted by being limited to defence against preordained guilt. Innocent people will surely go to jail. …
In NSW employers, their managers and independent contractors can be jailed but employees cannot. When looking to convict someone NSW has thrown out human rights and justice principles. There is no trial before a jury, the Industrial Relations Commission passes judgment, there is no right of appeal through the justice system and the burden of proof of innocence is on the accused.
Some of the concerns about the bill before the House relate to issues associated with the definition of "reckless". Also, how can employers enforce rules on those who flout the rules? Some people will not obey safety rules, or in some instances do not use common sense, despite attending occupational health and safety sessions and being subject to all sorts of codes of practice in the workplace. How can employers be held responsible for those who do not abide by measures put in place to protect their safety? There are many things wrong with the Occupational Health and Safety Amendment (Workplace Deaths) Bill, and I look forward to debate in Committee on the amendments to the bill.
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [5.58 p.m.]: I will make a brief contribution to the debate. Like other honourable members, I hosted a forum on the legislation when the draft bill was introduced. There was a lot of concern in the small business community about the content of that draft bill. In passing, I compliment the shadow Minister, the honourable member for Gosford, on his forensic analysis of the original draft bill, on the information that he provided to other members, and on the awareness that he was able to bring to the import of the detail of the bill. I do not think we should give the Government too much credit for the changes to the draft legislation. Rather, this was a good example of local members highlighting in their communities what was in the draft legislation and, having done so, drawing on feedback from the community.
Most employers were absolutely horrified when they found out the detail of the bill. I genuinely believe that most employers had no idea that the legislation was so draconian. However, the Government has amended the legislation to remove a few of the most obnoxious clauses, but two concerns remain. The first is that a person can be convicted of causing a death in a workplace without a trial by jury. The tradition in our justice system is that under the criminal law a person who is charged with causing the death of another person is entitled to a trial by jury. One of the problems with the legislation is that it is not covered by the criminal law but by the occupational health and safety legislation, which means that there is no presumption of trial by jury. The Government should consider the constructive amendment we will move to give the person who is charged with causing another person's death the right to a trial by jury. It is not unreasonable and it is consistent with the wider jurisdiction of our criminal law.
The second concern is that, under the changed arrangements, the Minister can give consent for a union to bring a charge and the union will receive half of the fine. Although that has been part of the legislation for many years, most of us and most employers in my electorate and, I am sure, across the State, were surprised by that provision. Our concern is whether we should continue to allow a union to bring charges in those circumstances. The WorkCover authority, much like the Director of Public Prosecutions in criminal cases, should bring the charge. Continuing to give unions half the fine will provide an incentive for them to bring charges, particularly when their membership is declining and they need to raise money to continue their operations.
In this day and age it is inappropriate to maintain that type of clause. I urge the Government to consider deleting, rather than modifying, that clause. The Government will argue that the union can bring an action only with the consent of the Minister. I point out that every single member on the other side of the House must be a union member. Many people, including me, were not aware that members of the Australian Labor Party cannot stand for preselection if they are not members of a union. By definition the Minister at the table, the Minister for Energy and Utilities, has to be a member of a union.
Mr Frank Sartor: You are not suggesting that a Minister would act partially as a result of that?
Mr DONALD PAGE: I am suggesting that there is no guarantee that a Minister will not act partially. A natural conflict of interest is built in because one has to be a member of a union to be a Minister in a Labor government. The potential for conflict of interest is very real. The Minister will have to arbitrate as to whether the union can bring the action. I urge the Government to reconsider that issue. We will move amendments in Committee in relation to trial by jury and the continuation of the inappropriate practice of unions bringing actions against employers. No-one supports any employer who acts irresponsibly or who does not support safe workplaces. We certainly do not support rogue employers who do not provide safe workplaces.
Mr GREG APLIN (Albury) [6.04 p.m.]: I speak in opposition to the Occupational Health and Safety (Workplace Deaths) Bill as it stands, a bill which makes it an offence for a person who owes a duty under part 2 of the Occupational Health and Safety Act 2000 to engage in reckless conduct that causes death at a workplace. The bill inserts proposed part 2A into the Occupational Health and Safety Act, which provides that a person whose conduct causes the death of another person at any place of work, who owes a duty under part 2 of the Occupational Health and Safety Act with respect to the health or safety of that person engaging in that conduct and who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct is guilty of an offence. The proposed offence carries a maximum penalty of 15,000 penalty points, which amounts to $1,650,000 in the case of a corporation or imprisonment for five years or, in the case of an individual, 1,500 penalty points, currently worth $165,000 and the possibility of imprisonment for five years.
Generally, what we are looking at here is the creation by part 2 of the Occupational Health and Safety Act of a duty to ensure that workplaces are safe and without risk to health. The duties are owed by—and this is important—employers, self-employed persons, controllers of work premises, plants or substances, and designers, manufacturers and suppliers of plant and substances. Obviously, the first matter that needs to be drawn from that is the need for a definition in the bill, rather than in some fleeting remark by a Minister in this House, of the term "recklessness". The term needs to be defined and there needs to be certainty, which is currently lacking. With regard to defences, given the magnitude of the penalties, including custodial sentences, and the gravity of the alleged offences to be covered, it is important in our view that proper regard be given to the actions of the employee in determining whether an offence is proven, not only in determination of the penalty. No-one can deny that all workplaces in New South Wales should be safe places in which to work or that an employer's responsibility is to make the workplace under his or her control as safe as is realistically possible.
However, commonsense and life experience tells us that workplaces, like all other places in our community, are affected not only by the actions and inactions of employers, managers and supervisors but also by the employees working in that environment, union officials and visitors as well as other extraneous factors, many of which are outside the control or influence of the employer. Regrettably, the current occupational health and safety legislation applying in New South Wales, which will be made even more draconian by the bill, imposes upon employers obligations backed by severe criminal penalties which defy simple logic. Ignoring commonsense and life experience, the New South Wales legislation seeks to impose an onus or responsibility upon the employer, manager or supervisor to control the workplace environment whilst, at the same time, effectively absolving other actors in that environment of their responsibility. We live in a community where, in most other circumstances, the ethic of personal responsibility is constantly and, quite properly, recognised. In the words of the Managing Director of Peel Machinery:
Most in our community recognised the logic behind the Tort Reform Legislation and the need to move away from the approach of blame shifting for personal actions. Self evidently there is, in the Tort Reform Legislation, an acknowledgement that we live in a highly educated and intelligent society where individuals should not blame others for poor judgment and actions.
It is not unreasonable therefore to ask, why is personal responsibility a recognised fact when a person dives into the surf, or drives a car, but, when a person enters his/her workplace that responsibility is transferred to the employer, manager or supervisor?
Therefore, the argument runs:
Regrettably the OH & S Legislation runs contrary to the insight shown by the Government in its Tort Reform Legislation. The current OH & S legislation seeks to sheet home to the employer criminal responsibility for death or injury in the workplace, notwithstanding the actions of others, simply because of the employment relationship.
One could look at the realities of the situation over the past 12 years and note that industrial fatalities decreased by 43 per cent from 244 in 1988-89 to 139 in 2000-01. Of course, any reduction in fatalities is welcomed. A rate of zero would be better, but the question is whether gaol sentences will improve the rate of decline. Self-evidently, the answer is no. Let me examine what would happen to small businesses if proprietors go to gaol as a result of this bill. The small businesses would close down with a consequent loss of employment. What would happen to the dependants of the gaoled employer? The answer again is self-evident.
In many ways this legislation will make New South Wales even less competitive compared to other States because if this legislation is enacted, based on the 2000-01 rate when 139 persons would have been convicted and sentenced to a period of five years imprisonment, the current rate of depletion in the ranks of management as a result of convictions would be five times the 2000-01 rate, which is 695. That rate will rise if more than one person is convicted as a result of an incident. To place this matter into perspective and sheet home the responsibility to the Government, I point out that approximately 20 people die each year in New South Wales on the railways, so a consequence of this bill would be that, over a five-year period, a large percentage of the State Rail managers would not be at work. But the bill's implications extend way beyond State Rail or any individual enterprise.
Supposedly, the bill will apply only to rogue employers, but it could be used to prosecute any taxi operator who has the misfortune of experiencing a workplace fatality. It would increasingly require them to do what is impossible—display predictive capabilities regarding workplace risks and outcomes—and be accountable for the behaviour and actions of drivers who are ultimately free to work where and how they choose. The New South Wales Country Taxi Operators Association points out that taxi drivers work on public roads and in other public areas that are clearly beyond a taxi operator's ability to influence or make safe. Moreover, the Roads and Traffic Authority [RTA] may be implicated. Recently I received a letter from Peter Drummond who is a licensed real estate agent in Albury. He stated:
We are a real estate business operating in ... Albury ... for the past 25 years. Over that time the business has provided employment to many people; we currently employ 11 employees.
We are a company which takes its corporate and community responsibilities seriously. Our company has over many years been involved in development of training programs, industry promotion, work experience and community services such as fundraising for many worthy appeals. We encourage our staff to take their community responsibilities seriously and participate in helping others.
We are completely committed to providing safe work and a safe workplace. Safety is a responsibility which we treat extremely seriously. We discuss [occupational health and safety] … matters at all our management meetings and endeavour to keep up to date on ... what is required.
We write to express our extreme dissatisfaction with current safety laws in NSW and the proposed amendments to the [Occupational Health and Safety] … Act 2000. The requirement of the current NSW [Occupational Health and Safety] … Act to "ensure" safety means that this legislation already places us in the impossible position of being continually open to prosecution, as the exposure of any employee to any risk means that we have failed to meet our legal obligation.
Even now with our best efforts at risk management this is simply impractical and unachievable and higher fines and gaol sentences will not make it easier to eliminate risks and improve safety, just easier for us to be sent to gaol.
The clarion call being made by this letter and from others to which I will refer is that a comprehensive review of the Occupational Health and Safety Act is required to address employers' concerns about the application, enforcement and interpretation of the Occupational Health and Safety Act 2000. Let me examine the situation with respect to farms. A farmer wrote to me because he is exceptionally concerned over the predicament in which he finds himself. His letter stated:
I wish to stress the difficulties [in which] this poor legislation places the viability of our small "one-man" enterprise.
The current legislation requires farmers to ensure that their workplace is safe, but as I have shown by reference to the letter from the Albury real estate agent, such a guarantee is impossible. The farmer who wrote to me, like everybody else in this State, firmly believes that workplaces must be as safe as practicable—and the key phrase is "as safe as practicable". He stated:
No worker should be at risk of injury or death. But such a guarantee from an employer as it is currently written in the O.H & S act of 2000 is impossible.
That point is made time and time again by people who write to members of the Opposition and by speakers on the Opposition side of the Chamber. He goes on to state:
[A case in] point is the entrance to our farm. This drive way is 1100 metres long. Half its length is lined with old trees. WorkCover will consider this entrance a "workplace entrance" so any one driving on this gravel road is controlled by the current O. H & S legislation. If an accident occurs—
heaven help him if it is a fatal accident—
on this gravel road due to a driver travelling too fast, or losing control of the car, hitting a tree, et cetera, we [the farmers] are liable for damages under this government's legislation.
He called in a WorkCover inspector to help to clarify the situation and give him some advice. The WorkCover inspector was seriously helpful. He suggested that the farmer could chop down the trees, put industrial padding around the trees, make a new treeless driveway, or he could lock the gates and escort all visitors entering the farm from the main road up the drive to avoid any risk of an accident. I am sure all honourable members would agree that they are very practical solutions, but these measures show the absolutely ridiculous situation that is being foisted upon farmers: They believe through advice from WorkCover that this is the position in which they will find themselves. It is up to the Government to clarify the situation and put them at their ease. This legislative stupidity goes so far as to apply to people who are gathering wood on the farmer's land, not as employees or contractors, but to all visitors. This legislation will apply to all people who may venture onto the property.
The situation in which the farmer is placed is that he will have to check equipment to ensure that it has all the right safety gear, carry out a risk assessment on any paddock that people are likely to enter, and undertake a workflow analysis on what is going to happen. All of this has to happen in case there is an accident—and heaven help him if it is a fatal accident—just so that the farmer may have some sort of defence to any incident that may occur on his farm. A farm is declared to be a work site under occupational health and safety legislation. Apparently it is immaterial that injury occurs to someone who is not even employed by a farmer because the farmer will be caught anyway. Because a farm is effectively a work site, the farmer will be liable. The farmer who wrote to me also informed me that he has placed a sign at the entrance to his farm. I am not sure whether he is serious about the sign, but it is certainly what he is contemplating. The sign will state:
Warning, all visitors must report to the owner manager. All visitors must comply with property O. H & S policy. Entry is prohibited without permission and without obtaining notification of any hazards.
On top of all this, all entry gates are to be locked and a speed sign has to be erected on the roads. Thus he now needs a locked gate to regulate entry. He must induct any visitors, work related or not. With a compliance program for occupational health and safety, he asks how a sole operator farmer such as he will be able to carry out his work. He even has to induct the electricity meter reader who he cannot keep locked out because compliance with the occupational health and safety legislation conflicts with the Electricity Act. Workers compensation and regulatory burdens prevent him from employing any help. The situation is forcing him to live like a gaoled prisoner on his own farm, thanks to lawyers, stupid politicians and appalling judicial activism. He states, "… we are now property prisoners". He also set out a problem that he has with Parlour Creek, which is a full-blown river in all but name. It is an anabranch of the Murray River and it runs across his title, his farm and importantly his workplace. His letter asks:
If a boat travelling on this watercourse carrying the public, still a workplace visitor—
or perhaps an inspector from the Waterways Authority—
hits a dead tree or log left in the water, are we liable for any injury or death—
again, heaven help them—
that may occur? Under O. H & S existing definitions they are on our workplace, have not crossed a fence thus are not trespassing and should be entitled to O. H & S protection. Should we be insisting that all fallen wood and "travel hazards" be removed by State Water so that they have a limited risk to any injury or death under O. H & S on this water course, our farm, and thus our workplace.
As I suggested in relation to State Rail that there were also implications for the RTA, now the Waterways Authority may be involved. But where does the risk end? Who is ultimately responsible? The letter goes on to state:
Would such unilateral action on our behalf conflict with existing environmental legislation and lead to prosecution?
This letter proves that this legislation is a minefield.
Should we be arresting any person on this watercourse for trespass to protect ourselves? With existing O.H & S workplace responsibility where does public liability end and O.H & S responsibility begin?
If this is the extent to which legislation is reaching regarding work place safety in NSW, then shut down the State. God help us because He is the only one left with any common sense.
Debate adjourned on motion by Ms Katrina Hodgkinson.