WORK HEALTH AND SAFETY (SELF-INCRIMINATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2013.)

The Hon. I.F. EVANS (Davenport) (15:48): We are about to debate the government's amendments to the Work Health and Safety Act.

An honourable member interjecting:

The Hon. I.F. EVANS: I assume the Minister for Industrial Relations is on his way; otherwise the Minister for Finance might have fun answering the questions. This is a bill brought before the house only weeks after the government had brought into play the new Work Health and Safety Act which commenced on 1 January this year. The Work Health and Safety Act, which this bill seeks to amend, is the result of well over a year's worth of negotiations, discussions and debate, and many years of debate at the commonwealth level where they sought to get a harmonised approach, Australia-wide, to work health and safety. The outcome is there is not a harmonised approach Australia-wide—different jurisdictions have done different things—and this amendment seeks to deal with section 172 of the new act. The new act has only been in place since 1 January this year.

When the minister came in and dropped the amendments on the table initially the industry groups were horrified, and quite rightly so, because the minister had dropped the amendments on the table without consulting the key industry groups. There was quite a lot of disquiet and anger amongst the industry groups because they had just gone through an enormous process of negotiating the whole Work Health and Safety Bill, made concessions and undertook negotiations on certain wording and certain clauses to achieve an agreed outcome. They were horrified that only a matter of weeks after that bill was passed and then commenced on 1 January the government, without consultation, walked in and dropped on the table an amendment to section 172, which is all about the protection that is offered with regard to self-incrimination for the provision of evidence or documents.

It would not be an unfair characterisation to say that some of the industry groups were concerned that they had been dudded—that after 15 to 18 months of consultation all of a sudden the government walk in and say, 'Well, even though we have negotiated all of these outcomes, here we are a matter of weeks later and we are now going to come in and try and change this particular provision.' The opposition stood firm and said that it was not prepared to debate it unless the government undertook some consultation process, so the government then went out and undertook some consultation process with the industry groups.

The government ended up writing to the industry groups offering to amend its own amendment, and it offered three options about possible wording to amend its own amendment. Having spent many months/years negotiating the outcome of the legislation and having got the legislation up and running on 1 July, the government dropped on the table its own amendment in relation to section 172, and then when it is encouraged (to put it mildly) to go and consult the industry groups it actually ends up writing to the industry groups with three different provisions. We are now about to debate this particular bill in which the government is going to move its own amendment to its own bill to try to fix a problem to do with section 172.

In fairness to this minister—the current Minister for Industrial Relations, the Deputy Premier—he was not in charge of the negotiations of this particular bill when it went through the parliament. I took the opportunity to get a briefing from the government on this particular bill and the proposed amendment because, as the house knows, I am no industrial relations lawyer, I am just a humble builder who ended up in parliament. What absolutely staggered me was that the government proposed amendments to section 172 in the original debate in the other place. There were three people who proposed exactly the same amendment to section 172. They were the Hon. John Darley, the then minister (the Hon. Russell Wortley) and the Hon. Rob Lucas for the opposition. They all tabled exactly the same amendment to section 172, which ended up being adopted by the upper house and put into the act, and it is that provision we are seeking to amend today.

When I got a briefing from the government officers—and I appreciate the briefing from the government officers. We had a lot of fun trying to give me an industrial relations lesson in half an hour on how these matters work, and I appreciate them putting up with me and all my nuisance questions (probably to them), but I am a simpleton in these matters and I like to understand how these things work. What happened was that we discovered that, on the amendment to section 172 tabled by the government and moved ultimately by the Hon. Rob Lucas, the government never sought legal advice. It never sought crown law advice on that particular amendment.

It absolutely staggers me that the government can be negotiating this particular bill for basically over a year in public debate, with all the consultation that was held upstairs for many months and, on the key clause about self-incrimination and whether individuals are exposed to providing evidence and incriminating themselves, the minister himself, on behalf of the government, tables the amendment, and the opposition tables the amendment—because that is the one the industry groups want and it is all negotiated—and the government never took the opportunity to get crown law advice.

So the bill is passed, all in good faith, because we all understand; they all debate what the bill is going to do and they all compromise and negotiate on that basis. Lo and behold, five or six weeks after the bill starts, the government is back here saying, 'Well, guess what? That clause has got a problem with it.' The problem that the government says it has with the clause is open to debate. Whether it needs amendment or not is open to debate, because what has happened is that we have asked the government, 'Well, okay, what's the problem?'

The government's advice essentially is, in broad terms, that there are three cases at the time of the advice—there might have been more since, but there were three cases at the time of the briefing I had—where lawyers have advised their clients to say they are not going to answer questions because it might incriminate them and the lawyers, or the people who are seeking this defence are corporations, not necessarily individuals. In two of those cases I think it is a corporation seeking that defence. On the other one, I am not convinced whether it is a corporation or an individual; we will put that one aside for a second.

There are a couple of them at least where lawyers have advised a company to say, 'Look, under this new provision—section 172—there is a grey area as to whether the self-incrimination protection applies to corporations and not just individuals.' In section 172, the word that has been put in is the word 'person' as distinct from 'natural person' or 'individual'. The word 'person' is not defined in the Work Health and Safety Act. So you go back to the Acts Interpretation Act and the word 'person' can mean a natural person or, indeed, a corporation.

So there is some dispute in the private sector as to whether section 172, because it uses the word 'person' and not 'natural person' or 'individual', therefore provides a defence to corporations to say, 'Well, I am actually not going to give you the information you seek because it might incriminate not only the individuals but the corporation.' The reason I say there is some dispute about this is the simple fact is that the government has blinked.

What has happened is that the government has brought in a new law and, five or six weeks after the law has been brought in, the advice has been given by these lawyers to the two or three cases, that I have talked about, and the government has decided not to test the legislation in a court. I am not even sure if they threatened to take them to court—I might ask that of the minister in due course—but certainly they have not taken it to court to get the court's interpretation as to what 172 means.

There is some dispute amongst some highly qualified lawyers in the private sector who argue that, in actual fact, section 172 does not need amending at all; it is as the parliament intended. So the government has decided it is going to amend section 172 and it has floated, as I say, three options to amend section 172. One was to leave it as the original bill intended; the other option, from memory, was to replace the word 'person' with 'natural person'; and another option was to replace the word 'person' with the word 'individual. Now, as luck would have it, I consulted on that particular question because the government sent me the letter that they'd sent out to industry groups, so I thought I would ask the industry groups what they thought was the right wording. As luck would have it, believe it or not, the industry groups are quite divided on whether it should be 'person' 'natural person' or 'individual'.

This is important because this particular clause—and there was some suspicion from the industry groups when this amendment came in initially, because it is the central clause to protect individuals from self-incrimination, and this is the clause they seek to amend. So, this clause provides an individual the opportunity not to answer questions and not to be interviewed and produce documents, because doing so may incriminate the individual, and so there is—as I understand it, and I will ask the minister this to confirm—a defence that allows individuals to say 'Well, I'm not going to do that because it might self-incriminate me.'

What has been established through all this process is that the common law position, the government would argue and the Law Society would argue, is that the right to a defence for self-incrimination applies to individuals only and not corporations. There is a High Court case EPA v Caltex, if my memory serves me right, which establishes this principle that corporations have no defence to self-incrimination, so I think that that has been established, and then it is a matter of, if you are going to amend the act at all, how are you going to amend it.

The minister will be pleased to know that the opposition is not about to try and rewrite this particular provision from opposition. We are going to bow to the legal superiority of the government resources, and if the government thinks that this wording is going to fix this particular matter, then the government is going to have its amendment, because the opposition has consulted, the government has consulted, and the government has come up with this particular solution to this particular problem.

Far be it from me to cast any doubt on the government's solution because I am not legally trained like the minister, but I did note with interest that the South Australian Law Society has some concerns with the government's amendment—not the principle of Caltex v EPA in the High Court, with which I know the Attorney-General would be familiar, not with that particular principle—what they are concerned about is whether the amendment should read 'individual' or 'natural person'. The government has opted for the amendment to read 'individual'. The Law Society says:

I refer to your letter of 2 April 2013 inviting the Shadow Treasurer, the Hon. Iain Evans MP, to consider the Government's proposed amendment to s.172 of the Work, Health and Safety (Self-Incrimination) Amendment Bill 2013.

This was a letter to the Attorney-General so I am sure the Attorney-General is familiar with it.

For your information, Mr Evans provided the Society with a copy of your letter for the purposes of consultation and accordingly we make the comments outlined below. We have also provided Mr Evans with a copy of this letter. Thank you for the opportunity to give comments on the bill. The matter was referred to the Society's Industrial Relations Committee—

Mr Speaker, which is obviously a highly regarded committee—

and Criminal Law Committee. Due to time constraints, this submission incorporates comments from the Criminal Law Committee only.

3. In our previous submission of 19 February 2013, the Society noted that under common law, the privilege against self-incrimination does not apply to corporations, however the current wording of s172 of the Work Health and Safety Act 2012 (the Act) has been interpreted by some parties to suggest that the privilege applies to both corporations and individuals.

I note that the Law Society does not say at that point that they agree with that, they just note that some people have taken that view. It continues:

4. The Bill initially proposed to delete the word 'A person' and replace it with 'A natural person' so as to limit the privilege against self-incrimination to natural persons only. Following consultation, the Government proposes to amend s172 as follows:

'An individual is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or a document, may tend to incriminate that individual or expose that individual to a penalty.'

5. The Society understands that the revised wording is favoured by local businesses and employer organisations in preference to the initial proposed wording, however it is not immediately apparent why.

6. In our view—

which is the Law Society's view—

the phrase 'natural person' is clear and unambiguous. The same we suggest, cannot be said of the term 'individual'.

7. There is a risk that 'individual' may be interpreted by some to mean all legal entities, including body corporates. In saying this, we acknowledge that the term 'individual' in Commonwealth legislation means a natural person: s2B Acts Interpretations Act 1901 (Cth). However, it is worth noting that 'individual' is there defined to mean 'natural person'. There is no clearer statement of the definitive nature of the phrase 'natural person' than for it to be used to define another term.

8. Our concern—

the Law Society's concern—

is that the term 'individual' may lead to body corporates asserting that they are covered by s172 on the basis that the term encompasses body corporates. In our view, there is no room for such interpretation if 'natural person' is used.

9. Accordingly the Society submits that the proposed amendment to s172 of the Act tabled in the House of Assembly on 6 February 2013 is preferred because it is clear and unambiguous.

So, that is the legal representative's view on this particular matter; but as I was saying, I am not legally trained. The opposition is not about to try to rewrite this legislation. The government has access to the crown law department which has, I cannot remember how many hundreds of crown law officers, but certainly more than we have got in opposition, and we are going to accept the government's advice that this fixes the problem.

This all relates to section 172. This was subject to a lot of discussion in the other place. I took the opportunity to contact the Hon. Dennis Hood and the Hon. John Darley to check that in their negotiations in their debate it was not their intention to give corporations the power or the defence of self-incrimination, and they advised me that it was not their intention, and I thank them for that advice.

During the committee stage I will be asking the Attorney if he has taken crown law advice this time, because when the Hon. Russell Wortley tabled the original amendment to this bill upstairs no crown law advice was taken at that time, and that might be why we are here. I also want to explore this question in relation to how this provision now works for a sole director company. So, if Iain Evans, individual, is the sole director of Iain Evans Pty Ltd (a corporation) and an incident happens in my workplace, how does this provision actually work? If the SafeWork officers come to me and seek to interview and consult me they are caught initially by section 171. Section 171 describes what happens in relation to a person which includes a corporation or an individual (it doesn't say 'natural person' but 'person'). It describes what happens when the inspector comes into the site and wishes to conduct an interview.

What I want clarified is this. Iain Evans as an individual is the sole director of a company. An incident happens at my workplace, the SafeWork inspectors come onto my property and they seek to interview me as an individual. I say, 'Well, because of the detailed argument in the House of Assembly and the agreement between the houses and because of common law and the high court case of EPA v Caltex, I am actually not going to answer that question because it might self-incriminate me. So I don't have to answer it as an individual, I don't have to provide documents and I don't have to continue the interview.' At that point the SafeWork investigator can go back to the office and come back in and decide they are going to seek information from Iain Evans Pty Ltd.

At this point I start to seek clarification. Can Iain Evans as an individual, as the sole director of Iain Evans Pty Ltd, refuse to answer questions? If the corporation hands over the documents or answers to the questions, then that exposes me as the individual to prosecution or penalty. So, how the line is drawn between Iain Evans the individual and Iain Evans the corporation becomes the issue.

Section 172 as it presently stands extends to all matters that are outlined in section 171 which is the provision that deals with the interview process and the entry onto the property by the SafeWork inspectors. Section 171 applies to requests from the inspector to produce documents and any questions including answering who has custody of a document. My understanding of it is that corporations cannot give oral evidence. Corporations can only give documentary evidence. I will be seeking clarification of that in the committee stage.

The other issue where I am not sure is in a corporation, can the officers legally obtain information from an officer who is not authorised to provide that information? Are they obligated to only seek the information from officers as authorised? How does that process work? How do the SafeWork inspectors establish who is an authorised officer within the corporation to give the documentary evidence to the SafeWork inspectors?

The other issue that I want clarified is as it was explained to me in the briefing. As I understood the briefing it is quite possible for the SafeWork SA inspectors to ask me questions as an individual. I take the self-incrimination defence. They then rerun the questions to the corporation. Having established the facts out of the corporation and knowing where the problems are occurring, they then try to prove those errors and problems through other avenues. I was advised that was 'normal investigative practice'. I want to get that on the record. If the corporation cooperates with the SafeWork investigators, is it possible for me as an individual to be subject to penalty?

If the corporation is approached by a SafeWork investigator and they seek all these documents about a particular incident and some offence has occurred, does that mean that I, as the individual director, then become liable for some penalty so, even though I have taken the self-incrimination defence and the corporation has provided the documents, I still get the penalty? I am not quite sure how the self-incrimination defence then helps me in those circumstances if I end up with the offence anyway. I am trying to establish exactly how that works.

The other question I will put to the Attorney during the committee stage is: when you approach a corporation can l, as an individual, refuse to provide information because it would incriminate me? Even though you are approaching the corporation I am still the individual providing it, so at what point do I lose my individual rights?

That is the background to this particular debate. It is regrettable, in my view, that on such an important piece of legislation and in such an important clause the then minister (and I will just repeat that it was not this minister) failed to get crown law advice on the impact of an amendment that the minister was going to move himself in another place. I assume that amendment went through cabinet, because quite often a lot of the amendments go through cabinet/caucus to get into the parliament. They are the issues.

In fairness to the industry associations, it is not unanimous; industry support for these amendments is nowhere near unanimous. There is a mixture of 'The government said there would be a review in 12 months' time and we should not change anything for 12 months.' The government's response to that in the briefing was that that means that every lawyer in Adelaide will use the self-incrimination defence for both corporations and individuals and that would back up the case load or the investigation load. Then, at some point, the government would have to test it in a court and take one of the cases on and run it through the court. The government argues that it does not want to do that, for whatever reason.

Other industry groups say that they are reluctant to have it amended. Rather than the blanket wait until the 12-month review there are others who say that they would prefer to wait for the 12-month review but if it is going to be amended then they probably think the wording of 'individual' is the amendment that should be agreed to. There are other industry groups that say that there has never been a defence of self-incrimination for corporations; that was never the intent and if there is a grey area should be covered off. Those groups are generally in the majority.

The opposition is not going to seek to defeat the bill or the amendment. It is going to let the government have its wording, and we hope that fixes this particular matter. There are only one or two clauses in the bill, and we are hoping the Attorney might be generous in the number of questions we can ask, because there are a number of matters and three questions per clause just will not get there and I do want to get on the record exactly how this works. With those few comments, we look forward to the committee stage.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:18): I thank the member for Davenport for his contribution. I indicate that I am happy to answer, to the best of my capability, every question the member for Davenport might wish to ask in the committee stage and there will not be any of that business about saying you only have three questions and all that nonsense. I am happy to do my best to answer those questions.

Can I say that I was a little bit surprised myself when it was brought to my attention that this problem existed at all, because it has always been the case, as I understand it, that provisions such as this apply to natural persons and not to corporations, as the member for Davenport has already said. However, I have been advised that there is ambiguity about this, and, whilst there is ambiguity, that means there are some people who may try to chance their arm by refusing to cooperate and behaving in a way that is obviously not conducive to the smooth operation of the legislation. Having been presented with that advice, I really thought I had no alternative other than to bring the matter to parliament and bring it to parliament as quickly as possible.

The second thing is the question as to whether or not the words 'natural person' or 'individual' would be better. I have to confess—and I confess to a number of things, including being a lawyer—that as far as I am concerned, 'natural person' is the perfect formulation which is why my initial preference was to use the terminology 'natural person'. The reason that we are using the word 'individual' is that, having spoken to many bodies, many industry groups and so forth, all of whom had their own legal advice, they came to the view that they did not really want to argue about the principle—because none of them I think were seriously contending that companies should be immune—but they preferred the formulation 'individual' to the formulation 'natural person'.

I have asked those who advise me to check whether there is any material difference in law between the use of the words 'natural person' and the use of the word 'individual'. They say that they are, in effect, interchangeable; that is the advice I have received. Personally, if I were picking, I would go for 'natural person', but because we have gone through a consultation process and we have some degree of consensus about this, and that degree of consensus has formed around one word rather than another, I am not going to be pedantic about it and say that I insist on my view and not the consensus view, given that the legal advice that I have received is that there is no material difference between the two.

In relation to the Law Society, therefore, in general terms I agree with what the Law Society had to say, although my advice is that their concerns about the word 'individual' being ambiguous are unfounded. I am left with a position where the debate about 'natural person' and 'individual' is really one of style or preference, or so I am told. My personal preference, being a bit of a traditionalist, would be 'natural person' but, as I said, we have spoken to a whole bunch of people. The preference and the undertaking we gave to those people was that we would advance the terminology 'individual' and we are keeping faith with that undertaking and therefore advancing that terminology.

However I do so—and I emphasise this to the member of the Davenport—only on the basis that I am advised that the material difference between the word 'individual' and 'natural person' is zero in this act. Were that not the case, I would not be prepared to do this. It is only because I have that advice that I am prepared to do this as 'individual' rather than 'natural person'. In the face of that advice—as you say, several hundred brains of enormous capability thinking about this have come to this consensus position—who am I to argue with them? So, I am not going to.

The Hon. I.F. Evans: You're the Attorney.

The Hon. J.R. RAU: I know, but anyway, that is what I have to say about that bit; so, hopefully, we do not have to spend too long on that. Another matter that the honourable member raised was: how do you know whether you are being spoken to as an individual or as a corporation? If you look at 173 of the legislation, this requires a certain procedure to be gone through before questions are put to a person pursuant to an investigation. Section 173 provides that:

(1) Before requiring a person to answer a question or provide information or a document under this Part, an inspector must—

not 'may': 'must'—

(a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and

(b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and

(c) advise the person about the effect of section 172—

in other words, advise them of their rights in respect of the effects on an individual of answering those questions, and then advise about the effects of section 269, which is legal professional privilege. The way in which this would pan out would basically be that, in most instances, it would not be particularly confusing because the company would be bigger than the particular person to whom the inspector was talking.

The member for Davenport raises a very important issue about a sole trader who has decided, for example, to have a corporate structure. In that sense, I think that we need to bear in mind a couple of things. The first one is that there are two sets of penalties contained in this legislation. Obviously, you cannot imprison or hurt a company. We do not hurt anybody these days, of course. The member for Elder was here a while ago talking to me about a famous formulation about damage to the body or the soul. Either way, corporations have neither. So, the only way in which you can punish a corporation is by way of a fine or some restriction on their activity. An individual can be punished in a number of ways. They can be fined, yes, but they could also potentially be imprisoned.

The Hon. R.B. Such: Or elected to parliament.

The Hon. J.R. RAU: Or elected to parliament; the member for Fisher is quite right. The way in which I would see the matter proceeding in the hypothetical the member for Davenport raised would be something like this: the inspector turns up at the member for Davenport's premises and says, 'Rightio, I'm an inspector; here's my badge. There's been an accident here or an occupational health and safety issue. I want you to answer some questions. I must advise you about your rights under section 172. Section 172 provides that you as an individual are excused from providing any information or document under this part on the ground that the answer to that question might tend to incriminate you or expose you as a person to a penalty.'

At that point, you can say, 'Right. You ask your questions but, if I get to one I don't want to answer, I'm not going to answer it because of what you've just told me,' and you are perfectly entitled to do that. They might also say to you—and this is the bit where it probably gets a bit difficult, nonetheless it is real—'Okay. I'm now not asking you about you the individual. I'm seeking information about the activities of the company,' and then they might ask you some questions about the activities of the company, you having already made it clear that you are providing no information at all as an individual.

If we step back from this for a moment, under the Police Act—and the honourable member has been, I think, minister for police in the past and would have some familiarity with this—a police officer can be obliged by the commissioner to answer questions pertaining to a disciplinary matter and can be directed to answer questions pertaining to a disciplinary matter, but the answers provided to the commissioner, pursuant to a direction under that section, cannot be used against that member in other proceedings. That is, in effect, what we are dealing with here.

I know, in the case of a sole trader who is a company, that sounds a little bit artificial, but it is no more artificial, really, than the police officer who has the commissioner say to them, 'I direct you to tell me what you were doing, who you were speaking to, what was said, blah, blah, blah, on these occasions, because I have a charge against you for a disciplinary matter.' But the member knows, in answering those questions, that member is not disclosing information that the commissioner is then able to use against that member in any other proceedings.

The Hon. I.F. Evans interjecting:

The Hon. J.R. RAU: In the disciplinary proceeding, yes, but what I am trying to explain is that it is not an unusual thing for a direction to be given. Another example is in royal commissions. People can be directed to answer a question by a royal commissioner, for instance, but the consequence of them providing the answer to the royal commissioner pursuant to a direction of the royal commissioner is that that answer is not admissible in evidence against that person in other proceedings.

A similar example will exist under the ICAC when it is operational. The ICAC commissioner will be able to call somebody before the commission, if they have got an investigation under way, and they might be able to say to you, 'Mr Evans, I direct you to answer these questions,' and you can be imprisoned, potentially, for refusing to answer a question when directed to do so by the commissioner, but what can be done with your answer is a completely different matter. That answer cannot be used in evidence against you in criminal proceedings.

This happens all over the place. I have given a couple of examples. The last two are pretty well the same example, the ICAC and a royal commission, but I think the police disciplinary proceedings and the prosecution of a police officer for a criminal offence are equally valid examples. There is that distinction. In practice, what would happen? You would say, 'I'm not answering your question as an individual. I refuse on the ground it might incriminate me.' Okay; they say, 'I want this information about what the company was doing,' and you then provide certain information.

That information could lawfully only be used to prosecute the company, and the company could only be punished by way of a fine. Again, this problem exists in many places but, if you and the company are identical, then it comes out of the company's pocket or you pour the money into the company's pocket, or whatever, or the company cannot satisfy the fine, in which case it is the company that has not paid the fine, not you.

There is a distinction which I accept, in practical terms, starts to get very difficult to comprehend when you are down to a single entity being the only director, manager, shareholder and the only operator. I agree that at that point of singularity, if you like, some of these laws start to look a bit odd but, conceptually, they are quite clear. As soon as you get beyond that point of singularity where you have got a company which has more than one person in it and has employees and you get into a far clearer environment, and then when you have got the management on one side and the employees on the other, it is crystal clear.

I do not think the problem that we are dealing with here is unique to this legislation. Again, if an individual is called before the ICAC commissioner or a royal commission and the individual is directed to answer a question and therefore they are personally immune to any consequences through other legal avenues such as a criminal prosecution by reason of having given that information, if that same information is capable of prosecuting a company for that offence, there is no barrier now on that information being used for that purpose.

As I said, I know that at what I will call the point of singularity where it is all in the same space it is practically difficult to extract this, but the concept is relatively straightforward: you are wearing one hat as an individual and you are wearing another hat as a company. To the extent that the individual might be exposed to a penalty involving imprisonment, the critical difference is that this self-incrimination provision will mean that that person is not exposed to that possibility, because you cannot imprison a company and the only person who might be prosecuted by reason of that information might be the company, if that makes sense.

To take the member for Davenport's example again, we have the member for Davenport personally and then we have Iain Evans Pty Ltd. If they go to the member for Davenport and say, 'Please provide this information,' the member for Davenport says, 'Hang on, I have read section 172 and I am not going to provide that information. I don't have to and I refuse.' Then they say, 'Okay, fair enough, we are not asking you now because we are interested in in any way pursuing you Mr Evans. We want to ask you some questions about Iain Evans Pty Ltd.'

You then provide answers, and let's say those answers enable them to launch a prosecution. When the summons turns up, the name on that summons will not be Iain Evans, it will be Iain Evans Pty Ltd. Any conviction will be of Iain Evans Pty Ltd, not Iain Evans, and any penalty would be visited on Iain Evans Pty Ltd, not on Iain Evans.

I understand your point: that the distinction at that point where you and the company are virtually indistinguishable might be academic from your point of view, except you will not have a criminal record for that—you personally, member for Davenport. You would not personally have a criminal record for a breach of that provision, it would be the company that has a record for having been convicted for a breach of whatever. My advisers are happy with that. That is basically how it works, but if there are any more questions—I have probably gone on a bit. I think we need to go into committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. I.F. EVANS: Thank you for your explanation in the second reading. I will go back and revisit and clarify some of the issues so I am crystal clear. I am right with Iain Evans wearing a hat as an individual and the defence, and then we go to the corporation. Is it possible for the corporation to be interviewed—as in, can they stand there and interview me and ask me questions, and I answer as the corporation, or can the corporation only be asked questions by way of letter?

The Hon. J.R. RAU: I think the answer to that is that an authorised officer or competent officer of the corporation is the only way by which the corporation can communicate and it would be a matter, I guess, of whether the inspector was happy with written responses. I suspect that the most likely answer to your question is the inspector would say, 'Are you the authorised officer of the corporation authorised to speak for and on behalf of the corporation?' If you are the corporation, then you necessarily must be that person and they would then ask you whatever questions.

I have been advised that the chance of this sort of event occurring is pretty small because I do not believe it would be seen as being probably the best way to proceed, as a matter of course. Indeed, the idea is that assuming this goes through the parliament, there would be some sort of guideline issued to all of the inspectors about how they are to go about doing this business. I would be happy to talk to the member for Davenport about that and make sure that it is in plain language and comprehensible to all concerned.

The Hon. I.F. EVANS: So, my understanding of your answer is that if I am an authorised officer of the company, it is possible for me to be interviewed and asked questions.

The Hon. J.R. RAU: Correct.

The Hon. I.F. EVANS: The minister says on the record.

The Hon. J.R. RAU: As the company, not as you the human being.

The Hon. I.F. EVANS: Yes, I understand that. So, then at that point, if Iain Evans the company is answering a question that Iain Evans knows is going to lead to him being prosecuted if he was an individual, at that point, am I, as the company representative, able to say, 'I am not answering the question; I am taking the self-incrimination defence'?

The Hon. J.R. RAU: I think this is a highly academic question, but the answer is no, you are not, because you are then speaking as the company, not as you. In the hypothetical we have been discussing today, you would have already made it clear that you in your own private capacity as a human being are not saying anything to them. So, whatever information they get is information about the company, not information which is an admission of any type by you.

I should say that operationally, at that point, I am advised that they would stop; that SafeWork would not proceed at that point. I am advised they would not take that any further, but you are asking me the legal possibilities; I am giving you the answer. We are talking here in sort of, you know, 'What happens if a meteor hits earth tomorrow afternoon'—I think that is where we are at presently—but the legal answer to your question is as I have just given.

The Hon. I.F. EVANS: I am just trying to get on the record—for those who are not legally trained—a better understanding of how this works. So, at that point, if I am legally not entitled to take the individual's defence because I am speaking as a corporation, at that point, why would the SafeWork investigation stop and how then would they seek to continue the investigation?

The Hon. J.R. RAU: This is where I think they would have to stop because if you follow this through to the next couple of steps, the next step is they have some information from the company, from the authorised officer. In your hypothetical, not only is the company and the authorised officer and the individual all the same person, but the information they have incriminates that person. That is the hypothetical. Then they get to the question of proof. If they cannot prove it otherwise than through you, the only way they can prove anything against the company is through, in effect, calling you; the only way they can prove anything against the individual is through calling you.

As soon as you go in the witness box, you may be there because you are a director of the company but you are undoubtedly there as Iain Evans, the human being, and when you are asked the question, 'Didn't you do this or that?' you, in the court, would be able to say, 'I refuse to answer on the basis that the answer to that question would tend to incriminate me.' So, this is where they would probably back off, because the ultimate outcome would be that they would still have to rely on putting you in the box and, once you're in the box, the two hat routine does not work any more. It is down to one hat because the company is not in there of itself. You are in there representing the company, but you are also in there yourself, and that cannot be split up any further in a court case and, once again, you are able to refuse to answer the question on the basis that it might incriminate you.

The Hon. I.F. EVANS: So then, in this hypothetical meteor that is going to hit us tomorrow night, as the Attorney puts it, does that mean that in reality there will not be a prosecution of a sole-directed company because they are always going to go into the witness box and say, 'I'm wearing one hat not two.'? How then does SafeWork SA investigate and prosecute a sole-director company?

The Hon. J.R. RAU: It is a good question and the advice I have is that the likelihood in such a circumstance is that the inspector would move into the provisions under section 155 of the legislation whereby, as I understand it, they issue a request for information which you would then be able to take away, get legal advice on, and provide written responses to them on.

The Hon. I.F. EVANS: No disrespect, but this is a bit like drawing teeth. So, now I understand that if I am being interviewed, and I take the self-incrimination defence as an individual, I can then be interviewed as a corporation and, if I then say, 'Well, look, I am concerned that what I might say is going to incriminate me as an individual,' they go to section 155 where they will write to the corporation and seek information. At that point, I am the sole director, and I am the authorised officer providing the information, so at that point am I allowed to say that, even though I am the sole director wearing my corporation's hat, I am not prepared to provide you with the written information because it is going to potentially incriminate me as an individual?

The Hon. J.R. RAU: The short answer to your question is 'yes', for the reasons that we have just been through. I do not know much about the laws of physics but I am told that there is a thing called the singularity which is in the middle of a black hole and, at that point, all known laws of physics cease to operate. I think the member for Davenport has identified a point of singularity in this legislation at which, in practical terms, the whole scheme, for the reasons that we have just discussed, ceases to operate and, in effect, for all practical purposes, that person is protected from self-incrimination in either event.

But you see, at the moment we move out of that hypothetical space, the importance of having these protections becomes clear, if that makes sense. It is just that at that point, the absolute extreme end of the spectrum of possibility, it starts to become academic and produce potentially strange outcomes, for which reason I think in all practicality a single person who is trading as a sole director, shareholder and everything else, who takes the self-incrimination defence, is unlikely to hear any more about the matter. I have been answering this on the basis of legal possibilities, but I think we have explored why, from a practical point of view, it is unlikely to go anywhere.

The Hon. I.F. EVANS: Just for the record, I suspect it is far more common than the Attorney might think, because there are lots of little sub-contractors in the building industry who are sole traders, many of them who would be covered by the debate we are just having. I would suspect my brother is one with his plumbing business. So I think that, potentially, it could impact on far more people than the Attorney may give the question credit for.

The Hon. J.R. RAU: The other point about this is that it does also assume that there is no other evidence sitting around. Another assumption we have got here is a sole company, sole director, etc., and no other source of evidence.

The Hon. I.F. EVANS: I am coming to the 'other evidence' issue. Let's go now to the issue of a multi-director corporation. Is it possible for a director to take the self-incrimination defence because he or she may have been the responsible officer, and say, 'Well, I'm not going to answer that question because I'm an individual and it may incriminate me,' and then SafeWork would have to go and ask other directors or officers of the corporation. In a multi-director company can a director say, 'Well, you know what? I'm not answering that question because that may self-incriminate me,' so SafeWork SA is then obligated, or they are left with the option of going to other people within the corporation. Can that person take the self-incrimination defence?

The Hon. J.R. RAU: I think this is where we get back to my original analysis of the thing. The person would have to be advised, 'You are being questioned in relation to a potential charge against either you personally or the company in respect of an alleged breach of whatever.'

The Hon. I.F. EVANS: In the second scenario would the advice be to use the company?

The Hon. J.R. RAU: Yes; as a company they would not be able to take advantage of 172. In speaking on behalf of the company they cannot claim immunity from answering under 172. Again, I am not here to be giving companies legal advice, but it would be quite an easy matter for the company to say, 'Well, look, do you know what, Iain, you're not our authorised officer for these purposes; the member for Unley is. We know the member for Unley has had nothing to do with it; he's just been sitting at board meetings and behaving well, as he does; he is a low-risk person for the company.'

The Hon. I.F. EVANS: So once you have a director interviewed, my understanding of your second reading contribution was that that person, if you are answering in the capacity as an officer of the corporation, is not open to any penalty based on the evidence provided.

The Hon. J.R. RAU: That person is answering questions in respect of no charge against themselves, having been warned; they are answering questions in respect of a potential offence committed by the company.

The Hon. I.F. EVANS: And is it possible under the act for that director to suffer a fine or a penalty as a result of the actions of the company? In other words, could the director—and I do not know the exact words—for instance, give evidence that proves the company was negligent and therefore open him or her up to a fine or penalty as a director for being involved in a company that was negligent in an OH&S matter?

The Hon. J.R. RAU: Can I say, I know that the member for Davenport would not wish this on himself, but if he gets sick of this he should do law. The member for Davenport has got enormous potential as a lawyer, I think. The answer to this is: we have a chain of events where the company produces information through an officer. It is about the company. The company is prosecuted, the company is convicted. There is then, under division 4 of the legislation, certain provisions about the duty of officers.

It says, amongst other things, here that if a person conducting a business or whatever has a duty or an obligation under this act, an officer of the person conducting the business must exercise due diligence. There is a definition of due diligence that you would have to pass through and then there is an example of where this might have application—for example, not reporting notifiable incidents and various other bits and pieces—and then there is a commission of an offence if that is not done.

That prosecution is clearly, if it is launched against the same person, a prosecution against them as a person (a human being) not as an officer of the company and therefore the evidence they have given, wearing their hat as officer of the company, would not be admissible in the context of the prosecution for being personally lacking due diligence. It would be necessary for that to be proved independently of the information that has been provided by that person when they were answering questions as the authorised officer of the company.

The Hon. I.F. EVANS: Is it then the process that the investigating agency could do is go to the next officer of the corporation, knowing that the first officer that has been interviewed has given evidence as an officer of the corporation saying that this happened, that happened, this happened and this happened, which protects that person from the division 4 penalties, and is it then not possible for the investigating agencies to go to the other officer and say, 'Did the first officer do this, this, this and this or not do this, this and this?' and then prosecute the first officer under the division 4 provisions based on the evidence of the second officer and not his own evidence?

The Hon. J.R. RAU: Again, fascinating question but I still think we are talking about a meteor hitting Adelaide tomorrow at 3 o'clock in the afternoon, but can I say this. The question you are asking actually gets into some very complex legal issues. As I understand it, there is a case called Green, the details of which I cannot now recall, but this case deals with people using evidence to prosecute somebody which was obtained in a different context for a different purpose and the courts have said that they do not approve of it. An example: the police under the abalone protection act might be able to demand that you provide information about something. It is okay for them to demand that information in the context of an abalone prosecution but it is not okay for them to demand that evidence in the context of an abalone prosecution so that they can work out whether your car was in the driveway last Thursday when a robbery occurred. Do you understand what I mean?

The Hon. I.F. EVANS: Yes, I understand what you mean.

The Hon. J.R. RAU: So I don't know the answer to the question you are raising but I suspect it is not a straightforward simple answer and it might be quite complicated as to what extent that could go on. As to whether it would go on, I honestly suspect that unless there is independent evidence in most of these cases it won't be going any further.

The Hon. I.F. EVANS: The reason I asked the question, Attorney, is that I asked this question in the briefing and the advice I got from Mr Russell was that it was the standard investigating procedure. I raise the concern about whether with evidence gathered as me giving evidence as an officer of the corporation—and I think I used the words 'shopped around to the subcontractors on-site' using my building background as the example—they could then come back and prosecute me through another mechanism. I was advised that was the standard investigating procedure and it happens quite often in not only these investigations but others. I agree with you that it is complex. I am just trying to get on the record how this actually works so that we can be as clear as we can given the complexity of it.

The Hon. J.R. RAU: I know analogies are always difficult but the best analogy—with the example that the member for Davenport just gave—is something like this: it is intelligence rather than evidence. Intelligence is different to evidence in the sense that intelligence is not necessarily admissible of itself in court.

To take an example: you might have a police informant who tells the police, 'Look, I've heard that Billy Bloggs is growing marijuana in his roof.' That is not evidence of marijuana growing in Billy Bloggs' roof; that is just intelligence that the police have picked up. The police pick that information up—which they cannot use against the person, cannot take to court, cannot get a prosecution for—and they go around and knock on the front door and say, 'Mm, interesting aroma in this house. Do you mind if we check your power supply, etc.' Then off they go and prosecute them.

I do not mean my last answer to the question to suggest that that sort of intelligence-gathering is inappropriate or improper or cannot be done. I was talking about whether or not evidence would be admissible—which is a different point altogether.

The Hon. I.F. EVANS: Okay, now I understand that issue. I understand the distinction the Attorney is making between intelligence-gathering and evidence. I come back to my point of clarification that I want put on the record: is it possible for a director to be interviewed (with his corporation's cap on) and then that intelligence be used by the investigating agency to go and talk to—I will use the building site example—the subcontractors on site, because they know there is a problem because the corporation's officer has told them, and now they use that intelligence to gather the evidence necessary to prosecute that officer who gave the original answer as a corporation under division 4 and, therefore, that officer suffers penalties under division 4 not because of the evidence he gave but because of the evidence gathered from the subcontractors on site?

The Hon. J.R. RAU: I do not see that there is any reason that that could not occur because the evidence obtained would be similar to intelligence in the sense that the evidence obtained from the officer as the company would be intelligence. It would actually set the investigators on a line of inquiry and the investigators would then pursue the line of inquiry by speaking to third parties and, if there were enough third parties who provided that evidence—and, by the way, that conversation with the director as an officer of the company is probably not the only conversation they are having; they are probably talking to 20 or 30 people, so it would be unlikely that that is the only clue they get to follow up—but assuming they had no clues at all and that was the only hint they got, they would be able to say, 'If that's the information I've got from that person, okay, we can't use that directly against the person but I wonder if the steel fixers saw anything that day. They must have been around; let's go and talk to the steel fixers.' Or they might say, 'I wonder whether the guy that's managing the coming and going of vehicles saw anything that day.' Yes, sure, but it would not be directly admissible against that individual for a prosecution against that individual.

The Hon. I.F. EVANS: His own evidence would not be used against that individual but all the evidence from the others could be used against the individual.

The Hon. J.R. RAU: Yes. But, again, before we get too concerned about this, in the sense of it being out of the ordinary, this is not much different—these are, after all, prosecutions. These are criminal offences and the standard police investigating technique is to interview a whole bunch of people who you think might be potentially witnesses or suspects or whatever the case might be. The fact that an answer sets an investigator off on a line of inquiry, which ultimately may lead them back to the individual they originally spoke to but this time with evidence, is not in any way peculiar.

Again in reality, the chance of the only hint of that line of inquiry coming from that person is in most practical situations very remote. We are talking here, after all, about work-related accidents. We are talking about a machine that has blown up or something of that nature. It would be highly unlikely that there was only one person who saw, heard or did anything in relation to that matter and, moreover, that that person was a member of the board of management. More than likely there are 20 or 30 people, some of whom are employees and some of whom are not, who know something about it, and the investigator would speak to all of those people.

The Hon. I.F. EVANS: We are nearly there. I think I have received my legal lesson for the week, Mr Chairman. It is a cheap way to get a law degree. I assume that the asking of questions of an officer who is not authorised to bind the company is not allowed under the act. They have to establish that the officer they are interviewing has the authority to bind the company.

The Hon. J.R. RAU: I am advised that the only person investigators would be talking to would be a person the company had nominated as their authorised officer as the company, but that obviously would not exclude a situation where a person who was a manager of the company but not the authorised officer who happened to be on the spot when the accident occurred would be asked to provide an interview and that person, if they felt answering the question would incriminate them as a person, would have the right under 172 to refuse to answer.

The Hon. I.F. EVANS: The last question, Attorney—in between the houses, I wonder whether you could undertake to do this for the opposition. There were three examples given in the government's briefing to the opposition as to where this had become a problem. They were attachment 1 in the letter you wrote to me on 2 April, so I will identify the three cases. Your advisers are no doubt aware of them.

I am wondering whether you could do a review process to see whether it was an issue with the legal advice that was actually the problem in those three cases or whether it was the questions asked or to whom or how the questions were asked that was actually the problem. It just seems to me that if the investigators did not go through the correct process of asking the right person in the right capacity the right question, then the lawyers are quite within their rights to advise those people being interviewed to take certain positions.

I am just wondering whether anyone outside of the agency has assessed those three cases to see whether it is actually an unreasonable position that the lawyers have taken or whether it was in actual fact a problem with the process leading to those taking their position. If you could undertake to have a look at that and give us some answers in between the chambers, it may well be that there was a problem with the process with all three and we did not need to debate the matter at all.

The Hon. J.R. RAU: A couple of points on that. The first one is that, yes, I will ask that there be some work done on that. The second point is the honourable member's last point about maybe it was not necessary for us to have this interesting debate at all: that would worry me a great deal. I would not have brought this here had I not been told that there was ambiguity in the original draft.

The Hon. I.F. EVANS: You were told there was ambiguity only because the lawyers took the position they did.

The Hon. J.R. RAU: Indeed. The lawyers took the position, and I asked for advice: is their position completely loony, or do we actually have an area which is vague here? If the answer had been, 'No; it's completely loony,' I would not be doing this because, as interesting as this discussion is, all of us could be doing other things. I would not have been doing it had I not been given that advice.

We will try to get an answer to the honourable member's question but, for the reason I have just explained, I think the answer to that question is a bit academic because, had there been no problem with the current wording, I assure the honourable member and everyone else that we would not be wasting all of your time by debating this here.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. J.R. RAU: I think both amendments are not going to be opposed. I move amendments Nos 1 and 2:

Page 2—

Line 11—Delete 'A natural person' and substitute:

An individual

After line 11—Insert:

(2) Section 172—delete 'the person or expose the person' and substitute:

that individual or expose that individual

The Hon. I.F. EVANS: I am happy with that.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:12): I move:

That this bill be now read a third time.

The Hon. I.F. EVANS (Davenport) (17:12): I just want to thank the Attorney for his forbearance in the committee stage and his officers for the brief. It is fair to say that we had a heated brief at some points trying to establish what the rule was, and I appreciate the officers' tolerance of the opposition's questions.

Bill read a third time and passed.