Legislative Council Fifty-First Parliament, Second Session (51-2) 51 2 Parliament of South Australia Legislative Council published Bills Occupational Health, Safety and Welfare (Penalties) Amendment Bill OCCUPATIONAL HEALTH, SAFETY AND WELFARE (PENALTIES) AMENDMENT BILL Committee Stage Committee Stage In committee. Clauses 1 to 4 passed. Clause 5. The Hon. SANDRA KANCK Legislative Council The Hon. SANDRA KANCK: I move: Page 3, lines 5 to 12— Delete subsection (1) and substitute: (1)	If— (a)	a person contravenes a provision of Part 3; and (b)	the contravention causes serious harm to another; and (c)	the person— (i)	knew that the contravention was likely to cause serious harm to another; or (ii)	was recklessly indifferent about whether the contravention was likely to cause serious harm to another, the person is guilty of an aggravated offence. Maximum penalty: (a)	in the case of a natural person—imprisonment for 5 years or double the Division 1 fine; (b)	in the case of a body corporate or an administrative unit in the Public Service of the State—double the Division 1 fine. This has come about because of representations I had from a number of employer groups, being the Motor Trade Association, the Printing Industries Association and the Engineering Employers Association. Effectively, they were saying that the bill with its current wording casts the net too wide and places all the onus or responsibility when something goes wrong on the employer. My feeling is that the wording as it stands is likely to result in a lot of legal cases, and that is something we certainly do not want to see. What I have moved here replaces the words, and this is along the lines of what the ACT government has, which the various employer organisations that have consulted with me find preferable. The Hon. P. HOLLOWAY Legislative Council The Hon. P. HOLLOWAY: The government opposes the amendment. The honourable member proposes to amend section 59(1) offences set out in the government bill and to make a consequent change. The government opposes the amendment for a number of reasons. These include that it seeks to reintroduce the concept of it being an aggravated offence and actually creates a prerequisite that the death or other serious harm has been caused before the offence could even be considered. To create a prerequisite that actual death or serious harm take place in order to underpin an offence under the Occupational Health, Safety and Welfare Act would be inconsistent with the entire approach to prevention and risk management evident within the legislation. The fundamental OHS principles are based on the concept of exposure to risk regardless of whether the risk resulted in actual harm. The amendment proposed by the honourable member is clearly based upon the consequences of an action rather than upon the concept of risk or danger. This is similar in nature to introducing an industrial manslaughter offence, and employers, unions and the SafeWork SA advisory committee have opposed this concept. The proposed reintroduction of the concept of this being an aggravated offence is also a regrettable return to the past. The existing provision has proven to be unsatisfactory for its intended purpose, and that element is part of the reason. The alleged concerns apparently underpinning the proposed amendment are also misplaced. The present bill does not allow for near-miss events to be prosecuted; however, there are a range of factors that will ensure that only serious cases of misconduct are considered for the section 59(1) offence. Those factors include the very nature of the offence as a minor indictable, which establishes it as a major and significant offence; and the requirement for the prosecution to demonstrate each element of the offence to the criminal standard. This includes the requirement to prove that the defendant knowingly or recklessly undertook conduct that may seriously endanger others in a workplace. This requires that the subjective element of the defendant's conduct and the likelihood of serious endangerment arising as a consequence must be proven beyond a reasonable doubt. This is already a significant legal burden for the prosecution to carry. Further, history would suggest that the regulator does not launch unmeritorious actions and that proceedings of this nature would be contemplated only in the most serious of circumstances. The Hon. C.V. SCHAEFER Legislative Council The Hon. C.V. SCHAEFER: The opposition does not support the Hon. Ms Kanck's amendment, which is basically along the same lines as the amendment I will be proposing myself. The Hon. SANDRA KANCK Legislative Council The Hon. SANDRA KANCK: I put on the record the letter from Business SA about this matter. The letter states: One specific concern arises from the proposed wording of the revision of section 59 of the act, which seeks to create a new reckless endangerment offence that will completely replace the act's section 59 aggravated offence. However, section 59 of the government's bill carries extremely serious implications for any person convicted under it, significant monetary penalties and possible imprisonment for up to five years. The offence is serious enough to be categorised as a minor indictable offence, meaning tried before a judge and jury. The proposed section 59 is only meant to apply to those rogue employers that commit the most heinous offences that are committed in the workplace. On the government's own admission, this is a restricted category and not meant to apply in circumstances that might ordinarily result in a prosecution to section 19(1). However, the revised section 59 does not say or intimate any such restriction on the offending. Given the seriousness of the consequences, Business SA believes that section 59 must clearly indicate that it is for only the most heinous offences. It is very obvious that my amendment is not going to get up but, clearly, employers have a lot of concerns about the bill in its current state. However, as the numbers are against me, I indicate that I will support the opposition amendment as an alternative. The Hon. C.V. SCHAEFER Legislative Council The Hon. C.V. SCHAEFER: I seek leave to move my amendment in an amended form. Leave granted. The Hon. C.V. SCHAEFER Legislative Council The Hon. C.V. SCHAEFER: I move: Page 3, lines 5 to 13—Delete proposed subsections (1) and (2) and substitute: (1)	A person is guilty of an offence if— (a)	the person, without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace; and (b)	the person—	 (i)	knew that his or her act or acts would create that risk; or (ii)	was recklessly indifferent about whether his or her act or acts would create that risk. Maximum penalty: (a)	in the case of a natural person—imprisonment for five years or double the Division 1 fine; (b)	in the case of a body corporate or an administrative unit in the public service of the state—double the Division 1 fine. This amendment is much along the same lines of the Hon. Sandra Kanck's amendment. Her amendment is based on the ACT clause; our amendment is based on the clause as amended in Victoria. Our amendment seeks to do what the government said in the second reading explanation it wished to do, that is, to catch rogue employers who habitually put their workers at risk but not to place in jeopardy the livelihood of employers who may by some tragic accident cause serious harm to a worker. My amendment provides that a person is guilty of an offence if the person, without lawful excuse, acts in a manner that creates a substantial risk. Unlike the Hon. Sandra Kanck's amendment, it does not require that there be a death before prosecution, but they must create a substantial risk of death or serious harm (not just harm) to another who is in a workplace, and the person knew that his or her act would create that risk. Therefore, they have to know that they are putting their workers at risk, or were recklessly indifferent. In other words, we, too, want to punish someone who could not care less and who is prepared to knowingly put their workers at risk. However, we do not believe that someone who, by dint of an accident, causes risk to their workers should be prosecuted. Our amendment, as I say, is based on the Victorian legislation, which appears to be very successful and, again, is the result of lobbying by a number of different organisations. The Hon. P. HOLLOWAY Legislative Council The Hon. P. HOLLOWAY: The Hon. Caroline Schaefer proposes to amend the section 59(1) offence set out in the government's bill. Whilst the government recognises that the amendment is clearly preferable to the one we have just dealt with from the Hon. Sandra Kanck, we still do not support this amendment for a number of reasons. Principally, we consider that the inclusion of the term 'creates a substantial risk of death or serious harm' establishes an onus that is too high. Secondly, the maximum penalties, as proposed, originally did not adequately capture administrative units in the Public Service, but I understand that the honourable member has corrected that and is moving it in an amended form. So, I guess that that matter, at least, has been addressed. The amendment does preserve the bill's coverage of both knowing and reckless behaviour and it does not expressly require that a person is actually killed or seriously injured at work before the conduct can be dealt with under this offence. That much is consistent with the intention of the existing bill. However, the obligation to prove beyond reasonable doubt that the conduct actually created a substantial risk of death or serious harm would, in effect, dictate that such harm actually took place; that is, it is likely that the prosecution would need to demonstrate the inevitability of the consequences and that, in practice, this could be done only where the actual death or serious harm occurred. To create a prerequisite that actual harm take place in order to underpin an offence under the Occupational Health, Safety and Welfare Act would be inconsistent with the entire approach to prevention and risk management evident within the legislation. The alleged concerns apparently underpinning the proposed amendment are also misplaced. The present bill does clearly allow for near-miss events to be prosecuted. However, there is a range of factors that will ensure that only serious cases of misconduct are considered for the section 59(1) offence. I have just mentioned this in relation to the Hon. Sandra Kanck's amendment, but I will put it on the record again: those factors include the very nature of the offence as minor indictable, which establishes it as a major and significant offence, and the requirement for the prosecution to demonstrate each element of the offence to the criminal standard. This includes the requirement to prove that the defendant knowingly or recklessly undertook conduct that may seriously endanger others in a workplace. This requires that the subject element of a defendant's conduct and the likelihood of serious endangerment arising as a consequence must be proven beyond a reasonable doubt. This is already a significant legal burden for the prosecution to carry and, further, history would suggest that the regulator does not launch unmeritorious actions and that proceedings of this nature would be contemplated only in the most serious of circumstances. So, for those reasons we oppose the amendment. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: Family First supports the amendment. We believe it strikes the right balance in the competing interests of employers and employees in the workplace. We have thought about this long and hard but in the end we have decided to support it, mainly because, as I say, it strikes the right balance but, secondly, because obviously no employer sets out to have their employees injured at work, and we think that there should be a tough burden of proof or a tough onus, if you like, of proof in terms of actual penalties being imposed. So, we commend the Hon. Caroline Schaefer's amendment and we support it. The Hon. P. HOLLOWAY Legislative Council The Hon. P. HOLLOWAY: It is obvious that the government does not have the numbers but, nonetheless, we think this is important enough to test. I will just read from a letter which was sent to all members of parliament by the Voice of Industrial Death (VOID). I will read the concluding paragraphs of this lengthy five-page letter. It is from Andrea Madeley, the President and founder of VOID, as follows: The sad reality is that we need this legislation—the tougher penalties and scope for addressing serious disregard for safety, in order to protect the welfare and lives of our workers. We'd all like to believe it's not necessary and that all employers will always have the welfare of their workers at heart but I would beg your indulgence in the possibility that rogue employers do exist. I would not be writing this letter to you asking you to support this legislation if that were not the case. It just seems so very wrong to tolerate the concept that the illegal poaching of a shellfish holds higher consequences than causing the death of a worker through cost cutting/ignorance/apathy/negligence—it really does not matter which one, it's a current reality no matter which way we look at it. The Hon. SANDRA KANCK Legislative Council The Hon. SANDRA KANCK: I also received that letter and I want to put it on record that I agree with that group (VOID) about what it says. However, the amendments that we are dealing with, I think, are looking at this issue as to whether or not employers are effectively always in the wrong, and it is clear to me that they are not always in the wrong. We have certainly got to do whatever we can to reduce the number of industrial deaths that we have in this state. Supporting this provision of the opposition's, as I will now, will not in any way lead to an increase in deaths. The Hon. Sandra Kanck's amendment negatived. The committee divided on the Hon. C.V. Schaefer's amendment: AYES (10) Dawkins, J.S.L. Evans, A.L. Hood, D.G.E. Kanck, S.M. Lawson, R.D. Lensink, J.M.A. Lucas, R.I. Ridgway, D.W. Schaefer, C.V. (teller) Stephens, T.J. NOES (6) Finnigan, B.V. Gago, G.E. Gazzola, J.M. Holloway, P. (teller) Parnell, M. Wortley, R. PAIRS (4) Bressington, A. Hunter, I. Wade, S.G. Zollo, C. Majority of 4 for the ayes. Amendment thus carried; clause as amended passed. Title passed. Bill reported with an amendment; committee's report adopted. Third Reading Third Reading Bill read a third time and passed.