WORK HEALTH AND SAFETY (SELF-INCRIMINATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 June 2013.)

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:50): I thank honourable members for their contributions to the second reading debate on this bill. A number of questions have been asked by, particularly, the Hon. Robert Lucas and the Hon. John Darley, and I have some information to put on the record in relation to those.

The Hon. Rob Lucas queried the progress of harmonised legislation in other jurisdictions. I am advised that the Western Australian government remains committed to the principles of harmonisation and has always stated that it would wait to implement the laws after the national mining regulations had been completed. The Victorian government has stated repeatedly that it supports in principle the national harmonisation and continues to work towards best practice legislation.

On the question of whether crown law advice was sought on the amendment, the answer is that advice was not sought. The Hon. Rob Lucas asked whether SafeWork has accepted the word of individuals as providing the most certainty to the profession, employers, investigators and employees. The answer is: yes, SafeWork supports this bill as it appears before the council today.

The Hon. Rob Lucas canvassed at length the allegedly differing legal opinions about the bill, and I am advised that both crown law and SafeWork have advised the Minister for Industrial Relations that the drafting of the bill as it appears before this place achieves the purpose of this bill, that is, to make it clear that corporations do not enjoy a privilege against self-incrimination.

The Hon. Rob Lucas claims that there is significant legal opinion that the word 'individual' does not achieve this purpose. The government is only aware of the Law Society's opinion in this regard, which is incorrect. The Law Society has confirmed that the author of that advice did not consider this bill in the context of the act as a whole. The author only considered the bill and the amendment. In that light, the Law Society's advice should not be relied on.

The government prefers to rely on the advice it has received from the crown. During debate in the other place, the Minister for Industrial Relations agreed to undertake further work with SafeWork to ascertain what steps are being taken to obtain information from corporations identified in the letter sent to the member for Davenport on 2 April 2013. That work involving solicitors from crown law is ongoing, but I can advise the Hon. Rob Lucas that information sought from one of the three corporations is still yet to be provided, despite the issuing of three notices under section 155 of the act.

However, as stated by the Minister for Industrial Relations, this is largely academic. It is beyond doubt that the current drafting of section 172 is confusing. The very nature of the debates in and out of this place are testament to that fact, and I am pleased that the opposition does not seek to oppose the bill.

The Hon. John Darley has asked that I provide clarification about how section 172, as amended by this bill, will apply to a sole trader who operates under a corporate structure. He also asked that I explain how SafeWork will conduct an investigation and the warnings that SafeWork will provide to persons answering questions during an investigation. The best way to approach this question is by reference to an example. Let us assume the Hon. John Darley is a carpenter operating as Hammer and Tools Pty Ltd. Let us also assume that one of the Hon. John Darley's contractors has been injured on site and a SafeWork investigator has attended to conduct an initial investigation.

I am advised that the SafeWork investigator would first identify themselves, state that they are an investigator appointed under the act and then show their identification. It may be that the Hon. John Darley is quite prepared to cooperate with investigators and to assist them by providing any answer or information they might require. If, however, for whatever reason, the Hon. John Darley is not prepared to voluntarily answer questions or provide information, the investigator would be able to rely upon their section 171 power to compel him to do so, but they must also warn him of his own personal privilege against self-incrimination and about legal professional privilege.

I am advised that in these circumstances a SafeWork investigator would say to the Hon. John Darley, 'My name is so and so, I am an inspector appointed under the Work Health and Safety Act, here is my identity card. They will show the card. Section 171 of the Work Health and Safety Act gives me the power to require you to tell me who has custody of or access to documents. If you have custody or access to those documents and I need immediate access to them, I can require you to produce them to me while I am here at the workplace or within a period that I specify. I can require you to answer my questions.'

'I am going to exercise that power under section 171 now. That means that, if you fail to comply with the requirement or answer my questions without reasonable excuse, you will commit an offence under the act, which is punishable by conviction and a maximum $10,000 fine. You can be excused from answering one of my questions or providing information or documents on the grounds that your answer, the information provided or documents supplied may tend to incriminate you or expose you to a penalty. You are not excused from answering my questions or providing information or documents simply because your answer might incriminate some other person or some other company, even if that happens to be your employer.'

'Nothing in the act requires you to produce a document or otherwise provide information that is the subject of legal professional privilege. Now that I have explained that power that I have under section 171 of the act, I am now going to require you, pursuant to section 171 of the act to (as appropriate) tell me who has custody of or access to (specify the document).' If the person is the person who has custody or access to the document and you need it immediately, you ask for it to be produced, and specify the document while there at the workplace or produce to them (specify the documents) by Xam or Xpm on whatever date. Thirdly, they can ask them to answer the following questions, and then the questions are asked.

As members realise from the words the investigator uses, the Hon. John Darley may then refuse to answer any question or provide any document or any information if the answer, document or information may tend to incriminate the Hon. John Darley personally. On the other hand, if the answer, document or information would only tend to incriminate the company, Hammer and Tools Pty Ltd, and does not personally incriminate the Hon. John Darley himself, he is not entitled to refuse to comply with the investigator's request.

Let us now assume that ultimately the Hon. John Darley has decided that his answers might tend to incriminate himself, and that he has advised the inspector that he will not be answering any questions, that is not the end of the investigator's power to obtain information from the company Hammer and Tools Pty Ltd. The investigator may still issue a section 155 notice upon the company some time after the initial visit. In the example we are discussing, there would be little point in issuing a notice personally upon the Hon. John Darley because the Hon. John Darley may still refuse to answer any questions that tend to incriminate him. However, if notice is issued to his company, Hammer and Tools, then the company must provide the information sought.

These issues are complicated, but they have always been complicated. It has always been the case that natural persons or individuals have a privilege against self-incrimination but that corporations do not. I am advised that SafeWork is developing procedural guidelines and information sheets for distribution to industry about these issues. It is of the utmost importance that all parties are aware of their rights and obligations and the way in which those rights and obligations will be enforced. I commend the bill to members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I thank the minister for the response to questions that were put to the minister by me and the Hon. Mr Darley. As a general point in relation to the issue of the sole trader, the comprehensive debate between the member for Davenport and the minister in another place, and the answer just provided to the Hon. Mr Darley, it explains as best as is possible what might occur in relation to the circumstances that have been outlined. I think it is clear from the debate in the other place, with the minister's constant use of the word 'hypothetical', 'unlikely to happen', etc., that it is his view, wish or hope that there will not be the circumstances of these sorts of dilemmas in the future.

I suspect the reality is that there inevitably will be, and then ultimately it will be a court decision in one form or another which will clarify which particular legal view is right in relation to this issue. For those reasons, I do not propose to revisit in this chamber the extensive debate in the House of Assembly between the member for Davenport and the minister. The member for Davenport has very clearly outlined our questions and concerns about this, our doubts about the way it has been drafted, and the reasons why, as he and I indicated, we will not oppose this particular amendment.

I thank the minister for clarifying that, on this occasion as opposed to the previous occasion, crown law is the legal authority that has given the minister the view that this drafting is the correct view. As the minister has acknowledged now, for some reason the former minister did not take or get crown law advice in relation to the drafting of the amendment that he was going to move in this chamber. As I indicated, there is significant legal opinion that disagrees with the view of the Crown and the government on this issue.

I am aware that representatives of the minister's office in the last 24 to 48 hours have been desperately ringing around some leading lawyers in town wanting to know whether or not they were the lawyers that the Hon. Rob Lucas was referring to in terms of the legal opinion. If you remember, I indicated, without naming the lawyer, a leading lawyer who had been active in this particular area, and that particular lawyer had also indicated that the lawyers' view was supported by senior counsel, who I did not name during the particular debate.

But I think it is a fair indication of the lack of certainty, from at least the current minister, in relation to the drafting of this issue that that mere claim by a mere member of the opposition in this chamber set the alarm bells ringing. As I said, the minister's office has been ringing leading lawyers around town wanting to know whether they are the ones who are referred to in the parliamentary debate.

The fact is that minister Rau is the minister. He has taken crown law advice on this, he has authorised its introduction into parliament, he has chosen to proceed and to ignore the alternative views in relation to the drafting, and he will ultimately have to accept responsibility for the performance of this particular provision over the coming year or so, as the law will inevitably be tested—that is the reality.

At least this minister, as opposed to the former minister, can say that he took crown law advice on the issue. Of course, the minister is a lawyer himself and therefore in a position to give a view; although, as I noted—and I think read onto the public record—the minister sought to have his cake and eat it too because he said, 'I am introducing this bill but, if you actually ask for my personal view, I take a different position.' That does not actually fill you, as a member of parliament, with a great deal of confidence.

The minister is on the record as saying his own personal view is this, and he is a lawyer with some experience in the jurisdiction, but he is introducing a bill constructed in a different way. That is why it is important—because he said he had taken advice, but he did not indicate who he had taken advice from. He has now indicated that he has taken advice from the Crown and from SafeWork SA, obviously. He has obviously considered his own individual view and the crown law position, and he is now asking the parliament to support this bill. So, the onus, the responsibility, rests squarely on the shoulders of minister Rau in relation to this issue for the future.

As a non-lawyer in this chamber, I am not in a position to give an opinion on which particular legal battery is right. To be fair to the Crown, they get it right on a number of occasions, but to be fair to the legal battery from the private sector that has had a look at this, and having a look at their history, they have got it right on a few occasions as well. They have diametrically opposed views in relation to the drafting and, I guess, as I said, only time will tell.

For those reasons, I thank the minister for putting on the record at the reply to the second reading the government's response to the issues that I raised and the Hon. Mr Darley raised. Now that we know who has provided the advice—that is, the Crown—I do not propose to delay the proceedings of the house any further.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.