Bills

Work Health and Safety (Review Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2024.)

The Hon. H.M. GIROLAMO (15:35): The opposition is committed to ensuring that South Australian workplaces are safe for all workers. Any injury or loss of life at work is a tragedy, and we should do all we can to prevent these things from occurring. While we have a shared ambition, it does not mean that we will always agree on the best way to achieve this goal.

The opposition supports the role of SafeWork SA as an independent safety regulator of workplaces in South Australia. Like every government agency, there is always room for improvement. However, fundamentally we believe that the role as an independent regulator is important to ensuring harmonious industrial relations in this state. We had no issue with the Labor Party undertaking the review into SafeWork SA, but we cannot support some of the recommendations that have been brought forward, in the same way that the government has not supported all the recommendations brought forward in the review.

The opposition, as well as employer and business peak bodies, has been calling for the government to appropriately fund and research SafeWork SA after it was revealed that under this government SafeWork SA has been insufficiently staffed and has some major issues from an office perspective. This is unacceptable and needs to be addressed.

We support aspects of the government's amendment bill, but cannot support all of the proposed reforms. It will come as no surprise that that is the position of the opposition. Primarily, we cannot support the effective outsourcing of the independent regulator's role in work health and safety disputes to union lawyers—this is unacceptable. We also strongly believe that, if the government is to pursue these reforms, SAET and SafeWork SA need to be resourced appropriately. We cannot continue to expect our courts to do more with no additional funding.

It is too often the theme with this government that they are constantly asking the courts to do more with less, and the community of South Australia is affected by this through huge delays and court backlogs. This is not the way we should be treating business in South Australia, and it is not the markings of a business-friendly government. The ramifications are negative and compounding.

South Australia was on a growth trajectory coming out of COVID, and in just two short years of this government businesses are constantly being impacted negatively. We hear on this side complaints from the business community, and no doubt others in this place are hearing that they strongly advocate to ensure that there is support for business, and this bill creates more burden for businesses doing it tough during this not only cost-of-living crisis but cost-of-doing-business crisis we currently are seeing.

More specifically, within the bill before us today I will refer to clause 5, referring to the SafeWork advisory committee. Legislating the SafeWork advisory committee: the opposition will not stand in the way of this reform and we note that it has been operating without legislation for a period of time now.

Alternative work health and safety dispute resolution pathways, clause 8 of the bill: we have concerns that, in short, after 24 hours after an inspector is appointed the proposal allows a work health and safety dispute to be lodged with SAET. This proposed reform seeks to do nothing more than diminish the powers of the independent regulator and increase the powers of unions. It is a union power grab, plain and simple. This is clearly pushing the pendulum too far in favour of unions and doing nothing for business. Many elements of this bill are completely anti-business.

While the version of the bill in front of us today is significantly better than the draft consultation—which concerningly included civil penalties but also the ability for SAET to revoke workplace entry and provide penalties for frivolous proceedings—it is going far too far, and that is why the opposition cannot support it.

While it is not entirely clear what issue the government is trying to address through introducing a specific reform, the sidelining of the independent regulator does not make sense for a range of issues. It seems as though we are sidelining the police to go straight to the magistrate without allowing the police to investigate and to determine whether a case has been established or charges need to be laid. It is a cheap attempt at cost shifting, shifting costs away from government and onto businesses, shifting resources away from SafeWork SA straight towards union lawyers. It is completely unacceptable.

Businesses are being left to foot the bill, yet another bill during a massive business crisis that we are seeing unfold across the state. It is not just us who think this has a lack of merit. Safe Work Australia dismissed the recommendation of the recent model law review at a meeting on 7 April 2022. I will quote:

At their 7 April 2022 meeting, SWA Members agreed to maintain the status quo on the basis that the current provisions and jurisdictional processes are working as intended. The Chair wrote to WHS ministers on 2 May 2022 advising of this outcome.

The government's original proposal had significant backlash from employers and business peak bodies, as we understand. It is very concerning that they now feel that if they do not agree to this one, what more could be put forward? What more could be put forward to impact on businesses during this troubling time? We cannot support a bill that would allow unions to add themselves as a party to a matter. Whether or not the party wishes to refer this dispute to a member of a union is irrelevant. It is completely unacceptable.

In regard to clause 11, increasing the right of entry powers for union officials, the opposition will not be supporting this aspect of the proposed reform. This is yet another example of diminishing the responsibilities of the independent regulator whilst continuing to increase the powers of unions in South Australia. I would say, though, that we definitely will support the introduction of a review by the Director of Public Prosecutions of SafeWork SA. This is a very important element and highlights concerns following the tragic murder of nurse Gayle Woodford. As an opposition, this is an area that we would certainly look to support. We need to ensure that there is a timely review response and prosecution where required.

The reforms in regard to confidentiality provisions: the bill inserts a new section under 271A, which provides the regulator with a broad discretion to disclose information relating to an incident to a person affected by the incident. This includes people such as an injured worker or their family, the person conducting the business or undertaking, other workers at the workplace affected by the incident or a relevant union.

The amendment does not compel the regulator to disclose information where the regulator believes that disclosure would be inappropriate. However, the amendment does remove longstanding statutory barriers to transparency, and puts SafeWork in the same position as other prosecuting authorities like SA Police and the DPP in terms of the information it may provide to affected parties. The opposition supports these reforms.

Overall, we feel that this bill is a massive overreach, yet another union grab, and yet another opportunity to put extra bills onto businesses, creating a burden, red tape and issues for many businesses that may well be caught unaware by these changes, not even knowing that these changes are likely to go through this place and the other place as well. We believe that this bill is unfair and unjust for many businesses, and this is not a bill that the Liberal party will support in this state.

The Hon. S.L. GAME (15:44): I rise briefly to comment on the Work Health and Safety (Review Recommendations) Amendment Bill 2024. The anticipated benefits of the proposed changes to the existing Work Health and Safety Act must be balanced against the impact on stakeholders, including businesses. These changes will likely impact housing affordability, so it is necessary to limit their effect on any current work and to ensure that businesses have sufficient time to implement the new obligations.

Stakeholders, including the Housing Industry Association, have expressed disappointment that the state government has chosen to proceed with these amendments without addressing many of the concerns raised by several peak bodies across various industries. Industry bodies, including HIA, strongly suggest these changes should be considered in more detail with greater emphasis on the likely impacts on stakeholders and the industry generally.

Stakeholders are concerned with the expansion of the existing civil penalties provisions, including proposals that allow persons other than the state to prosecute for breaches of the work health safety laws. There is also significant concern around the ability for right of entry permit holders to record video footage of the workplace. Allowing the work health and safety regulator to disclose information related to an incident to specific people under certain circumstances will need to be handled in a balanced and sensitive manner.

To ensure it can carry out its duties as a regulator, SafeWork SA must be appropriately funded and resourced. The government needs to tread carefully, closely monitoring any changes to ensure businesses are not unfairly impacted, with greater pressure placed on housing affordability.

The Hon. C. BONAROS (15:45): I rise to speak in support of the Work Health and Safety (Review Recommendations) Amendment Bill 2024. I have to say at the outset, bar one of the union-specific provisions, the opposition's position has left me a little perplexed today, especially when we know we have so many industry associations, industry businesses, never mind the trade unions—we know where the opposition stands on trade unions—victim advocates, victims and their families supporting the proposal.

As we know, it is the product of a review that the government committed to during the election: the Merritt review, which was conducted in mid-2022 onwards. Last year, in January, there were 39 recommendations made to government as a result of that. There were, of course, recommendations in there that were supported in whole or in principle, and of course those that the government committed to work on.

Nobody is shying away from the fact that this has been a long and exhaustive process and one that has taken some 18 months, but the overriding principle here—and members have made reference to those previous discussion papers and so forth—is weighing the safety of workers against the cost to businesses. Based on the feedback provided, certainly to me, amongst those groups that outcome is achieved via this bill.

It is absolutely, I think, as the Attorney has said, designed to address that longstanding structural defect in our legislation which has kept workers in the dark about what action is being taken by SafeWork SA. It is something that we have banged on about in this place for a very long time. It has caused significant distress to families of workers who have either been injured or killed. There was a recommendation for an advisory committee to be established.

The government has worked towards that and, again, there is an amendment here which seeks to codify that in the bill, so I cannot see how that is a bad outcome. Of course then we have the recommendation around SAET playing a greater role in terms of helping to resolve disputes about work health and safety matters. That is one of the key measures in this bill and one that I suspect has given rise to the angst of the opposition in that respect.

We know this is not a new proposal. It has existed in Queensland for nearly seven years and it has proved effective there. The sky has not fallen in. The floodgates have not opened, as the Attorney indicated, I think, in his earlier speech; instead, it has been used in not many—because, like I said, the floodgates have not opened—but I think it is at least 10 applications since those laws were introduced to assist.

When we talk about the sorts of instances we are envisaging falling under these provisions I think it should not be lost on us that we are talking about, many times, rogue employers who flagrantly disregard workplace safety and compromise the safety and health of their workers at the risk of injury and death. From that perspective, it does perplex me which part of that we find offensive, but I do note, just so I can finish up on the Queensland model, that that legislation is currently under review, not because we are changing the model that exists in Queensland but, again, aimed at introducing further measures.

They are things we could have looked at as part of this review as well. The government could have taken those into account now, but I think it is very sensible that the government has opted not to do that now and to consider those at the two-year review point, which is also another prescribed measure in this bill in terms of the operation of these measures.

We know that under the provisions of the bill if SAET resolves a dispute by arbitration then the parties have to comply with any order made by SAET, and if they breach that order—that is, they go to arbitration as one of the options, they disregard the order issued by SAET in terms of work health safety and then are hauled back before the regulator or SAET—they will be in breach and will have to pay a civil penalty, and that penalty will be payable to the state.

That, I think, also is a little perplexing in terms of not understanding what part of that model is bad—when you have an employer who has gone to SAET, SAET has said, 'This is something you need to fix. This is something you need to address,' you have arbitrated an outcome, SAET has issued an order, and then the employer continues to disregard it, so there is a breach, and as a result of that breach there is a penalty payable, and that penalty is payable as a further deterrent to that employer to make sure that they do not keep risking or compromising the safety of the workers who are working on those sites.

The opposition might say, 'This is just a means of getting unions in to workplaces.' That might be the case, but I do not think it is the Labor trade union movement—and I am not defending the Labor Party here by any stretch; I think this is a broad statement—who are the only ones who are going to use these powers. In fact, I think some of the associations and groups that the opposition often speaks in support of will be the first ones to put their hands up to use these measures to ensure that employers are providing safe workplaces.

There are also safeguards in there to ensure that vexatious or frivolous matters will not be pursued. SAET will have the ability to dismiss those cases that are frivolous or vexatious in nature. There is also provision in there to ensure that, where entry permit holders are allowed to enter those workplaces, those concerns that were outlined in relation to recordings and so forth of safety contraventions will be subject to very strict rules around what is and is not allowed.

I am not going to harp on about the SAET stuff, but in terms of cost I will say this—and there are obviously provisions in there in relation to cost—I simply do not buy the argument that this is going to result in extra costs to businesses. Frankly, if there are businesses which are flagrantly disregarding the law and providing unsafe workplaces and practices for their employees, then I do not think many of us have much sympathy for them. Really, we are talking about those workplaces which are being pulled into line and told, 'The workplace you're providing is not safe, and if you continue to disregard the orders of SAET then you will be paying a penalty for that.'

The review by the Director of Public Prosecutions changes are important. We acknowledge, and I acknowledge indeed, that a safeguard was needed to ensure that where victims and their families believed actions by the regulator were inadequate the regulator's decision in relation to a potential prosecution ought to be reviewed.

We have made reference to—and I will do the same—the very tragic Gayle Woodford case, which involved her rape and murder. An issue that has been thrashed out in this place previously as well, as an example, is the situation faced by Gayle's husband, Keith. Following that tragic rape and murder of his wife, the case was subject to an independent review commissioned by the government and by His Honour Justice Mansfield AO KC, and Keith was only informed of the decision taken by SafeWork not to commence a prosecution literally at the eleventh hour, when it was too late to do anything else. He did not have the benefit of being able to go and ask for that review, because the decision was left until after the statute of limitations had expired.

I think it is probably worth noting at that time as well that you cannot blame these families for thinking, given the situation we have had historically with SafeWork in this state, that these are deliberate decisions that have been made, that somehow it was convenient. That might not be the truth, and I am not suggesting by any stretch of the imagination that it is, but you absolutely cannot fault those families for coming and saying to members in this place, including myself, 'We think this is a deliberate ploy by a regulator to ensure that we don't have access to a review.'

In terms of beefing up the transparency and accountability of SafeWork, I think this is a really sensible measure that will do away with that concept that somehow they are not acting in the best interests of the families of those workers who were injured or killed, and also strengthen their own reputation, which previously in this space has, frankly, been left in tatters following not just one but a number of investigations and matters that did not lead to prosecution.

Overall, when it comes to that situation—and I thank Keith, as I am sure other members do—the long and short of it is that what happened to Keith Woodford is unacceptable. It never should have happened and so I am really pleased that we are here today addressing that to ensure, as far as we can, that no other family is left after having lost a loved one in such tragic circumstances to pick up the pieces of their lives and also to deal with a knock in the teeth from our regulatory regime.

In the future, no family should, and hopefully no family will, suffer the same fate as Keith's, and the DPP under these changes will be able to consider and provide advice on a request for review. I think it is worth pausing and reflecting on how important that is in terms of SafeWork's own reputation, in light of that easy, albeit unfair, conclusion that is often drawn that these things are done intentionally to avoid a review.

The bill also has confidentiality provisions. This is an area that I will speak to a little more. SafeWork, according to the Attorney, has been a black box where a health and safety complaint goes in and a decision about a potential compliance action or prosecution comes out, but where the internal reasoning processes around that are completely unknown to the family, to their representatives, to any member association advocating for them and to their legal counsel.

The bill seeks to incorporate the new section 271A to address that issue of disclosure. I know the Attorney will not like this, but it has been dubbed in the past, by many legal representatives and council in this space, as a secrecy provision—one that is viewed as a provision that is used intentionally to prevent access to information.

We know, of course, that what prevents access to that information often is the law itself, and that is what we are seeking to remedy here so that there is able to be a release of information in matters prospectively. Again, I go back to the Gayle Woodford case and what has, like I said, been dubbed a secrecy provision, rightly or wrongly, and the Howard case, which is currently the matter of an inquest at the moment. Two people died in those cases. One was raped and murdered.

Members may recall that, during the industrial manslaughter debate, I moved amendments to address this very issue, following Keith's experience. At the time, the government and the Hon. Tammy Franks, on behalf of the Greens, spoke in support of those proposals in principle, on the understanding that it would be introduced by government, which brings us to today.

I take this opportunity now to thank the Attorney for acknowledging the anguish and trauma these provisions have caused Keith and others like him, for genuinely engaging with Keith and his family and counsel, and for his commitment to addressing this issue and engaging constructively with me and others to get to a positive outcome. I acknowledge also the advocacy and persistence of Andrea Madeley, who knows better than most of us, unfortunately, the impacts these provisions have on families.

I am pleased on two fronts: first, that the Attorney has been true to his word and gone above and beyond what I had proposed when I first did this in the industrial manslaughter space; and, secondly, again, his willingness to move a further amendment that relates to the retrospective cases where a death has occurred. I think that is a really critical inclusion to this bill, so that where a death has occurred in the past a family will not be prevented, by virtue of what we are doing, from making a request for that information.

I appreciate the concerns surrounding retrospectivity in general and how hard it might be to go through historical cases, especially where people have moved on and there are lots of files and the case is 10 years old, or whatever the case may be, just as I appreciate the potential for an influx of requests. But I think the bottom line for all of us ought to be that somebody has paid with their life, and that is the very least we can do for their families. If that means assigning more resources or taking a bit longer because case managers have moved on, or whatever the case may be, then so be it. Someone is dead and they are not ever coming home to their family, and I do not think that should be lost on any of us during this debate.

So I thank the Attorney again for agreeing with that position and ensuring this bill has that retrospective effect where there has been a resulting death, so that families are able to request information that would not have been otherwise available to them. I note also that these are discretionary clauses because there might be other reasons why we should not be able to do this, but again I will just say that it should not be lost on any of us that this is just as much, if not more, about closure for those families than anything else.

Losing a family member through a workplace incident is one thing, and one that I cannot fathom, but knowing that details of that tragic event exist and not being privy to them because of a piece of legislation is frankly quite another thing. That is torturous, and that is what we do to families at the moment. It leaves families with more questions than answers. It plagues them, and answers that could otherwise have given grieving families some semblance of closure are denied them. I do not think you can put a price on that, not for the deceased who has paid with their life and not for the families who have been left behind to pick up the pieces.

I think it is easy in this place to think of these reforms as very transactional and methodical without pausing to think about the real-life implications they have, but those families do not have that luxury. Whether it is out of rage, anguish, trauma, justice or preventing the same thing happening to families again, or indeed all of the above, I do not think we can acknowledge and thank enough Keith Woodford, Andrea Madeley and all those families at VOID for their strength and advocacy in the face of their worst nightmares. Like the Attorney has previously, I take this moment to extend my gratitude to each and every one of them for standing up and speaking out so loudly and persuasively on this issue.

I have stood in this place just as many times as others and have slammed SafeWork and absolutely had a crack at both sides of government when they were in power about the need to appropriately resource our regulator. During the industrial manslaughter debate, we talked about the fact that we have high-risk industries and this one-size-fits-all approach does not work. I think the Attorney is committed to actually addressing that issue, and this is one other way of actually doing that. We are not saying it is the answer to everything, and I am not saying it is the answer to everything, but I know the groups that have been involved in these dialogues and discussions with the government, with me and with others in this place are genuinely committed to doing everything they can to ensure that workplaces are safe.

SafeWork has a long way to go before it is out of hot water in terms of the role that it plays and being better equipped to do its job. Businesses deserve more and workers deserve more, and governments need to be doing more to ensure that the regulator is up to scratch. I think that does not detract from or even diminish the need for these reforms that we are considering today. In all, I think they are sensible and they are intended to deal specifically with those employers who flagrantly, knowingly and intentionally breach their responsibilities towards their employees but, equally, to deal with issues before they get to that point, so that they do have an avenue available to them to address something that is a risk to an employee.

In closing, I commend the government for introducing this bill—I know it has been a long time coming and a lot of work has gone into it—and all the industry groups, associations, trade unions, victims' advocates and families who have played such a key and critical part in its development.

The Hon. T.A. FRANKS (16:06): I rise on behalf of the Greens to indicate our support for the Work Health and Safety (Review Recommendations) Amendment Bill 2024. It is worth considering the context in which this debate happens: 300 South Australians died at work between the years 2003 and 2022. That number is, of course, higher as we debate today. For every single one of those people who died, there was a collective trauma for their family, their workplace, their friends and their loved ones, and that is why it is essential that we get work health and safety right.

We are happy to support changes that reduce risk for workers, so we welcome this bill today. I take the opportunity to thank the minister for his briefing, and in particular his adviser, Angas Oehme, for all the work that they have done. This is a commonsense bill largely implementing changes that will make processes simpler, more accessible and fairer.

We are pleased to see that SAET has been given jurisdiction to resolve work health and safety matters. While they cannot impose penalties, they can take steps to resolve matters early through mediation, arbitration, expressing an opinion or referring a matter to the regulator for investigation. It has been identified that, previously, the time frame to request review of a SafeWork decision not to prosecute was not long enough.

Often, victims or their families were only left with a couple of days before their time to request a review had expired. That also meant that the DPP, which would undertake the review, also only had days—literally days—to make their decision. For these victims and their families, this ultimately meant that their right to a review was a total illusion. The changes in this bill give victims and their families a genuine right of review.

The Hon. Connie Bonaros mentioned Keith Woodford who, after the murder of Gayle Woodford, became known to many of us. We are also very well aware of the work of Voice of Industrial Death (VOID) and Andrea Madeley, who lost her son. I also want to add that, as I debate this, I will be thinking of Pam Gurner-Hall, who lost the love of her life, Jorge Castillo-Riffo. These changes certainly come too late for all those people, and we do not want to see another workplace death, but should there be these will have a positive impact to at least give some dignity and respect to those families.

Those entering workplaces will now also be able to take 'measurements, tests, photos and videos' that are relevant to suspected health and safety contraventions. This very sensible change means that those reviewing incidents are not solely reliant on witness descriptions and can now utilise objective information taken from the workplace.

It will also now be optional to provide a written report to SafeWork after a right of entry is exercised. SafeWork SA must still be notified before entering, but by making the subsequent report optional it removes that administrative burden where it is not necessary. For those who do wish to submit a report, SafeWork must still advise of any action taken.

Victims and their families will now be able to access information that will help make the process more accessible to those affected by work health and safety breaches. This bill does provide safeguards for confidentiality, but it is not a free-for-all. There needs to be a link to the victim and there are restrictions if disclosure would not be appropriate. While there are limits allowing those involved to gain information, it will make the process less opaque and help build confidence in the regulator's process and that confidence is much needed. This is particularly important for families of workers who have died. Being able to understand the circumstances of a loved one's death at work will help those who are left behind and, as I have said, it is the least this parliament can do.

From the Greens' perspective, we will also be introducing an amendment to this bill. Our amendment will prohibit employers from insuring against fines and penalties that arise from breaches of the Work Health and Safety Act. This comes directly from a recommendation made in the Boland report, which notes that currently there is nothing preventing a body corporate or a sole trader from insuring themselves or a company's director against penalties for offences under the Work Health and Safety Act.

The very point of a penalty is to deter noncompliance. By allowing employers to insure against those penalties, the effect and purpose of that penalty is absolutely undermined. A submission by the federal Department of Jobs and Small Business noted that the:

…availability and use of insurance in such circumstances may create the moral hazard that duty holders will become less vigilant in carrying out their duties under the WHS Act.

There is, of course, at least one example in South Australia of an employer causing the death of a worker and an insurance policy allowed to 'avoid the vast bulk of the anticipated monetary penalty'. This is the case that came before the South Australian Industrial Relations Court in 2013 and at that time Magistrate Lieschke noted:

In my opinion Mr Mainoe's actions have also undermined the Court's sentencing powers by negating the principles of both specific and general deterrence. This message his actions send to employers…is that with insurance cover for criminal penalties for OHS offences there is little need to fear the consequences of very serious offending, even if an offence has fatal consequences.

That is the quote of the magistrate. My quote would be: nobody should be allowed to get away with murder and should they murder they should not be able to insure their way out of the penalty. Employers should not be allowed to hide behind insurance policies and place workers at risk.

South Australia, of course, is one of the last jurisdictions to implement this change and versions of this amendment became effective in New South Wales in 2020, in Victoria in 2021, in Western Australia in 2022, in the ACT in 2023 and in Queensland in 2024. This change, this Greens amendment, would in fact bring us in line with the model WHS act. The Greens amendment extends section 272 of the existing Work Health and Safety Act. While currently no contract can exclude, limit or modify the operation of the act, uncertainty around this provision is what has allowed insurers to offer indemnity for penalties under the act.

The Greens amendment makes it clear that no person can enter into a contract of insurance that ensures or indemnifies a person for any part of a monetary penalty under the Work Health and Safety Act. The Greens have modelled their amendment on the Queensland legislation, which was written after recommendations made in the 2017 best practice review of Workplace Health and Safety Queensland. Put simply, no-one should get away with murder, and by ensuring their way out of real penalties this is what is going on currently, and that gap must be closed.

In conclusion, I note the words of Dale Beasley of SA Unions, and I certainly thank him for his briefing on this bill. He, in correspondence to my office, stated:

Until now, when workers have been faced with pressure to perform unsafe work, have had their employers fail to adequately address safety concerns at work or had their employers knowingly put profit ahead of their safety, they and their HSR could seek the assistance of the regulator SafeWork SA. Unfortunately, in situations where SafeWork have not acted, workers have had nowhere to go. This bill changes that.

This WHS dispute resolution process is a significant step forward for our state after almost three years of active campaigning by SA Unions. It delivers on recommendations from both the Merritt and Boland reviews, will expand the avenues available for workers and businesses to positively uphold workplace safety, hold employers who flout their duties to account and to keep workers safe and save lives.

In closing, I noted during the Hon. Connie Bonaros's contribution that she noted this was part of the cost of doing business. My closing quote is: this bill goes a long way to ensuring—and the Greens amendment will go a long, long way to ensuring—that the cost of doing business must never be at the expense of workers' lives.

The Hon. M. EL DANNAWI (16:16): I am very pleased to speak today in support of the government's work health and safety amendment bill. The bill responds to the independent review into the work health and safety scheme in 2022. The independent review was critical, and it concluded that our work health and safety system was no longer up to scratch and that reform was essential.

Last year's 'Work Shouldn't Hurt' survey from the ACTU surveyed 550 South Australians and found that 56 per cent of respondents are pressured by management to not raise health and safety issues, 41 per cent were dissatisfied with their workplace's approach to their health and safety, and 67 per cent of health and safety representatives did not hear back from an inspector after reporting safety concerns.

One of the most important findings of the independent report was a recommendation of a pathway for the civil resolution of work health and safety disputes. This bill provides that pathway through the South Australian Employment Tribunal. Workers, unions and businesses will be able to refer a health and safety dispute to SAET where it cannot be resolved at a worksite level. Under this bill, SAET will be granted the power to help settle disputes by conciliation, mediation or arbitration. Where SAET arbitrates, it can make any order it considers appropriate for settlement. That includes orders that a business take active steps to address a practical health and safety issue at the workplace.

This reform creates a more proactive model where a civil pathway can be used to resolve issues in the workplace before the worst-case scenario is reached and the only option left remaining is criminal prosecution. These reforms will not take anything away from SafeWork SA as a regulator, but will instead help them perform their function meaningfully. It will allow them to focus on their roles in regulating and addressing the worst cases on noncompliance with the law.

The dispute resolution model in the bill is based on amendments made to Queensland's work health and safety laws in 2017. Those reforms have worked successfully now for seven years. SafeWork places require a proactive approach and collaboration. It is hard to be collaborative where there is no civil pathway to dispute resolution. The new model introduced by this bill will help create a culture where employers and employees can work together to create safer workplaces.

The bill also introduces several other important amendments. Many reviews have found that the current confidentiality requirements in the Work Health and Safety Act have prevented SafeWork SA from communicating with victims and their families. The bill reforms these confidentiality requirements and gives SafeWork SA a greater capacity to disclose information about workplace incidents. This will bring SafeWork SA in line with other prosecuting authorities that have this power—the South Australia Police and the Director of Public Prosecutions are two examples.

The bill will also provide that union entry permit holders may take photos and video recordings when investigating health and safety issues. These materials will of course be subject to strong confidentiality requirements. The bill also establishes the SafeWork SA advisory committee, which will provide advice to the government and SafeWork SA about how to improve work health and safety.

It is easy to look at how far we have come in protecting people at work and forget how relevant this issue still is. There will always be people who put the safety of their workers toward the bottom of their priority list, for whom profit comes before health and wellbeing. I commend the bill to the chamber.

The Hon. R.B. MARTIN (16:20): It is a privilege to rise to speak on the Work Health and Safety (Review Recommendations) Amendment Bill 2024. I say it is a privilege because it truly is a great moment for those who sit on any Labor government benches whenever we legislate to advance fairness and justice for working South Australians. The opportunity to enact meaningful reform in this critically important area of law is, at the heart of it all, one of the most significant reasons why we are all here. It is certainly a reason that unites us on this side.

It is also an area of reform that is of great interest to several of those on the crossbench, and I hope all members will welcome this bill as representing a significant positive step towards strengthening safety across South Australian workplaces, providing a practical pathway to resolve health and safety disputes, and making our work health and safety system fairer and more just for those who have been the victims of workplace accidents, along with their families.

This bill—the culmination of one of the Malinauskas government's key industrial relations commitments of the last election—will bring the most significant reform to work health and safety in our state since the introduction 12 years ago of the act that it proposes to amend, the Work Health and Safety Act. The bill was developed following a fulsome process which began with the independent review of SafeWork SA in the latter half of 2022, conducted by Mr John Merritt, a former director of WorkSafe Victoria.

The review attracted submissions from unions, business associations, health and safety professionals, and from families of workers who had lost their lives in the workplace. The review, which was released in January 2023, made 39 recommendations to government, most of which were accepted in whole or in principle. The government then embarked upon a process of consultation on the review's recommended legislative reforms. That process included nearly 18 months of engagement and consultation with unions, businesses and other stakeholders. A theme of this consultation was a recognition that we can and must do better for workers who engage with our work health and safety system, and particularly for the families of workers who lost their lives while at work.

One important change proposed by the bill is to further empower our state's independent industrial umpire, the South Australian Employment Tribunal (SAET), with a strengthened role in dealing with workplace health and safety disputes. Workers, unions and businesses will have the option to refer a health and safety dispute to SAET if it cannot be resolved through the processes of the workplace. SAET will have a range of powers to help settle disputes through conciliation, mediation and arbitration.

If SAET arbitrates a dispute, it will be able to make any order it considers appropriate for the prompt settlement of the dispute. That will include orders that a business take the necessary steps to address a health and safety issue at the workplace. Having the opportunity to seek the help of SAET to resolve issues is a straightforward and practical way to improve workplace safety and to address issues that have arisen before serious injuries eventuate, and to the extreme outcome before workplace deaths may occur. If workers, unions or businesses are confronted with a health and safety issue that cannot be resolved through workplace discussions, it is appropriate that SAET assume a role in dealing with such a matter.

The proposed approach is consistent with reforms introduced in Queensland a number of years ago that have been operating well, and it is in harmony with our range of legislative efforts in this important area of the law. As we have said, the reforms our government is undertaking are aimed at reducing tragic and avoidable incidents by making South Australian workplaces safer. The intent is not to punish but to prevent.

The Attorney-General provided ample detail in his second reading contribution in relation to how this will be structured and will operate, so I will not go into a level of detail which has the effect of reiterating the substance of his contribution. It is important to note that the proposed dispute resolution system will not take anything away from the function of SafeWork SA as a regulator. SafeWork SA will continue to play a crucial role in enforcing health and safety laws, and we continue to invest in SafeWork SA to strengthen its capacity.

Another very important intent of these reforms is to increase fairness for victims of workplace health and safety incidents and their families. Multiple reviews have found that the confidentiality requirements that have been in place in the Work Health and Safety Act have hindered communication between SafeWork SA and victims and their families. Victims and families being unable to access details around the circumstances of a workplace accident or incident, and details about SafeWork's investigations, has caused significant distress for many over a long period.

The bill proposes reform for confidentiality requirements by giving SafeWork a greater discretion to disclose information to workers, families, businesses, and unions. This is intended to bring SafeWork closer into line with other prosecuting authorities like SAPOL and the DPP in terms of provisions for information disclosure. Some other amendments proposed include:

where a victim or their family has the opportunity to request that the DPP review a prosecution decision if SafeWork decides not to prosecute, amendments will ensure that victims and their families have an appropriate time frame of opportunity to request a review, and the DPP has sufficient time to consider all the evidence and provide advice on whether a prosecution should be pursued;

the formal establishment of a SafeWork SA advisory committee, a body that will include representation from unions and businesses, and will provide advice to the government and to SafeWork about ways to improve work health and safety;

union entry permit holders will be able to take photo and video recordings in the course of investigating health and safety issues. Any recordings, however, will be subject to stringent confidentiality requirements; and

an Executive Director of SafeWork SA will be appointed by the Governor, which is similar to provisions for most other regulatory authorities in our state.

The bill also provides for a review of these amendments after two years. Once completed, I understand that this review will be tabled in the parliament.

I would like to acknowledge and commend the wide range of stakeholders who have contributed to the independent review of SafeWork SA, as well as to the subsequent government consultation process in the development of these amendments. Among those stakeholders, I pay particular tribute to VOID and its representatives—families who, having lost so much, amazingly have found the strength and the will to fight on in the hope that no more South Australian families will have to suffer as they have suffered.

All parties came to the table in good faith, and we believe that stronger outcomes have been reached as a result of the shared spirit of desire to create necessary and favourable change. I am proud to commend this bill to the council.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:28): I thank all members for their contribution on this very important bill. A number of contributions mentioned the consultation that has taken place, so I thought it might be worthwhile setting out some of the consultation that has taken place. As members have noted, there was a root-and-branch review of SafeWork SA conducted by John Merritt, the former regulator in Victoria, in late 2022.

As part of that Merritt review, there were 55 different meetings with individual and stakeholder groups, and 29 written submissions. There was an initial consultation paper, in relation to the changes that we see here today, released at the end of 2023. There was an initial draft bill released that involved further consultation, as well as a further bill that we see before us today.

In terms of people who have been part of the consultation process, they include business groups that include the Ai Group, the Association of Mining and Exploration Companies, the Australian Hotels Association, the Civil Contractors Federation, the Housing Industry Association, the Master Builders Association, the Motor Trade Association, the National Electrical and Communications Association, the National Fire Industry Association, the SA Business Chamber, the self-insured employers of South Australia and the Wine Industry Association.

Employee groups included the Ambulance Employees Association; the Australian Education Union; the Australian Manufacturing Workers' Union; the Australian Nursing and Midwifery Federation; the Australian Services Union; the Australian Workers' Union; the Communications, Electrical, Energy and Plumbing Union; the Construction, Forestry, Maritime, Mining and Energy Union; the Health Services Union; the public services union; the SA Salaried Medical Officers Association; SA Unions; the Shop, Distributive and Allied Employees Association; the United Fire Fighters Union and the United Workers Union.

Safety professionals and groups involved in consultation included the Australian Institute of Health and Safety, the Australian Institute of Occupational Hygienists, the Dust Diseases Alliance and the Mining and Quarrying Occupational Health and Safety Committee. Legal groups and firms that have been involved have included Johnston Withers Lawyers, the Law Society of South Australian, ReturnToWorkSA, and Wearing and Blairs. Of course, and very importantly, victims and families included, as have been mentioned in contributions, Andrea Madeley, Keith Woodford and representatives and VOID—the Voice of Industrial Death.

There has been extraordinarily extensive consultation on this bill that we have ended up with today, and I want to thank all of the groups that have been part of the consultation. I know many of those that I have mentioned I have personally spoken with either individually or in group meetings. I think we have arrived at a bill that does a lot to protect worker safety and make sure work health and safety laws are as effective as they can be.

One of the contributions from the opposition outlined a need to fund SafeWork better to do this work. That is actually a particularly galling sort of proposition from the opposition. Over the four years that South Australia had a Liberal government in this century we saw what I am advised is the biggest reduction we have ever seen to SafeWork SA. Between 2018 and 2022 there was a reduction, I am advised, of nearly $7.6 million, budget cuts which forced SafeWork SA to slash 35 full-time positions, losing dozens of experienced staff dedicated to education and training and preventing unsafe workplaces. That is a loss of nearly 20 per cent of the total budget of SafeWork SA compared with when the Liberals came to government in 2018.

We know that the Liberals' action in government is very, very clear: they reduce funding for workplace health and safety. In comparison, we have made record investments to rebuild SafeWork's capacity after the four years of the Liberal government. In the last financial year alone, funding for SafeWork was increased by $5.7 million—funding for new investigators and inspectors, including the creation of a complex cases unit; additional training and support to help educate businesses about health and safety issues; more dedicated support for victims of workplace incidents and their families; and an overhaul of SafeWork SA's case management system to improve the efficiencies of investigations. Under this government, SafeWork has undergone a very significant recruitment drive and have added, I am advised, an additional 28 full-time positions since we came to government.

As others have mentioned in their contributions, the laws that we see in relation to work health and safety standing in bringing disputes to SAET are very closely modelled on laws that we see in Queensland that have been operating for a number of years. It is a tested model, and I am advised that there are something in the order of 10 disputes that are brought each year.

But there is an alternative, and it seems to be the alternative favoured by the opposition, and that is having more small businesses and businesses prosecuted in a criminal context for breaches of workplace safety laws. When you are faced with the alternative of having a mechanism where you can go to the independent umpire and seek mediation and conciliation and arbitration, or have criminal charges brought against a business, the opposition's preference is to let businesses, particularly small businesses, face criminal prosecutions rather than trying to resolve the matter earlier.

That is certainly not a proposition we on this side of the chamber share in any way, shape or form. The idea that you would prefer businesses, particularly small businesses, to be subject to criminal sanctions rather than a dispute resolution mechanism earlier we think is complete madness. That is why we are very passionate about this bill and the reforms in this bill. I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. H.M. GIROLAMO: In regard to the proposed compromised position here, who was consulted and who agreed with the current bill before us today?

The Hon. K.J. MAHER: In my second reading summing-up, I outlined the 12 business associations, the 15 employee associations, the four safety professional groups, the four legal groups and the four victims and families groups that were consulted with, so I am sure the honourable member can go back and consult Hansard.

We did what I think the public expects responsible governments to do. We released a draft, we released a consultation paper, and we released draft legislation. Both sides of this, the employer and the employee side, had different concerns with the initial piece of draft legislation. We went back and worked exceptionally closely and found a lot of good compromises, and we have the position that is before the chamber at the moment, which we think strikes a very good balance between competing interests but primarily looks at what will make workers safer.

The idea, as I said before, that seems to be the proposal from the opposition, that it is preferable for small businesses to face a criminal trial, criminal prosecution, rather than addressing these matters earlier by way of mediation and conciliation, we just do not agree with, but I am going to welcome the now opposition taking to the next election what seems to be their view, that they would like to reverse these changes and subject small businesses to criminal sanctions rather than try to address work health and safety matters earlier.

We welcome that, and further contributions today from the opposition will be very telling. They will set a tone and will provide a very stark contrast between the Liberal Party and the Labor Party at the next election. We would very much welcome the opposition putting more information and restating their position on Hansard that they would prefer criminal sanctions to apply to small businesses rather than a mediated outcome.

The Hon. D.G.E. HOOD: I indicate to the chamber that I have a number of questions, I think starting at clause 5. The Liberal Party was given its briefing on this bill, on this final version, last Wednesday, I think it was, and of course that had to be communicated through our party. It was, and then I have been contacted by a number of constituents in that time. My questions are directly from them, essentially, and I will put those to the Attorney. They are not partisan questions. They are questions of more detail on how the bill will operate in order to provide a greater understanding. My first question will be at clause 5.

The CHAIR: I am going to put it that clause 1 stand as printed. Those for the question say aye, against say no.

The Hon. H.M. Girolamo interjecting:

The CHAIR: If you cannot stand up, you do not get to ask a question.

The Hon. H.M. Girolamo: I let the Hon. Mr Hood go first and then I was—

The CHAIR: And then you were going to do what? Ask your question.

The Hon. H.M. GIROLAMO: What does the minister have to say in response to Safe Work Australia's view that the state process is working effectively as it currently stands?

The Hon. T.A. FRANKS: Point of order, Chair.

The CHAIR: What is your point of order?

The Hon. T.A. FRANKS: What clause are we in?

The CHAIR: We are still at clause 1.

The Hon. T.A. FRANKS: Did we not just pass clause 1?

The CHAIR: I never deliberated on the vote. To the Hon. Ms Girolamo I will extend the courtesy, but I want people to indicate and get on their feet if they are going to ask a question. Do not just sit there and expect me to wait for something to happen.

The Hon. T.A. FRANKS: Point of order, Chair.

The CHAIR: What is your point of order?

The Hon. T.A. FRANKS: When a vote has commenced, can any other item of business, such as a procedure or indeed an interruption that somebody wanted to speak, then override the vote being taken?

The CHAIR: My advice is that certainly if it were a division being called for and once it is underway then I do not have the discretion. In this case I am going to use my discretion. I am going to allow the question, but I made the point quite clearly that if you are going to make a contribution you must get on your feet so that I can see that you are ready to go. So you ask your question.

The Hon. K.J. MAHER: Quite simply, we had a very extensive review. In my second reading summing-up contribution I outlined a number of responses, interviews and written submissions to that review. Based on that and the extensive consultations since, we as a government have come to the conclusion that this is the best way forward that meets the needs of all the various stakeholders.

But, as I have said, as we go through the committee stage, and particularly from the opposition's statements already made, we are going to welcome a debate in the lead-up to the next election on the opposition's view that criminal sanctions are best for small business, compared to our view of resolving these disputes by way of mediation and conciliation earlier and better. I think it is a debate that we very much relish and will be prosecuting in the lead-up to the election.

The Hon. N.J. CENTOFANTI: Can the minister inform whether or not a union can lodge a WHS dispute off their own back, or do they need to have the permission of the employee?

The Hon. K.J. MAHER: Registered unions, I am advised, are one of the classes that will have standing to bring a dispute.

The Hon. N.J. CENTOFANTI: Are they able to do that if the employee does not want to take it to SAET?

The Hon. K.J. MAHER: I thank the honourable member for her question. I think it stems from an absolute and fundamental misunderstanding of how our work health and safety system operates. Not every work health and safety breach will have one specific employee who is affected by it. You may have a piece of machinery, a piece of equipment, that is capable, in the state it is in, of killing a worker, but there might not be a specific worker who has suffered as a result of that. I think the question stems from just a fundamental misunderstanding that every work health and safety dispute necessarily involves a single employee. That is just not the case.

The Hon. H.M. GIROLAMO: Has the minister considered whether the reform will have an impact on the baseline cost of building and construction in South Australia?

The Hon. K.J. MAHER: There is no reason to believe it will increase costs in the building and construction sector. In fact, it may well reduce costs in the building and construction sector by allowing disputes to be resolved much more efficiently and much faster.

The Hon. H.M. GIROLAMO: Can you confirm that the SAET presiding officer has indicated that they require no additional funds to take on the additional jurisdiction?

The Hon. K.J. MAHER: Yes, I can confirm that.

The Hon. H.M. GIROLAMO: When is the government seeking to have the reforms operational by?

The Hon. K.J. MAHER: We seek to have these implemented as soon as possible, obviously after consultation, particularly with SAET, which will be the jurisdiction that these will be heard in.

The Hon. H.M. GIROLAMO: Has the Attorney indicated to stakeholders that if these changes do not go through it would impact on the premiums relating to Return to Work?

The Hon. K.J. MAHER: I think I understand where the question is going, but I do not think it has been framed very well by the member, so let me try to unpack what the member is trying to say. I am assuming what the member is saying is if these reforms do not go through, as some stakeholders and employer groups have suggested, to significantly beef up the resources to SafeWork SA—which is, I think, one of the things the honourable member is trying to get at, although quite confusingly, in her second reading contribution.

If it is the case that the honourable member is suggesting that SafeWork SA should be much more substantially resourced rather than having the model proposed in this bill, a significant portion of the funding for SafeWork SA comes from return to work levies, so it is possible that if it was an alternative—as some employer groups have suggested and as I think the honourable member suggested in her second reading contribution—that SafeWork SA ought to be funded to do much more of this work, it could have an effect on return to work premiums.

Once again, we will have a good look at what the honourable member has said, because it might just be that one of the consequences of the opposition's view on this could be an increase in the return to work levy which, of course, we will be happy to take as part of the debate in the lead-up to the next state election.

The Hon. C. BONAROS: In relation to the questions asked previously by the opposition, can the Attorney confirm that the cases we are talking about where civil penalties may apply are where SAET has resolved a dispute by arbitration, there has subsequently been a breach of an order by SAET and somebody—whoever it is, whether it is a union or the person involved—has then sought a remedy for the breach that has already been the subject of a resolution via arbitration?

The Hon. K.J. MAHER: Yes, in effect, that is what is proposed in this model. As in the model in Queensland, if there is an arbitral order made that is breached, there can be an application taken out by the regulator or, in this case in South Australia, by a party affected like an employer group or a union, but the penalty, like penalties for breaching other orders in other jurisdictions, will be payable to general revenue and not to anyone bringing the application.

The Hon. C. BONAROS: So, to be crystal clear, where there is an arbitration taken to SAET, there is a resolution by SAET, the parties are bound by that resolution and then the employer continues to breach that same order that has been the subject of a SAET resolution, it is only in those cases and not prior that a civil penalty can be imposed?

The Hon. K.J. MAHER: I can advise the honourable member that is, in effect, correct. But I will add that there are important steps before you even get to those arbitral decisions, namely conciliation and mediation, which you would expect. Certainly, the experience is that where there is conciliation and mediation in other areas of industrial disputes and industrial matters, these tend to resolve the matter. As I have said, there is an alternative model that we can stick to and that is being put by the opposition: that small business should face criminal prosecution rather than this conciliation, mediation and arbitral model.

The Hon. C. BONAROS: Following on from that, noting what the Attorney has just said, can we also confirm that there has to be an application for that civil penalty? It is not automatic, so there is not a breach and then an automatic penalty; somebody has to apply to say, 'Here's the order that you have made, SAET,' and the regulator or the party affected then says, 'There has been a breach,' and that has to be determined first before any civil penalty can apply.

The Hon. K.J. MAHER: In effect, that is correct. As I have said before, upon application, if there is a breach of an arbitral order—which I think can already happen in our industrial relations system in South Australia, but I do not have the list of circumstances—effectively, as in other jurisdictions where it is a contempt of court if you have breached an order that a court has made, where you breach an arbitral order in the industrial relations system in South Australia already in other areas applications can be made and penalties imposed.

The Hon. C. BONAROS: Just to be crystal clear, because there are a lot of discussions here around unions, the parties to a dispute are not limited to just unions, are they? Member organisations—I think it is defined as, effectively, those groups that represent workers, not just unions, so association bodies, for instance—if they are classified appropriately, would also be eligible to do the same as a union?

The Hon. K.J. MAHER: I thank the honourable member for her question. Certainly, under what is being proposed here and to some extent under what already exists, employer associations can bring applications under SAET for things, for example, like breach of right of entry permits.

The Hon. C. BONAROS: So hypothetically then if the MBA or the AHA or the HIA met those requirements and they have a health and safety representative and they have ticked the box in terms of the organisation they could be one of the parties, if indeed they are classified as a health and safety representative for that group, which meet the requisite definitions in the legislation?

The Hon. K.J. MAHER: I can confirm that, very similarly to the standing that organisations that represent employees have, organisations that represent employers will have standing in this model, as they do in limited circumstances now, and that will typically be in areas like alleged breaches of right of entry, and both of those groups would have the potential to bring actions for breach of an order in these respects too.

The Hon. C. BONAROS: Just to be clear, the changes are not limited just to unions and union right of entry, are they? They go well beyond that scope and include potentially all of the groups that you have listed today.

The Hon. K.J. MAHER: Yes, I can confirm that.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. D.G.E. HOOD: I have a few questions for the Attorney at clause 5. The Attorney outlined in his summing-up of the debate at the end of the second reading stage that I think there were eight industry groups in support of the legislation.

The Hon. K.J. Maher interjecting:

The Hon. D.G.E. HOOD: It was about that, yes. He might correct me when he gives his answer. Can I specifically ask, Attorney: were there any industry groups that expressed concern about the composition of the advisory committee itself?

The Hon. K.J. MAHER: I thank the honourable member for his question. I talked about the changes in relation to, in particular, the consultation paper, the draft legislation in relation to the work health and safety matter that forms a lot of the substance of this bill, and I think I outlined 12 industry groups that were part of that consultation. I am advised that I cannot recall concern being raised either on the employee or employer group side that makes up the advisory committee under Division 5 of the bill. I attended a number of those advisory committee meetings myself and have been pretty impressed with how well it is working, and I think it will bring good results for the work that SafeWork do.

The Hon. D.G.E. HOOD: Was 15 arrived at as a continuation, essentially? Is that how the number 15 was arrived at for the number of members?

The Hon. K.J. MAHER: I am advised that, yes, it is a continuation into legislation of what currently exists. That does not mean it will necessarily be all of those same members forever more, but a continuation of that sort of representation. It is very deliberately set up and it was a recommendation of that Merritt review of a tripartite committee that brings together regulators as well as employer and employee groups.

The Hon. D.G.E. HOOD: The bill talks about the minister being responsible for appointing the individuals. What is that process? How do you determine individual A is a worthy member and individual B is not, for example?

The Hon. K.J. MAHER: I expect the process will continue and there are many processes under many pieces of legislation that have representatives of different stakeholder areas and groups within those stakeholder areas. The process to appoint the initial members to the advisory committee was writing to both industry and employer groups and asking for nominations. That is a very common practice, and I would expect that would be how it continues.

The Hon. D.G.E. HOOD: Can the minister overrule those who are nominated? Is it ultimately a decision of the minister?

The Hon. K.J. MAHER: At the end of the day it is a decision of the minister, as it was for the appointment of the original ones, as continuing in the legislation and as occurs under many pieces of legislation much like this. Certainly in my experience, and with this in particular, it is taking into account and generally following the advice that comes in from those different groups represented on a committee that seeks to represent a number of different views.

The Hon. D.G.E. HOOD: I thank the Attorney for the answer. Are any tests applied in terms of a fit and proper person, for example? If one of the bodies nominated somebody the industry was uncomfortable with, what happens then?

The Hon. K.J. MAHER: Ultimately, that would be a matter for the minister and whatever was the appointment process laid out. Certainly, I do not recall any concern that anyone has raised in relation to this particular committee and appointment to it.

The Hon. H.M. GIROLAMO: Can a representative of the CFMEU be appointed to the board and collect board fees as a result of this bill?

The Hon. K.J. MAHER: Just to be clear—and this goes to probably a misunderstanding and a misreading—it is not a board, it is a committee, but yes.

The Hon. H.M. GIROLAMO: My question stands: can the—

The Hon. K.J. MAHER: I just said yes.

The Hon. H.M. GIROLAMO: Thank you, I did not hear that. For how long has the SafeWork advisory committee been functioning so far?

The Hon. K.J. MAHER: Approximately a year.

Clause passed.

Clause 6.

The Hon. H.M. GIROLAMO: In regard to the opposition's position on clauses 6 through to 12, we will oppose all of those clauses and be calling for a division at clause 6. I want it noted for the record, based on our contribution, that we oppose this clause.

The committee divided on the clause:

Ayes 11

Noes 8

Majority 3

AYES

NOES

PAIRS

Clause thus passed.

The CHAIR: I am going to put it that clauses 7 to 12 stand as printed. Those for the question say aye, against say no. The ayes have it. Any contributions on clauses 13—

The Hon. T.A. FRANKS: Excuse me, Chair.

The CHAIR: Sorry.

The Hon. T.A. FRANKS: We had not even been able to return to our seats when you put the question. Is that appropriate parliamentary procedure?

The CHAIR: I apologise, the Hon. Ms Franks. If everybody is seated now, I will put the question again.

Clauses 7 to 13 passed.

Clause 14.

The Hon. D.G.E. HOOD: This is a new provision, and I think we all understand why it is needed, but my simple question is: did any industry group oppose this clause, or any group?

The Hon. K.J. MAHER: I thank the honourable member for his question. My answer is, not that I recall.

Clause passed.

Clauses 15 to 18 passed.

Clause 19.

The Hon. D.G.E. HOOD: I have a question for the Attorney at clause 19. If an order is made against a business or an individual under this clause, specifically subclause (1)(c), do the normal provisions—I am talking about an individual in particular here—around bankruptcy protections apply?

The Hon. K.J. MAHER: My advice is that this does not change any of the ways that bankruptcy laws apply to anything that a court may have as a penalty. This does not change the way that works.

Clause passed.

Clause 20.

The Hon. D.G.E. HOOD: Just to be clear, I have a question here, and then another one on 23. This clause deals with disclosure of information and how it can be disclosed. I think there is a number of sensible provisions in here which would have assisted in previous cases where exactly these provisions would have been helpful, actually. This is not trying to draw a very long bow, but it does not specifically exclude media, for example, in this clause. What if, in a long-shot type of scenario, media was able to get hold of this information? Does it exclude the media from disclosing what could be sensitive and potentially damaging information?

The Hon. K.J. MAHER: Just to understand the honourable member's question, is the honourable member asking whether it gives a right for media organisations to make an application under this section, or is he asking whether this changes the way that media organisations may be able to report under this section?

The Hon. D.G.E. HOOD: I think they are both valid questions, if the Attorney is happy to answer them.

The Hon. K.J. MAHER: My advice is that media organisations are not a party who are capable of making an application under this section, but under the confidentiality of information generally in the act this section does not disturb that. If information is not released and remains confidential, my advice is this section does not change that as well.

The CHAIR: Do you want to move your amendments to clause 20?

The Hon. K.J. MAHER: I move:

Amendment No 1 [IndRelPubSec–1]—

Page 16, line 26 [clause 20, inserted section 271A(3)(a)]—Delete 'A' and substitute:

Subject to subsection (3a), a

Amendment No 2 [IndRelPubSec–1]—

Page 16, after line 32 [clause 20, inserted section 271A]—After subsection (3) insert:

(3a) Subsection (3)(b) does not apply in relation to a disclosure made to a family member of a person who is deceased as a result of the incident.

As currently drafted in the bill, the discretion to release information under section 271A applies strictly prospectively; that is, from the passage of this bill in relation to instances that occur after the act comes into effect. This amendment creates a small exception, which will allow for the regulator to consider and then have the potential to disclose information in relation to past incidents to a family member of a person who is deceased as a result of the incident.

This removes a barrier to the regulator sharing more information to families affected by the workplace death, and we have heard in contributions by members in this chamber of some of the incidences that have occurred where a worker has died as a result of a workplace incident, and some of the effects that has had, particularly on families in relation to what brought about the decision by the regulator to or not to prosecute.

The regulator still retains that discretion about what information is released in those circumstances, but we thought having that carve-out that provided the regulator with the ability to provide family members with some of that information in past cases where there has been a workplace death is appropriate, so I commend the amendments to the chamber.

Amendments carried; clause as amended passed.

New clause 20A.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 17, after line 16—After clause 20 insert:

20A—Insertion of sections 272A and 272B

After section 272 insert:

272A—Insurance or other indemnity against penalties

(1) A person must not, without reasonable excuse—

(a) enter into a contract of insurance or other arrangement that purports to insure or indemnify a person for a liability for all or part of a monetary penalty under this Act; or

(b) provide a contract of insurance or an indemnity for a liability for all or part of a monetary penalty under this Act; or

(c) take the benefit of a contract of insurance or other arrangement, or an indemnity, that purports to insure or indemnify a person for a liability for all or part of a monetary penalty under this Act.

Maximum penalty: $50,000.

(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

(3) A term of a contract of insurance or other arrangement, or an indemnity, is void to the extent it purports to insure or indemnify a person for a liability for all or part of a monetary penalty under this Act.

272B—Officer may be taken to have committed offence against section 272A

(1) If a body corporate commits an offence against section 272A, each officer of the body corporate is taken to have also committed the offence if—

(a) the officer authorised or permitted the body corporate's conduct constituting the offence; or

(b) the officer was, directly or indirectly, knowingly concerned in the body corporate's conduct constituting the offence.

(2) The officer of the body corporate may be proceeded against for, and convicted of, the offence against section 272A whether or not the body corporate has been proceeded against for, or convicted of, the offence.

(3) This section does not affect either of the following:

(a) the liability of the body corporate for the offence against section 272A;

(b) the liability of any person, whether or not the person is an officer of the body corporate, for the offence against section 272A.

This inserts 272A—Insurance or other indemnity against penalties, and 272B—Officer may be taken to have committed offence against section 272A. Put simply, the addition of this section implements recommendation 26 of the 2018 Boland review of the Model Work Health and Safety Laws. This amendment prohibits employers from insuring themselves against penalties under the Work Health and Safety Act.

The purpose of this is to deter noncompliance with the act, and this amendment is taken, as I mentioned in my second reading contribution, from the Queensland legislation, which became effective in March this year. I noted in my second reading contribution that this is now in place in the majority of jurisdictions in this country. Indeed, it is timely for South Australia to follow the lead of those jurisdictions and, in this case, to follow the model of Queensland. With that I commend the amendment.

The Hon. K.J. MAHER: The government will be supporting this amendment. It effectively prohibits a person obtaining insurance and an indemnity against penalties for contraventions of the Work Health and Safety Act. The amendment would still allow and permits people to insure against the legal costs of defending proceedings. It is the insurance for penalty or damages for breaching the law that this amendment seeks to prohibit, and this amendment is consistent, as the honourable member has pointed out, with laws already in place in Queensland, New South Wales, ACT, Victoria and Western Australia, and is in line with the harmonised national work health and safety laws. It also reflects changes made to the model laws following recommendations from the Boland review.

The Boland review found that there are insurance contracts that are offered on the market which purport to indemnify against penalties for breaches of work health and safety acts even though such insurance may well be unlawful, if challenged, as there is common law authority for such insurance policies being unlawful, but it would actually require someone to challenge the legality of those insurance policies. The Boland review in particular found that it has the potential to reduce compliance with workplace laws and undermine community confidence, particularly if we were to see businesses not facing the consequences of a penalty associated with serious injuries and workplace deaths.

The Hon. H.M. GIROLAMO: At this stage the opposition is not supportive of the amendment; however, we would like to take time between the houses to look into it further.

The Hon. C. BONAROS: I indicate, for the reasons already outlined by the mover and the Attorney, that I will be supporting the amendment.

New clause inserted.

Clauses 21 and 22 passed.

Clause 23.

The Hon. D.G.E. HOOD: My final question for the Attorney: a subsection of the new section inserted in schedule 5 by clause 23 deals with the appointment of the executive director. New section 3(4) talks about the minister giving directions to the executive director. I would like to inquire under what circumstances those directions would be given and what they would likely be.

The Hon. K.J. MAHER: They would be quite limited in relation to what directions could be given—I am advised things like HR or internal or employment or disciplinary processes. The new subsection under the one the honourable member refers to, new subsection (5), makes it very clear, and I will just read it out:

The Minister may not give directions to the Executive Director in respect of the exercise of powers and functions under this Act.

Clause passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.