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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 February 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:44): I rise to speak on the Work Health and Safety (Prosecutions Under Repeal Act) Amendment Bill 2015 and indicate to the house that I will be the lead speaker. The Hon. Rob Lucas of another place is the opposition spokesperson on industrial matters. This is an area of particular interest that the Leader of the Opposition has taken up. Unfortunately he is unable to contribute directly to this debate, but I know that it is a matter of great concern for him.

I say at the outset that the opposition will be opposing this bill and that is after quite a lot of consideration, extensive consultation and some heart-wrenching concern in light of the circumstances in which this bill is brought before us, which in short is to try to give some justice to the families of two workers, one of whom was fatally injured in a workplace and another who had very serious head injuries. This bill was born in an environment in which there are two grieving families in respect of the human element of the bills that we deal with and this is quite pertinent.

In short, the government effectively failed to properly administer the prosecution of the employers (I think via companies) in respect of their alleged either misconduct or neglect or in some way contributing obviously to a culpable responsibility for the health and welfare of these two workers. It is that blatant administrative failing on behalf of the government which has resulted in two employers, on the face of it, getting away with not being prosecuted for any failings on their part and who could be claimed to be in breach of their obligations.

The fact that we are debating this bill in that environment is one which has very much weighed on the heart of many of our members because at first blush, even if a government or its representatives—in this case officers within SafeWork SA—have failed to act in a competent manner to ensure the proper administration of legislation, should others get away with it?

There is no comment that we wish to make in a contribution in this debate as to whether the employers of the two workers in question are, or would likely to have been found, guilty in respect of any prosecution. We are not here to either arbitrate that or be in a position to have sufficient information before us as to whether that would be a likely consequence of the prosecutions. That is not something that we can do, but what we are being asked to do is to amend legislation, in particular the Work Health and Safety Act 2012, to facilitate prosecutions occurring under the old occupational health, safety and welfare act of 1986.

Our understanding is that this bill inserts a new transitional provision into the Work Health and Safety Act which allows the minister (in this case, the Minister for Industrial Relations, the Attorney-General, Mr Rau) to extend the time to commence proceedings for an offence. That of course will now take place under the now replaced Occupational Health, Safety and Welfare Act 1986. It will give the minister the capacity to do what currently cannot occur because the two-year time limit is up.

Again, if I could relate back to the two cases, my understanding is that on 9 October 2012 an employee received fatal injuries; therefore, the time under the old legislation for the two-year statutory time limit expired on 9 October 2014. The second incident occurred on 22 October 2012, when an employee received significant facial injuries; therefore, that right to prosecute, being at the end of the two-year statutory time limit, expired on 22 October 2014.

The technicality, as the government suggests, or the technical error, as I understand it, relates to the authority of the person who laid the prosecution process in filing the complaints against the employers, which has resulted in those prosecutions failing. The time limit expired, and of course they were then left with no remedy to prosecute under that process.

The minister, through the second reading to the house, said, 'We need to cover these two cases. They should be prosecuted. Give me the power to be able to authorise that to happen by this amendment.' He has indicated that there are no other proceedings under that Occupational Health, Safety and Welfare Act which would apply or have the opportunity to be prosecuted under his hand as a result of this amendment. In other words, 'I'm not coming along here to ask for this amendment to cover these two cases, and there are a whole lot of others waiting behind that I could exercise the right to explore or proceed to prosecute, because there had been this general failure on behalf of the SafeWork SA prosecutors. So, you needn't be worried; this bill will only affect these two cases.'

We do not have any direct confirmation of whether or not that is the case. I have no reason to suggest that the Attorney/minister is any way in error in that regard. I totally accept that he understands that it would apply only to these two cases; nevertheless, we do not have any confirmation of that. So, here is the dilemma: the government are saying, 'Because of the circumstances of these two cases, it is not fair that these families be left without some remedy of seeing the employers prosecuted and go through that process; therefore, we want you to do something very unusual as a parliament: we want you to retrospectively allow the minister to have power to prosecute cases when there has been this deficiency.' That, in short, goes against every principle in respect of the prosecution of criminal matters.

At this point, may I say that, whilst there are a number of parties who have presented submissions to us who are also sympathetic to the families' position, but have put a very persuasive argument to ensure that we maintain that principle, the parliament should be aware that the prosecution of the two employers in itself does nothing to provide a direct financial benefit to the families who have lost someone as a result of this apparent neglect or misconduct.

As part of the criminal law process, it does, I suppose, give the families some comfort to know that there is some level of punishment if they are found guilty. They might have to pay quite a substantial fine, and I will come to the fines that apply in this area shortly. It might give some comfort that, if they are prosecuted and found guilty, they not only have to pay significant fines, but it may be that that prosecution, if successful, is a sobering reminder to the employer that they should act with better precautions in the future or that their action or inaction is remedied to ensure the safety of their workers in the future, but it does not actually give any direct funds or compensation to the families themselves. It has the benefit, as most criminal prosecutions do, that if they are successful, the public can think, 'Well, they had to pay a bit of a price for that bad conduct.'

How the families get relief directly, of course, has to come in another way. There has to be some conduct on the basis of which there is a statutory entitlement arising out of the injury in the workplace and that may be through WorkCover or workers compensation legislation (we now call it the Fair Work Act) and/or civil law proceedings—that is, the law of torts—to cover compensation from an employer or other agency. Nowadays, it may not just be the employer; it might be the supervisor or the company directors or a number of people who can be approached for the purposes of securing some compensation for the victim and/or their families. That is the process through which they might move—and may have already moved—to have some recompense.

There is a third way of getting some funds. Sometimes, in special circumstances, i.e., the family themselves are impeded from any recovery of a benefit because of a time limit or there is some other circumstance where they do not have a claim through which to recover moneys, but on all accounts it seems to be unfair that that person has been treated poorly, the government, and in particular, the minister, can authorise an ex gratia payment to that party out of the taxpayer reserves.

That happens from time to time. Sometimes it happens because there is nothing else out there in the legal process that gives them some relief. Sometimes it happens because the government does not act competently or properly or in a manner that is at a standard where, if they had, perhaps this person would not have been exposed to damage and loss or injury and, therefore, they write out the cheque. Sometimes their own departments or employees have not acted responsibly.

I can think of one case, in my previous life when I was a normal person, where a compensation payment was made as an ex gratia payment to a party who had been involved in proceedings with the department of community welfare, now Families SA. It was clear that officers of that department had acted in a manner that was so inappropriate, offensive at some levels, that in any event the subsequent attorney-general authorised the writing out of a cheque for over $400,000 to that person.

That is a situation, in this case, which I think is still open to the government; that is, the minister identifies that someone under his responsibility, as I understand it, in SafeWork SA has not acted competently. They have not got proper advice as the to transfer of the proceedings or who is to be properly authorised to issue the complaints or who in SafeWork SA is responsible for making sure that proceedings are issued within the two-year period and has failed to do so, or if they were not sure, failed to get advice from the Crown Solicitor's Office.

There are situations here where the government is coming to us to say, 'Look these two cases deserve us to retrospectively change the law so that they can have the chance of their loved ones' former employers being charged.' The alternate is very clear; that is, the government could say, 'We didn't keep an eye on this properly.' I do not know whether it was someone in SafeWork South Australia or the Crown Solicitor's Office—I am not here to pinpoint as to who is to blame—all I know is that somebody did not properly ensure, consistent with the changes under this law, that these prosecutions were not issued lawfully before the two-year period.

The answer is, of course, that the government could say to these families, 'Look, unfortunately we stuffed up here but we recognise the circumstances that you are in so we would be happy to talk to you about an ex gratia payment to, in some way, indicate to you that we feel very concerned that you be left without even the chance to see some justice in this case.' Again, they may not ever be successfully prosecuted—as I say, we are not here to determine the merits of that. However, that is an option that is open to the Attorney. I do know not whether he has done it or whether he has offered it or whether he thinks it is even appropriate, but what I do know is that, when governments do stuff up and they do not apply the rules then, in these types of situations, they do not have an option to come in here and ask us to retrospectively change the law but an option to go to the families in those circumstances.

It may be that they say that that would not be enough. 'We want these people prosecuted. We want to take our chances in court. We want to give evidence. My husband or father has lost his life or has had severe facial injuries and, in either case, we want our day in court. We want justice to prevail. If they do not get prosecuted in the end and they do not get convicted, so be it, but in the meantime we want that to occur.'

The Attorney has been completely silent on what other options might have been put to this family. So, out in the real world, the usual suspects (if I can put it that way) are the people who have an interest in this: people such as Business SA who represent employers; the Law Society of South Australia who represent the lawyers and, of course, are really the keepers of the proper legal process in matters, particularly when someone is the subject of a prosecution as a criminal offence and, in this case, the alleged guilt of companies who are currently escaping prosecution.

We have the parties who are coming forward and saying, 'Don't go down this line; it's not acceptable.' Then there are the others who say, 'Look, we're not very keen on that process but we'd sort of understand if you supported the government on this because it's such a sad case—a couple of these—and we don't want people to feel aggrieved.' As I say, the government had another way to remedy that. It is their stuff-up and they could have actually taken that approach.

In particular let's just go to those who have presented to us. First, Business SA—unsurprisingly, you might say, they are strongly opposed to the bill. In short, they say that the statutes of limitation exist to protect the defendants who are innocent of any offence (until proven guilty) from the threat of protracted proceedings and to ensure that proceedings are pursued diligently while the evidence and witness accounts are still available and relatively fresh.

That really incorporates the fundamental principle about why we have limitations of action. We have limitations of action for civil proceedings as well. We do not have them for some criminal offences such as murder. You can have committed a murder decades ago and still be called before the courts if you are found to be guilty. There are exceptional circumstances such as the murder of someone, where the lawmakers have made it clear that there is no price for justice as such.

There needs to be the capacity to prosecute these people no matter how long it might take to get sufficient evidence to prosecute. We now see cases in that field, for example, occurring lifetimes later as a result of increased technological advancement, particularly the use of DNA evidence. Back to this case, though. Business SA say:

Retrospective legislation is rarely good policy. It should only be considered in relation to criminal matters in the most extreme circumstances as is well recognised in jurisprudence to be a fundamental human right that should not be abrogated by retrospective legislation in order to achieve a criminal conviction.

They go on to say, quote:

As stated earlier, we empathise with the family but want justice to be done by way of a proper legal process.

Frankly, however, the only one that arguably has denied the family justice is the Government because of what appears to be an inexplicable error of the Regulator and/or the Crown Solicitor.

Accordingly, it's those agencies that should be held to be accountable.

They go on to deal with some secondary matters which, as I say, relate to whether or not the application of this bill is confined just to these two cases. It has not been drafted in that way. It could apply to any other cases that might come out of the woodwork that are found to have been defective in process, and, therefore, with that additional risk they strongly oppose it. The Law Society again are strongly opposed. They say, and I quote:

The Society is concerned that the legislation operates to retrospectively target a defendant in circumstances where there are clear limitations of time as to the bringing of proceedings and including in circumstances where there are questions of technical errors, mistakes or incompetence. For those reasons, the Society does not support the bill.

They go on to say that, in the event that the legislation is passed and has the retrospective effect of undoing past dismissals of proceedings, due to having being withdrawn, discharged or dismissed, due to an error, and if the employers (these two employers in this case) have incurred costs in respect of previous aborted proceedings, then those costs should be fully refunded.

As I understand it, what has occurred in at least one of these cases is that when the complaint was laid, that is, the matter was opened up to be prosecuted, the lawyers for the employer raised this point, that is, that the complaint was defective, and that was found to be the case—in fact, it is what alerted the government to the complete stuff up here—and therefore the complaints failed.

However, the employer has been put to that expense to raise this issue and has to deal with this side issue, if we can describe it as that. It is still costly for them, and if they are in it and they are innocent until proven guilty in relation to this then they should be starting with a commitment from the government that they will indemnify their costs for that, and then we would be starting again.

If, of course, they are subsequently found guilty through a proper process, a lawful process, as a result of this legislation passing and they are found guilty, then it would be up to the authorities to determine what costs they need to pay, of even the Crown Solicitor's office or, of course, any other expenses of the government that are found in a cost order, and, indeed, any fines that they might incur as a result of being convicted.

That is the sort of position that has been taken there. Other employer bodies were very keen to express to us the principle of not supporting this bill. However, they felt the view that the circumstances of the families were such that they would understand, I think was about the general position of that, if we were to make an exception for these two cases. It very much weakens a fundamental principle to take that approach, but we understand their position as well. They are sort of saying, 'Well, look, we see from the public's point of view that, if the government were to say that those miserable other members of the parliament were so insensitive to the circumstances of these families that they objected to this law,' sure, when you look at that you would think that it is a bit sad and a bit mean, but the fact is that we are here dealing with this bill because of a stuff-up on the government's side and not because of anything the parliament has done, and they are asking us to clean up their mess.

If the government had any whisker of feeling of responsibility for what has occurred, and sympathy for the families left bereft of this opportunity to feel that they have had a day of justice, then surely it would have presented to these families some offer of an ex gratia payment. I find it incomprehensible that it would come to the parliament and say, 'Well, look, we want you to fix up this mess.' It is like they do not even want to go back to these families and admit it; they just want to say, 'Well, we'll just tidy this up in legislation, we'll just throw out a basic principle of jurisprudence that is there for good reason because we've mucked up.' No, it does not work that way. We do not think it should be thrown away in those circumstances.

We have previously been asked to consider retrospective legislation where there has been an unintended consequence to legislation. We have supported the government in some circumstances. In the time I have been here the government has come in and said that there was no intention of capturing a certain group in the community, but that they wanted to retrospectively deal with this to give some relief to parties that are inadvertently caught up, for example, or to protect the government against claims for an unintended capture of entitlement. We have supported the government in some retrospective legislation. We look at it very carefully, and we have understood in some circumstances, notwithstanding all the responsible and efficient endeavour on the part of the government, that there has been an error and we have fixed that up, but here they are asking us to go too far, and we are not prepared to do that.

The other aspect of this bill that I bring to the attention of the house is that we do not have any presentation from the government as to consultation occurring with one group which I would have thought would have been able to give valuable advice to the parliament, namely, the SafeWork SA Advisory Council. We have a situation where SafeWork SA (if I can in short say this—I hope I do not offend them in the sense of not identifying all their roles) has a regulatory role and an educative role in doing what is necessary to support people who are in charge of workplaces, usually employers, to make sure their workplaces are safe and that there is minimal opportunity for people to be injured or fatally wounded in the workplace.

They have a second role, which is the regulatory side, largely to ensure that, where they do not do the right thing or they consistently fail to take advice and remedy inaction (that is, conduct or omission in their behaviour to protect their employees) or provide sufficient protective material or barriers to protect against the likelihood of injury or death, they be prosecuted. They have a multifunctional role in this area but it is a very serious one. They are really, on behalf of the government, the police force and watchdog to ensure, as best we can, that places of employment are safe places that people attend.

For obvious reasons, we have sitting next to that a workers compensation regime which has a levy-based process which applies at the higher level (usually to the more dangerous workplaces) down to those that are a lesser risk. We have, alongside that workers compensation structure under the WorkCover Corporation, the self-employed, which is the government (the biggest employer in South Australia) and the bigger companies if they reach over the threshold in respect of the number of employees or have exemption, and they can self-insure.

We have a compensation structure. That has been played around with in recent years, but it is obviously designed to help with the rehabilitation costs when people are injured and it also has a prosecuting arm to try to make sure that the recalcitrant, lazy or just completely reckless employers do the right thing. I, for one, have always taken the view that SafeWork SA is placed in a situation, as both educator and regulator, of having a bit of a conflict of interest. I have never been a great supporter of those roles being combined, to be honest. However, they are a separate entity but they work in that environment.

Consistent with the occupational health and safety legislation, which is now covered by the Work Health and Safety Act, is that this SafeWork SA Advisory Council is a body established under that legislation. It is chaired by Mr Tom Phillips AM. It obviously has a board of competent people with a breadth of experience, including Mr Greg McCarthy who, as members would remember, is the Chief Executive Officer of WorkCover SA. There is a number of other people representing business, employees and health and rehabilitation services—as we say, the usual suspects in relation to that. I am sure they are all competent people.

They have a very specific role under the act to advise the minister on work health and safety matters on behalf of workers and businesses in South Australia, on standards, policy and legislative matters and also to promote the improvement and safety outcomes through targeted prevention programs, education and training. I am reading that from the report of their assessment as to what they are supposed to do. I have had a look through the 2013-14 annual report they gave to this parliament and they have put a number of recommendations regarding the work that they have done during the year and, in particular, the advice given to the minister.

The period of the defect in the process in these two cases before us did not become known until after 30 June 2014, which is the subject period of this report, so it is possible that they have been consulted about this legislation and have not yet reported to the parliament on what their recommendations were. But, if they were, it is puzzling to me, at best, as to why the Attorney has not provided their advice to us to consider, because they are the very body that is supposed to be giving advice on these matters. I have been provided with a long list of parties and organisations who have been provided with a copy of the bill, and I am sad to say that, notwithstanding a long list of businesses, unions, the Law Society and other parties such as the Australian Lawyers Alliance, the Police Association—various industry and union groups mostly—the SafeWork SA Advisory Council does not appear at all. That is not only disappointing but concerning, and I do want to know what their view is and whether in fact we should be supporting such legislation.

I think we are entitled to know and I think the Attorney should make clear to the parliament about what their view is. If he has not got it, then he should get it, and that should be presented to the parliament, even if they are keen to advance this legislation through the passage of this house today. Obviously, I can count; we clearly cannot vote down the bill at this point, and I do not want to do that at this point in any event. I accept that, for the moment, the government, whilst we oppose the bill, are keen for this bill not to be held up, but I just make the point that, having had a briefing last month and having sought extra information about who is being consulted, and then to find that the SafeWork SA Advisory Council did not even get a copy of the bill and we do not have anything before us as to their support or objection to it, then I think that should be provided, and it should certainly be provided between the houses.

The other matter is this: I do not have any information about whether the circumstances of these two cases have resulted in direct compensation being paid to either the family of the deceased or the injured worker. One of them was apparently a worker, as I say, nearly three years ago now, in a worksite for grain merchants in country South Australia and the other was on a construction site where the severe facial injuries occurred. I am not sure whether there has been any compensation paid to the widow if there was one or, in any event, to any family or dependents in the first instance, or to the injured worker and/or family members in the second.

I think, again, we should have that information before us, not because we want to indicate any judgement or criticism of the families in receiving that, but I think we should know that. It may be that, in fact, they have not even taken any action to try to recover any funds—I do not know—but I think it is reasonable that, if we are being asked to turn back time here and remedy a failing on behalf of the government, then we ought to at least know whether in fact these families have had some justice, I suppose, and some compensation at least through the civil processes and/or under the Fair Work Act.

Can I also say that SafeWork SA have been around for quite some time. It is not as though they are a completely new body. They have had a job for a long time; they know what their job is. When we consulted on this matter, it was made very clear by some of the parties that they were less than happy with the standard of work, in some cases, applied by SafeWork SA. I will be very specific about that, because I do not want to leave a general criticism out there. In particular, in these types of cases, it was a known practice of SafeWork SA to deliberately hold off the prosecution of cases until the last minute, that is, just before the two years expired under the old legislation.

There is a reason for that, and can I just say that it is not uncommon in civil proceedings, for example, for the parties to sue just before the three-year, one-year or six-year time limit is up for a civil claim, because the lawyers usually say that they want to be absolutely sure that, before the time limit has expired, they were able to make the best possible assessment with all the doctors as to what the injuries are and what they are likely to produce in long-term disability and impediment before they lodge their claim. So, there's actually a reason for holding out until the end.

Of course, sometimes negotiations go along in between to indicate that there is a claim coming and there may be some opportunity to resolve it without proceedings being issued. When you are prosecuting and there is a time limit to prosecute, you always run the risk, if you are sick in the last month or you forget to do it, of going over the time limit and then you miss out. That can happen now in areas where there is a capacity to lodge a complaint to 'prosecute' for a guilty employer under the occupational health and safety legislation as it was.

It is very important that the inspectors and officers who are responsible in this area know what they are doing. As I say, this responsibility has been around for a long time and I have no reason to doubt that they are not pretty experienced, but they know the risks and they have to get it right. That has been raised with us on a number of occasions, that they run a bit close to the wind and they do it for this reason: they do it because in the absence of the complaint being laid, upon which the employer is then alert to the fact that they are under scrutiny, then by that process and, potentially, conviction, the officers can continue to ask questions, interview other employees and have a bit freer rein to gather more evidence with respect to pursuing a more successful prosecution.

I do not know whether that is right or not. It sounds logical. You would not alert the potential accused too early until you have had a chance to interview other co-workers, take statements and so on. It sounds pretty logical to do that, as to why they do it, but they have a responsibility to make sure they do it properly and not simply have this practice of waiting until the last minute and then hoping that they can acquire more evidence in a more sympathetic environment to that evidence harvesting and gathering.

When one looks at the annual reports that we have from the Premier's annual report, we get a list of all of the more serious prosecutions that are laid each year. The annual report from the Premier's department gives a summary of deaths that occur on worksites during the year. I was sad to read in last year's Premier's annual report that under his department's watch there were 13 workplace deaths. It is a bit of a sobering read. I do not commend it to members to read each year. I do as the shadow attorney and it often makes me feel quite sad to see a number of repeat circumstances, like farm accidents, sadly, people who die when their tractors tip over or they get caught in large harvesting equipment. All too common are accidents in that realm. Fishing boat accidents, some in manufacturing, obviously, and building sites feature in this list every year. I think we all have a responsibility to do the best we can to ensure that harm and/or death is minimised in these circumstances. People are entitled to go to work and feel that they are going to be in a safe place where they will do their work, be paid their fair payment and go home safely, and that is why we have these laws.

I read this with some sadness each year. There are usually about 10 a year. There were 13 last year, which is a bit worrying. This current financial year will not be reported on by the Premier and his chief executive. I cannot remember who the new chief executive is, but somebody else has just been appointed. In any event, the responsibility has now been transferred across to the Attorney-General's portfolio. I think it is in the Attorney-General and Justice portfolio but, in any event, that responsibility has now been transferred over to him, so his department and he as the minister covering that will be reporting on this year's situation.

I say to the government: for us, you have failed the test to garner our support. Certainly, there are some sympathetic heartstrings pulled in a case like this, but to sweep away the rules just to cover your incompetence is something we are not prepared to do on this occasion. We feel that, for the reasons I have outlined, some further information should certainly be presented to this parliament on the matters that I have raised.

Mr KNOLL (Schubert) (16:31): I too rise today to speak on this bill that is before us. It seems that I am going to mirror some of the comments that I made the other day in regard to the Attorney's desire to bring rather heavy-handed legislation to this place that flies against centuries worth of legal tradition. The other day, we were talking about getting rid of juries, which flies in the face of everything we know about juries being used to reduce the rate of wrongful conviction. Today, the government is looking to try to create a law that is retrospective and goes against some other longstanding legal principles.

I rise today to speak on this bill as a member of the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation. As this work health and safety amendment bill comes under our purview, I felt it only appropriate to speak up on this. I have outlined previously in this place some of the flaws that I have seen between WorkCover more generally and the tribunal process, but what we are dealing with here today, in a sense, is trying to solve a problem by creating another problem.

It is interesting that the government has come forward and said, 'We have these two cases. We made a technical error.' I would love to see what that really means. 'We have made a technical error; therefore, we have to bring a piece of legislation to parliament to fix the error, and hopefully we can make it all sort of go away.'

All South Australians have to abide by the law. All South Australians are subject to the law and are not above the law. Perhaps we can debate parliamentary privilege and where that sits, but that is a different issue. There is only one group of people who can turn around and say, 'I stuffed up; therefore, I am going to change the law to fix the fact that I stuffed up.'

If I look at any other part of society, whether it be police bringing criminal prosecutions or people in civil matters, there is no other group within society that is able to say, 'The law has not suited me in this purpose; therefore, I am going to change the law.' We all have to abide by it, but certainly the Attorney, with his iron fist, feels very much that this is within his purview. He said in this place that he does not feel this legislation is optimal and that he regrets the need to have this legislation, but I find it very difficult to accept a piece of legislation that fixes a government's mistake when lay people who suffer the same issues are not afforded the same opportunity.

I am reminded, Deputy Speaker, of a Peppa Pig episode that I was watching with my daughter the other night—and I guarantee you that this is relevant. On Peppa Pig, Grandpa Pig goes to the playground with all the children, and all the children are on the slide, and it is quite a long line. There are two smaller children amongst this. One of them is—

The DEPUTY SPEAKER: Are these children or piglets?

Mr KNOLL:Peppa Pig, it's a cartoon.

The DEPUTY SPEAKER: But they're piglets, aren't they?

Mr KNOLL: No. There is the pig family, but then there's the rabbit family, there's the dog family, the wolf family.

The DEPUTY SPEAKER: So, there are human children on the slide with the animals.

Mr KNOLL: The animated animals are the ones that slide down the slide. Anyway, they are all going through—Peppa is going through, Suzy Sheep is going through, Rebecca Rabbit goes through, but poor Peppa's young brother George and his other younger friend, whose name escapes me right now, are at the back of the line and, because they are really small, they are a bit impatient and do not feel like waiting for a long time. Minister, one day you will know these episodes off by heart.

Grandpa Pig is magnanimous and goes 'Hang on! I can fix this. We're going to change the rules. We're going to change the rules so that little George and his mate, because they're little, they are able to go on the slide without having to wait in line.' Then he sees that George and his mate are going up and down the slide and all the other kids do not get a turn. They are all waiting there and say, 'Hang on! When is our turn, Grandpa Pig?' Grandpa Pig goes, 'It's okay, you can go play on some other piece of equipment.' So, they go over and Pedro the Pony is on the swing. They say, 'Pedro, you have to get off now, it's our turn,' and Pedro says, 'No, I only just got on.' So, Grandpa Pig comes over to officiate and says, 'No, Pedro Pig has a little bit longer.'

The scene goes on and it ends with the merry-go-round. On the merry-go-round, which Grandpa Pig has to push, there are too many children to go on the merry-go-round, so they have to decide who gets on and who does not get on. In the end, what happens is that Pedro Pony goes, 'Well, I wear glasses therefore I have to be on the merry-go-round.' Then Emily the Elephant goes, 'Well, I can make a noise like this'—and I will not make a noise, but she throws her trunk up, and so she jumps on it. In the end, the kids make up all their own rules to justify their own position.

In the end, Mummy Pig and Daddy Pig come along and say, 'Grandpa Pig, what have you done?', and he says, 'I was just trying to do the right thing.' He says, 'Well, when you create one rule for one and another rule for the others, this is what happens.' This is why we—

The DEPUTY SPEAKER: It sounds like elder abuse to me; they're picking on grandfather pig.

Mr KNOLL: Well, Grandpa Pig is big enough and ugly enough to look after himself. The moral of the whole story is that, when you create a rule, it has to be consistent, it has to be applicable to everybody, otherwise we have chaos.

Mr Gardner: Some pigs are more equal than others.

Mr KNOLL: That's right, some pigs are more equal than others. It is interesting that I just got an email from an upper house member of staff who says that I have just made her day. And how do I know all the names off by heart? Well, I have watched every single episode at least half a dozen times! So, Deputy Speaker, there is the moral of the story. This is the Grandpa Pig defence, as we will call it from here on—to add to Chewbacca and Rumsfeld and Colonel Klink and the others.

I have difficulty with trying to impose a piece of legislation to fix a very specific problem—I really struggle with that—but I also struggle with a minister who believes that this is an appropriate use of parliament's time. We are not here to be anything more than servants of the people. It is incumbent on us to deal with things in the macro, to deal with things in the abstract.

It is interesting because normally when we create a piece of legislation that is subject to a certain discrete set of people, we call it a hybrid bill, but we have got around this by saying, 'It applies to everybody, but there are only two cases. We tried to wriggle around that one.' I struggle to be comfortable with a minister who wants to interfere with proper process or, in this case, try to fix proper process.

The cases we are talking about were known to government. This is not the case of new evidence or new cases coming to light after their statute of limitation has passed. This is just the fact that the government stuffed up, nothing more, nothing less.

When I did my year 12 economics exam and stuffed up my interest rates essay—and stuffing up that essay cost me my merit in economics, to the dismay of my economics teacher—if only I had had the option to go back and say, 'No, I get to fix it. I get to do it again.' Hang on, that is not the way these things work. There is a process we have to follow and we all have to abide by. You could ask, 'Why do we have to have this pesky little thing called statute of limitations? Why do we need to have it at all? If it's good enough for the goose, it's good enough for the gander. Let's just get rid of the whole thing.' It is put quite succinctly in Business SA's contribution, where they say:

Statutes of limitation exist to protect defendants (who are innocent of any offence until proven guilty)—

a wonderful thing we have in our society that I do believe this government has trashed on any number of occasions—

from the threat of protracted proceedings and to ensure that proceedings are pursued diligently while evidence and witness accounts are still available and relatively fresh.

That seems extremely worthwhile. That seems like an extremely cogent statement and something I am very much inclined to support. I understand that there is still a little way to go with this bill, but I do note the relatively strong opposition from many interest groups to it, from Business SA to the NECA, MBA, AHA, AIG, HIA—any number of groups. The MTA thought there were some reasonably significant concerns.

You will notice that nobody is discussing the merits or otherwise of the case. That is not for us to decide. In fact, it is not really for us to know about in any great detail because we have to make decisions in the abstract. This is a principle I believe is worth fighting for. I believe this is a principle worth upholding. I would love the Attorney to come into this place to convince me and convince others that this is an isolated incident. As a conservative, the 'slippery slope' argument is in my grab bag and something I turn to on many occasions, and this is definitely one of those occasions.

If we say, 'Well, we can fix this little mistake by doing this,' what happens if something else comes up down the track? What about other issues that may come up down the track? We say, 'Yes, we didn't follow process and we didn't really do the right thing, but that's okay because we've got parliament and we can fix things, and we can make it retrospective.' Can I tell you that retrospective legislation is rarely good legislation.

I think the wise words and the wise counsel Daddy Pig and Mummy Pig gave to Grandpa Pig should be heeded in this place because these are fundamental principles we teach to our children: those of equity and fairness and consistency. I do believe that is something that we should uphold in this place.

Mr PEDERICK (Hammond) (16:42): I rise to speak to the Work Health and Safety (Prosecutions Under Repeal Act) Amendment Bill 2015. I do so after the exemplary words spoken by the member for Schubert. I think he gave a very apt description of how you cannot keep making it equal for individuals, whatever the situation is, because then you will have chaos. I must admit I have never watched Peppa Pig, but I am inspired.

Mr Knoll: Your children are a bit old.

Mr PEDERICK: My children are a bit older.

The DEPUTY SPEAKER: It sounds like they should be watching it anyway.

Mr PEDERICK: Yes, exactly. The minister informed the house last year that this bill would be introduced to extend the time to commence proceedings for an offence under the now replaced Occupational Health, Safety and Welfare Act 1986. The minister was working on the fact that the bill would allow two prosecutions under the recent act to proceed. In regard to this legislation we are discussing now, the sad thing is that one of these workplace incidents resulted in a fatality and the other resulted in serious head injuries to the worker.

We have already expressed our position on this side of the house that we will not be supporting this legislation, but in saying that I certainly have a great deal of sympathy for the families and the people involved with these two cases. As has been so well put today by the deputy leader and the member for Schubert, we just cannot keep changing laws to suit ourselves because someone has made a mistake; someone has made a technical error, someone in government has made an error and missed out utilising what powers they would have had under the previous act that has been repealed. As I said, certainly my sympathies go to the families in both these cases, but as has been expressed by other members on this side of the house, we just cannot go changing legislation to suit ourselves or to make up for an error, no matter how it was made.

The minister did indicate that there was a technical error in the filing of the complaints, which means that prosecutions will now be unable to proceed because the statutory time limit for prosecutions has expired. Technical errors get down to the fine nub of the law. We have seen it in various cases, and I include a case against a large landholder in the South-East from the RSPCA. Someone got something wrong in the filing of the reports and so the whole case was pulled.

You just cannot go back and change the legislation. There was no call to change legislation then because someone—I think it was more than a technical error, but it is history now—made a very grave error in some of the evidence that was put up for that supposed judgement on the pastoralists involved, and it caused a lot of grief and a lot of pain for that person, Mr Tom Brinkworth, and his family.

Laws are not something to be trivialised, and it is why we are in this place, to make laws, amend laws and occasionally repeal laws. Some would say we should repeal a lot more, to take a lot of the red tape out of life. We have been told by SafeWork SA that there are no other proceedings under the Work Health and Safety Act impacted by the technical error. Certainly, a range of stakeholders have indicated that they do not like the idea of this legislation. There has been a diversity of views, but most of them have been against passing this bill, because essentially most, in fact nearly all, stakeholders have expressed concern at the retrospective nature of the bill.

I think that is the biggest issue here. We just cannot keep playing with legislation as if it is the parliament's plaything, because someone has made a mistake. It is up to the government, it is up to the bureaucrats, to make sure that items are done in due course. I can assure you that if anyone has a problem in their workplace, SafeWork SA is on the case. That is as it should be; you should be able to expect to go to work, whether you are working for someone or whether you are self employed like many of my friends are as farmers, and you should be able to expect to go home so that you can see your family at the end of the day and start again the next day.

I certainly know from talking to some of my friends who have had workplace accidents. One friend several years ago was very lucky to survive a hay bale coming over the front of a front-end loader. If it had not been for a roll bar and some other things on the tractor, it probably would have killed him; it damn near did. It was certainly their right to be there and it was the right thing to do, and SafeWork SA was down there like a shot to investigate. I commend them for that because, unless we have safe workplaces, perhaps there will be times when sadly people do not get home to see their families and kiss their kids goodnight and that kind of thing.

It makes me wonder when you have an efficient group like SafeWork SA and we see some fundamental errors being made in regard to the previous legislation. As I indicated before, I have my sympathies with the two families involved in these two cases and many people who have put their case to us about this bill. They acknowledge the potentially emotional prospect of grieving families criticising the fact that allegedly—and I repeat, allegedly—'guilty' companies and individuals could escape prosecution because of what the minister describes as a technicality.

The simple thing is in all these things, especially in workplace accidents, is that you have to get it right. Business SA is strongly opposed to the bill, and their argument is supported by a number of the stakeholders. I quote from the Business SA commentary:

Statutes of limitation exist to protect defendants (who are innocent of any offence until proven guilty) from the threat of protracted proceedings and to ensure that proceedings are pursued diligently while evidence and witness accounts are still available and relatively fresh.

The principle of protecting a defendant's rights until they are proven guilty is a fundamental pillar of our legal system. The Government's proposed amending Bill is therefore implying that the Parliament is being asked to reduce the defendant's rights in order to fix a blatant administrative error by the prosecution.

It also implies that the defendants' rights are considered to be inferior to the need and the power of the Regulator to prosecute.

Retrospective legislation is rarely good policy. It should only be considered in relation to criminal matters in the most extreme circumstances as it is well recognised in jurisprudence to be a fundamental human right which should not be abrogated by retrospective legislation in order to achieve a criminal conviction.

As stated early, we empathise with the family that want justice to be done by way of a proper legal process. Frankly, however, the only one that arguably has denied the family justice is the Government because of what appears to be the inexplicable error of the Regulator and/or the Crown Solicitor. Accordingly, it is those agencies that should be held to be accountable.

In addition, there are secondary issues. In our view the proposed Bill does not limit potential prosecutions to just the two cases that have been cited. Also if the amendment Bill was passed it would set an unacceptable precedent where the Government, or indeed a future Government, could argue that as this Bill has been passed to fix a blatant administrative error then any other legislation should also be amended on similar grounds. That's a slippery slope the Opposition must not support.

For all of the reasons detailed above we strongly oppose the Government's amendment Bill.

In the light of legal judgements that are made all the time, there is always talk about precedents. A precedent is the thing we really need to look at here. I am not a lawyer but I have seen enough legal cases and I am sure that at least some of the TV programs are close to the truth. A precedent is something that judges look at in a very defined manner because once a precedent has been set, it makes it far simpler for a judge looking at a similar case, whatever the case may be, to say, 'We have the precedent of such-and-such a case. This is a very similar proceeding,' and they judge accordingly imposing any penalties or fines as they see fit.

I think it would be extremely dangerous to set a precedent in this house, otherwise we would be in here all the time. If someone had thought they were severely wronged, we would have to change the law just to suit them, and I just do not think that would be right. In regard to groups and some of the stakeholder views in regard to the bill—and we have already indicated Business SA, NECA, MBA, AHA, AIG, HIA, lawyers for defendants who are opposed to the bill—the MTA has significant concerns with the bill, and SAWIA, SISA and AMIC have significant concerns with the bill. It is noted that at the time of this briefing no responses have been received from VOID and SA Unions, but it is thought that they would probably generally support the bill.

When I compare the summary of events by Business SA and how it thinks this bill, if turned into an act within law, might bring other proceedings apart from the two proceedings that have been cited in the discussion, I note that the Attorney states he believes he has received advice from SafeWork SA that there are no other proceedings under the OHS & W act that have been impacted by the technical error. Well, there are two sides of the argument already from two groups involved in this; the Attorney and his department and Business SA are already in a conflicted position over whether this will impact on other cases. I am not talking about whether there was grievous harm done or damage done, or whether someone should have been held to account; for the simple reason that they were not held to account when the law was in place is why I believe this bill should not be passed.

We pay lots of money to very good people in departments—lawyers, bureaucrats, etc.—to make sure that these things are right, and it is up to the government to make sure that these things are right as well. It will be interesting to watch the passage of this bill once it goes through this place and see how the debate goes in the other place. I certainly agree with members on the Liberal side of the house not to support the bill on principle. Again, I do extend my sympathies to the families involved, but we must remember that we have laws in place to work for the whole community. We must make sure that the people who look over these laws, and, hopefully, make them work in their proper manner, do so in a diligent way and that, basically, we do not have a major stuff up like we have here.

Sitting extended beyond 17:00 on motion of Hon. S.C. Mullighan.

Mr TARZIA (Hartley) (16:58): I also have significant issues and concerns with this bill and, whilst I can count and know that the bill is likely to move past this chamber, I have no doubt whatsoever that the bill will be subject to intense scrutiny in the other place.

The Hon. S.C. Mullighan interjecting:

Mr TARZIA: I know that, but we need to give them more work. I agree, member for Lee; we need to give them more work because they have knocked off early today.

An honourable member: Have they finished already?

Mr TARZIA: Apparently so. It is interesting to note that Australia is party to seven core international human rights treaties and, Deputy Speaker, you know I have a fond interest in human rights treaties. The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant on Civil and Political Rights (ICCPR), and it is interesting to note that article 15 actually stipulates that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

I understand this is not potentially national or international law, but it is interesting to note that this is the case in that realm. It goes on:

Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

It is an interesting argument. Not only that, but we are also subject to Article 7 of the United Nations' declaration of human rights which states that:

All are equal before the law and are entitled without any discrimination to equal protection of the law.

This is a fundamental pillar of our legal system. These things are in place to protect defendants, as some of my other colleagues have alluded to. Obviously the bill will pass this house, but I really do ask members of the chamber to consider these arguments as I go through what arguments have been put forward by industry on this proposal.

We know that on 3 December the minister informed this place that he would introduce the bill which does insert a new transitional provision into the WHS Act to allow the minister to extend the time to start proceedings for an offence under the now replaced Occupational Health, Safety and Welfare Act 1986. I, too, empathise with the two families that have been involved in two prosecutions under the recent act. I do empathise with the families that have been affected by those prosecutions. I understand that one workplace incident resulted in a fatality and the other resulted in serious head injuries to the worker. I do empathise with the victims of those incidents wholeheartedly.

The minister then tells us that there has been a technical error in the filing of the complaints which signifies potentially that prosecutions will now be unable to proceed because the statutory time limit for the prosecution has expired. He goes on to say that SafeWork SA has advised that there are no other proceedings under the OHSW Act impacted by the technical error.

There are a number of views, quite a diverse range of views, about whether this legislation should be supported. It is important to note here that we do, with respect to the victims, have to put aside the emotional prospect of grieving families who are criticising the fact that alleged guilty companies or individuals may escape prosecution and focus on what we have been put here to do.

There is widespread criticism of the incompetence and potential negligence of the government and SafeWork SA. There is no doubt about that and I think there should be accountability for that. There is no doubt about that.

I would like to draw on some of the arguments of industry groups with regard to this bill—firstly, the MTA. The MTA note that they do obviously have many issues with this bill, and we understand that they suggest that:

…the main reason for the existence of time limits is to ensure fairness for the defendant at trial in terms of witness availability, recollection and the like. The greater the passage of time the more likely the defendant is to be disadvantaged.

That is certainly the case and something that we need to be very wary of. While they do 'not support or oppose the bill' they certainly seek that we should have 'regard to whether or not the defendant has suffered prejudice…'. This is the question: has the defendant suffered prejudice as a result of the passage of time…' that is 'not based on the likelihood of success of prosecution as is reflected in the present amendment'? It is a very valid concern that the MTA raise.

We move on to the Australian Meat Industry Council who have also raised a number of issues. They are concerned about the potential precedent that is created if you amend legislation to cover up what is an administrative error, as I have spoken about. That should not, they say, 'be a reason or an excuse for the need to change a law.' As they say, 'It is a dangerous move' and it does make a mockery of our system, and I would have to completely agree with the Australian Meat Industry Council on that.

They also draw on the principle of a statute of limitation concept and that that should be maintained without extremely exceptional circumstances. They also say, and I would agree with this, that there should be a thorough investigation of the department. We need to make these people accountable. We need to make them accountable for their error and, if they have been negligent, they need to be dealt with as per the law. It is not enough to simply try to amend the law every time one of these issues arises. It should be that the law is equal for all and there should not be some rules for certain people and other rules for others. It is just not good enough.

The Hon. T.R. Kenyon interjecting:

Mr TARZIA: Sorry? Where was your law degree from? The South Australian wine industry—

The Hon. T.R. Kenyon: Sorry, Mr QC.

Mr TARZIA: The South Australian wine industry—

The Hon. T.R. Kenyon: I wasn't even talking to you. If I'm going to interject on you, you'll know about it.

Mr TARZIA: I'm talking. Have some respect, I'm talking.

The Hon. T.R. Kenyon: I will keep going. Stop responding to interjections.

The DEPUTY SPEAKER: Order! The member for Newland was warned for the first time during question time, so I am going to warn him again. He is on two warnings now.

Mr TARZIA: The South Australian wine industry, as a general principle, does not support the introduction of legislation to address the shortcomings of the bureaucracy or to address administrative error. Whilst they may not oppose the bill, they would like to see some guarantees from the government. I will pass these thoughts on. They will be seeking guarantees from the government: first, that the minister agrees to a thorough investigation of the regulator to determine how this situation occurred and to ensure that it does not occur in the future. That is a very sensible statement by the South Australian wine industry. Secondly, should the bill pass, that there is an assurance from the minister that the amended legislation only apply to the two related matters. That is food for thought. I do not necessarily agree with the second part of the statement, but there you have it from the South Australian wine industry.

Business SA again talks about retrospectivity and how there are dangers when you try to make a law that only applies to certain individuals. They say it is rarely good policy and 'should only be considered in relation to criminal matters in the most extreme circumstances'. I would certainly agree with that. Business SA goes on to say:

…the only one that arguably has denied the family justice is the government because of what appears to be the inexplicable error of the Regulator and/or the Crown Solicitor. Accordingly, it is those agencies that should be held to be accountable.

What happened to accountability, Deputy Speaker? I would agree with Business SA. If someone has made a mistake—and mistakes do happen—they need to be accountable. It is extremely essential that we maintain this standard and this pillar of our legal system that a defendant's rights are protected until they are proven guilty. It is a fundamental pillar of our legal system, and that pillar needs to be maintained.

Business SA also raises a valid argument about an unacceptable precedent that would be created in the future if we go on making certain laws that only apply to certain people and not everybody as a whole. Then we have the Self Insurers of South Australia, who also raise many valid points in relation to this. They say:

The notion of amending any legislation to cover up an egregious and avoidable administrative error is in itself abhorrent. It smacks of a one-sided attitude to the principle that ignorance of the law is no excuse. They would readily apply it to a SISA member if its error had sabotaged its defence in a prosecution. But if the Regulator makes an error, we change the law to cover it up. It is grossly unfair and arguably a misuse of power. It is also a slippery slope—will the government feel empowered to do similar things in response to other bureaucratic errors under this or other acts?

That is from the Self Insurers of South Australia. That is quite a valid concern and they also talk about the statute of limitation and how that exists to protect defendants, as I have spoken about earlier, from the drawn-out threat of proceedings but also to ensure that proceedings are pursued with diligence. If you do not have these sorts of stops and measures in place you open yourself up to all kinds of things. You open yourself up to more vexatious claims, which have much more of a burden on the system. The system is crowded without all these other claims that we have, so that is very valid commentary from the SISA.

I understand we are waiting on certain groups to get back to us, and some submissions that we have asked for have not been received. I would assume since they have not responded that they must agree with us. It is my view that on balance the Liberal Party should oppose the bill in this chamber and at the very least support certain amendments that tighten the bill up. However, as I alluded to earlier on, I can count, and I accept that it is highly unlikely that the bill will be stopped here and that it will progress to the other place. I look forward to that day when it goes to the other place where it will be the subject of high accountability and rigid debate in that other place.

The Hon. T.R. Kenyon: I don't know why. Those hopes will be dashed one day.

Mr TARZIA: No, they won't be. I have hope.

The DEPUTY SPEAKER: Order! It is very late in the day.

Mr TARZIA: I have hope and I have faith.

The DEPUTY SPEAKER: I am looking at everybody and asking them to cooperate.

Mr TARZIA: I have hope and faith, member for Newland. There are two other minor things in relation to part 2, new clause 25A(1), which uses the phrase 'interests of justice to do so'. I think 'interests of justice to do so' is far too broad. I would have looked more favourably on it if it were more confined. I have also pointed out in subclause (2)(a) the phrase:

…an extension under that subclause may be authorised even though the time limit for commencing proceedings under the repealed Act has passed…

I have mentioned the fact that that extension needs to be more confined. It could be dangerous to give the minister of the day that discretion. We need to weigh up the interests of both parties in the proceedings—the prosecution and the defendant. I think this sort of thing is far too skewed against the defendant. I empathise with the victims of this case; however, I cannot emphasise it more. What we are trying to protect is a fundamental pillar of a legal system and it should only be in extremely rare circumstances and exceptions that we depart from that legal precedent.

If we are going to start doing it here, what other acts are we going to start doing it to, what other types of prosecutions are we going to open it to and what kind of accountability is there? Are we going to say to government departments, 'It's okay if you stuff things up'? That would be slack, it would not be in the best interest of representative government and it would not be in the interest of responsible government, because we are here to be just that and to provide that to the people who elect us. I personally will not support the bill. However, I say that it will be subject to rigid debate in the other place, and I will conclude my remarks there.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:13): If I can pick up on some of the themes from the member for Hartley, I note there has been quite a rich debate here. I think the member for Hartley underestimates some of the quality work that can be done in this chamber and I think he is too self-deprecating. For example, I note the dissertation on that great television program Peppa Pig that we were treated to where a rich theme of analogy and reference was had regard to. Listening to the member for Hartley, I am immediately reminded, as I am sure others were, of a gentleman by the name of Friedrich Gustav Emil Martin Niemöller.

The Hon. T.R. Kenyon: He immediately came to my mind as well.

The Hon. J.R. RAU: He immediately came to mind. I will not try to repeat what he said in the original because that would involve me speaking a foreign language, but he did say:

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist…

…—and there was no one left to speak for me

I think that is a reasonable summary of the member for Hartley's proposition.

Mr Tarzia: I'm Johnnie Cochran to your Chewbacca.

The DEPUTY SPEAKER: The member for Hartley has already had two warnings today.

The Hon. J.R. RAU: For the benefit of the member for Schubert, who was resting a little moment ago, I just have to repeat that the member for Hartley was hiding this chamber's light under a bushel somewhat in his remarks when he compared us with the other place. I was pointing out that in a chamber such as this, where we can have a very arcane conversation about these very fine points of law, using the analogy of Peppa Pig demonstrates the incredible versatility—

Mr Knoll interjecting:

The DEPUTY SPEAKER: The member of Schubert is not in his place and he already has one warning.

The Hon. J.R. RAU: It is quite a virtuoso performance. The other thing I would not mind mentioning—and I am happy to put this on the record now; I have done it before, I think, but I will do it again—is that I am not happy that I have been put in this position. I am not happy that two men, one of whom was killed and another of whom was damn near killed, were badly injured in circumstances where it looks on the face of it that their employer was operating in a very unsafe way. I am very annoyed that employers, who are not looking after their workers as they should, should not have to have a day in court where they are actually tested out and, if they are found to have failed the industrial standards that are appropriate, they are given a penalty.

I am very concerned about that. That is why I brought this forward. I just do not think it is okay that these two men—one of whom was killed and one who was not—should not be in a position where the legitimate grievance their loved ones and family might have about might happen to them is not explored on behalf of their injured or killed relatives. I emphasise: that is all I am interested in doing. I am not interested in opening up a gateway here that a whole bunch of other people can jump through.

This is specifically to deal with an error about which I was very frank with the parliament. I actually came into this place as soon as I heard about it and made a ministerial statement explaining that this thing had happened and that I was going to have to try to do something about it. So, I am not running away from it. I am not happy about it. I think it is one of those terrible things that should not have happened, but it did. I am not trying to make excuses for myself or anyone else. I am trying to give these two families their day in court; that is all. I acknowledge that this is not an ideal way to be doing things but, unfortunately, it is the only option I have left.

I finish by saying that the member for Hartley again talked about the 'rich debate', I think, that occurs in the other place. I will just leave that hanging there for a moment. I would invite the member for Hartley to spend a bit of time in the other place, and I will inquire later as to whether that particular descriptor continues to fall so easily from his lips.

Mr GARDNER: Point of order: how can it be in the orders for the minister to be reflecting so poorly on his cabinet colleagues?

The DEPUTY SPEAKER: He should not be, and he is just about to finish, I know.

The Hon. J.R. RAU: Yes, I am; you are quite right. I also will just point out, for the member for Hartley's benefit, I think the euphemism that is used in that place for what they do is 'improvement'—richer or otherwise is open to debate. Anyway, I thank everybody for their contributions, and I wish a speedy progress of this—

The DEPUTY SPEAKER: Through the further stages of the bill.

The Hon. J.R. RAU: Yes.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: During the course of the debate in this matter, Attorney, I raised the question: have there been any ex gratia payments either offered to, or accepted by, the widow or other family member of the first victim and the injured worker in the second case? If so, what are the details of those?

The Hon. J.R. RAU: I do not know of any such payments. I would assume that, in the ordinary course of events, under the legislation that was operative at the time and, for a short time into the future, will be operative (the Workers Rehabilitation and Compensation Act), in the one case, the dependents would be entitled to whatever death benefits are attached to that person and in the case of the other one, obviously, there would be entitlements pursuant to that legislation.

I am certainly not aware of there being any ex gratia payments or any other thing, because there has been no determination of any criminal matters, so there is no criminal injuries compensation issue that directly arises as yet. As I said, I have no knowledge of there having been an ex gratia payment in respect of these matters.

Ms CHAPMAN: Notwithstanding that, Attorney, in respect of criminal injuries compensation, there is an entitlement under the Victims of Crime Fund for access to information on complaints laid under this act?

The Hon. J.R. RAU: I do not know. I am assuming, and I could be wrong, that if a person is a convicted of a criminal offence—which a breach of this is, I believe—then they would be entitled, but I do not know. If there is a fine at the end, there would be a victim of crime. Because we have never got to that point, I do not know.

Ms CHAPMAN: Can the Attorney make some inquiries during the passage of this bill to the other place on a number of things. One is whether either of the parties or their relatives have received any entitlement by way of common law claim, compensation under the Fair Work Act or workers compensation act (whichever one applied to them two or three years ago when this occurred) or whether they had been offered, or asked if they could have, any ex gratia payment.

The ex gratia payment was a matter I raised during the course of debate because it seemed that, in your words, the only option you had left was to come to the parliament to try to give these people their day in court, if I can paraphrase. It is similar to what I presented in my contribution, as to in fact what other options you do have and, if they cannot see the justice of a potential prosecution and conviction under that process, whether in fact they had sought any other compensation or ex gratia payment.

It may be that they have not even done any of that. It may be that the government says, 'Well, look, if we fail at this, we'd consider it.' I think we need to know, in those circumstances, whether that is a consideration that you would entertain in the event that they were not able either to have access to compensation or to see their day in court, bearing in mind that, for the reasons I point out, as much as you are sort of falling on your own sword, Attorney, in relation to taking responsibility for this, at the end of the day, it has been a stuff-up and these people are not seeing their day in court at the moment as a result of that.

We are not on balance prepared to support this option. However, we think it is open to the government to consider whether there is some other way of recognising the failure on the part of one or more government employees. I would like some answers to those questions between houses.

The Hon. J.R. RAU: I am happy to try and get those answers. I suspect that we are talking about WorkCover or nothing and, of course, common law would not have any application unless they were in labour hire relationships and so on. I do not know, but I will try and answer that question.

I will make the point, though—and I think this is worth putting on the record—some form of civil compensation to the relatives of the dead man or the severely injured man himself is one thing, but the state's responsibility, in the interests of all of us, to be prosecuting people who have dangerous workplaces supersedes and sits in a different place to the understandable sense of grievance an individual might have which may well sound in damages.

There are two quite separate things going on here. In the general sense, I do understand what the member for Bragg is saying about this in that a person who suffers an injury or a loss of some sort might, to some degree, potentially be compensated by a payment—albeit in this case not a payment made by the tortfeasor but a payment made by a completely innocent third party, namely, the state. However, I return to the point that the state, our community, does have a bigger public interest in seeing that people are prosecuted who are flouting—if indeed these people were—very important laws regarding the safety of workplaces. Prosecution, of course, is a function of the state; it is not an inter partes personal matter.

Ms CHAPMAN: And that is really why we are asking it because we do not doubt for one moment that the issue in relation to the prosecution process is of itself an instrument of discipline to try to modify mainly employers' behaviour—sometimes there are other parties but largely their behaviour—to make sure that they do provide safe workplaces. We accept that.

However, if the public miss out on the opportunity to do that as a result of there being a process where there has been some neglect or incompetence by certain parties in the state—if we can just leave it as general as that—then that may be something that the public misses out on in this case. It may be that there will be other means for the two parties that were responsible for providing safe workplaces, in the merchandiser in the country in one case and the building site in the other of these two cases, then in any event, if that information is forthcoming that would be good.

The other matter I raised was the question of why the SafeWork SA council had not been consulted on this matter and if they would be and, secondly, if they have not been, will you do so to ensure that in the other place we have some understanding? I just want to point out here that although there is a role of this council to advise you, minister, and to give you advice on policy and legislative matters (as I have put into the Hansard), I note that just recently your novel approach was at least publicly reported on dealing with SafeWork SA officers having power to insist on questions being answered in the workplace accident scenario—good luck with that.

However, in any event, if you want to remove the right to silence for the reasons you say is of some benefit in prosecuting other people—that is, the boss—then if it is good enough for the SafeWork SA council to be giving advice on those matters, which apparently they are considering at the moment, then it seems to me that it is good enough that they have some advice on this piece of legislation, and I would just like to know what they say.

The Hon. J.R. RAU: I can provide some information to the honourable member about that. I am advised that this matter was discussed at the advisory council meeting on 3 February this year. I am also advised that a copy of the bill was provided to the advisory council on 11 February, and I am advised that the members of the council expressed concerns over the retrospective nature of the bill, which I entirely understand, and were concerned about the two year limit. So, yes, they have been consulted and, yes, like most people, they find the idea of this sort of intervention to be a little bit out of the ordinary and have expressed concern about it.

Like the member for Bragg, I have a professional comprehension of how unorthodox this is, and I am not defending this as being the sort of thing that one should do every day. I am extremely disappointed that I have to come into this place and ask the parliament to help me resolve a matter which in reality should never have been a problem.

All of those people, whether it is the Law Society, SISA, or whoever it is, have expressed their dissatisfaction with the matter of principle. The interesting thing is I have spoken, for example, to some people from SISA who said, 'Look, we don't actually have an objection to what you're doing inasmuch as you are wanting to be able to have people, who appear to have allowed unacceptable, dangerous things to occur at their workplace, be prosecuted. We do not have a problem with that, but we do have a problem with the principle being breached of the statute of limitations being an end to it.' I understand where they are coming from.

The only thing that I can assure the members of the house and those people who have written in, some of whom I have personally spoken to, is that this is intended to be in respect of two people, and that's it. And I have sought advice about this on a number of occasions, because I have said to those who advise me, 'Look, this cannot be something which can be used as some sort of opportunity for a bunch of other people to jump through. I need your assurance that this will capture the two people I'm concerned about and that's it.' I have sought that advice and I have been told that is what it does.

Ms CHAPMAN: There are a number of issues we have raised about the general operation of SafeWork SA. Did anyone in the families, or the injured worker in one case, ask for you to do this?

The Hon. J.R. RAU: No, they did not specifically ask me. What happened was I found out about this at a point in time—I cannot remember what it was—and it was virtually that day or the next day—

Ms Chapman interjecting:

The Hon. J.R. RAU: I only found out about it at a certain point in time. I cannot account for what happened before that. But as soon as I found out about it, the very next day that I was in here I came in and made a ministerial statement about it, because I was so horrified about what had happened. I then made attempts to contact the families concerned. In the case of the deceased person, I was able, I think, to speak to one of his daughters, or two of them. I apologised to them on behalf of the government for the failure of this thing to happen and I indicated to them that I would do my best to see if I could overcome this problem.

I had a lengthy conversation with the gentleman who was badly injured, who, I must say, struck me as an absolutely remarkable fellow, given the nature of the injuries he has suffered. He has made something of this terrible misfortune. He goes around the place using his own personal example as an advocate for work safety, which I think is really admirable. To have suffered what he has and then to say, 'I'm going to make something positive out of this terrible accident,' I think really brings great credit on him. Neither of those groups of people asked me to do this. I offered to do my best for them because I was so unhappy and so disappointed on behalf of the state that we had, in effect, let them down.

Ms CHAPMAN: I appreciate the Attorney acting in that way, and I think it is entirely appropriate that, when people are really the victims of someone else's inaction or inadequate provision, there is someone in your position to contact these people and express your sympathies for the fact that they have been robbed of a chance to have their day in court: I understand all that. What concerns me then is, apart from thinking, 'What can I do to help these people?' (and I think there are a number of other options, but nevertheless you have chosen to try this option), had any of the people in SafeWork SA expressed a view to you that you should try to have this legislative remedy, or again is this just your way of thinking that it really is the only way you can help them?

The Hon. J.R. RAU: I can tell you how it happened: I was having a meeting, I was told that there was something that they needed to speak to me about, which they were not very pleased to tell me about. They told me about it, and they were right, I was not pleased. I said that I needed advice right then on what wriggle room we had, whether we could apply for an extension of time, was there any application I could take in the court or something to overcome this.

My initial reaction was that I as Attorney-General would seek to do whatever I had to do to overcome whatever the problem was. My advice came back fairly quickly that there was nothing I could do, that I might have standing but that I had nothing to fly with. The only solution, it seemed to me, was this. I cannot remember whether it was suggested to me, but I suspect, knowing me, that I probably said that I would have to amend the act, and that was it.

Ms CHAPMAN: I am happy to indicate that I do not have any other questions.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 17:38 the house adjourned until Tuesday 24 March 2015 at 11:00.

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