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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-11-16 Daily Xml
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Bills

Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 November 2023.)

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (16:28): Mr Deputy Speaker, what I will say is that I spoke at length in support of this bill in the previous week of sitting, and I will leave my comments at that point that I made at that time.

The DEPUTY SPEAKER: You still have five minutes.

The Hon. K.A. HILDYARD: No.

The DEPUTY SPEAKER: You do not want to use them?

The Hon. K.A. HILDYARD: No, I have gone on for some time.

Ms CLANCY (Elder) (16:29): I proudly rise today in strong support of the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023, which seeks to amend the Work Health and Safety Act 2012.

Reform such as the bill before us today is one of the many reasons why I am so proud to be union, proud to be Labor and proud to be a part of the Malinauskas government. This government, and indeed the broader union movement, are firmly committed to the idea that every worker deserves the right to come home safely at the end of each and every working day. Sadly, even in a nation as wealthy and fortunate as ours, this is too often not the case. In the last 10 years alone, more than 100 South Australians have lost their lives at work, including 15 who lost their lives in 2022. These statistics, while already disturbing, do not account for deaths from occupational diseases such as asbestosis or silicosis or deaths related to mental illness caused by work.

When somebody dies at work, something has almost certainly gone wrong. Accidents can and do happen, but it is simply not an accident when an employer has been reckless about something they know causes a serious risk. The first responsibility of every employer, as I know it is for many of the wonderful businesses in my community, must be to provide a safe and respectful workplace.

This bill to criminalise industrial manslaughter ensures there is an appropriate penalty for those dodgy employers or businesses who do not meet the obligations they already have, rather than introducing any new legal obligations. This way, we do not introduce any burden on the overwhelming number of businesses in this state who are doing the right thing. However, we will not be shy in holding to account those who place a worker's life at risk, ensuring the most serious health and safety breaches carry a penalty more appropriate to the crime: a maximum penalty of a fine of up to $18 million for companies and up to 20 years' imprisonment for individuals.

Those of us who currently reside on this side of the house will unashamedly prioritise legislating in the interests of labour and in the interests of working people, not because we do not support business, or whatever slander may be thrown at us that says otherwise, but because we understand that a rising tide can lift all boats, so long as you have one. As policymakers, we can legislate in the interests of working people not to the detriment of capital but in support of all South Australians. South Australians recognise this, and they understand the power of government to make the lives of people better.

This bill, which has been supported immensely through consultation with both the South Australian union movement and the South Australian business community, shows we can get this balance right. Both agree: if you kill a worker, you should go to jail. Prior to our election, we promised the people of South Australia that we would recognise this crime and treat it like one. Through the passage of this bill, we will fulfil our commitment to introduce an offence of industrial manslaughter in South Australia.

The bill allows for a person to be convicted of industrial manslaughter if they breach a health and safety duty, either recklessly or with gross negligence, and this causes the death of another person. This includes the primary duty of care of a person undertaking or conducting a business to ensure, as far as reasonably practicable, the health and safety of workers they engage. Industrial manslaughter laws must serve as a potent deterrent for grave violations of workplace health and safety, imposing penalties that go some way to acknowledging the irreplaceable value of human life and the profound impact on South Australians when their loved ones do not come home from work.

This reform has, unfortunately, taken too long. Instead of being a national leader in workers' rights—and I always love it when South Australia is coming out ahead and doing something first—we now lag behind the rest of the nation. In addition to the commonwealth committing to introduce their own federal industrial manslaughter laws, industrial manslaughter is now already a crime in the ACT, the Northern Territory, Queensland, Victoria and Western Australia. By passing this bill, South Australia joins other parts of the nation in recognising the severity of preventable workplace deaths.

We should also strive for consistency with the recommendations of the 2018 national review into the model work health and safety laws, which recommends the introduction of an industrial manslaughter offence in the model work health and safety act as well as the industrial manslaughter laws of other jurisdictions across the country.

It is also important to note that this reform was developed through community consultation. In addition to our mandate to criminalise industrial manslaughter following the state election, our government sought the insight and experiences of a cross-section of South Australia to strengthen this bill even further. Without genuine consultation across the community, especially those with vested interests in capital or labour, the legislation would fail to accomplish its goal of deterring unlawful dangerous behaviour. We need consultation and cooperation throughout the business community and their representatives, a balance I firmly believe is reflected in this bill.

Following our government's election, we released a discussion paper and held roundtable forums with unions and business groups to discuss the design of laws to criminalise industrial manslaughter. This discussion paper and the roundtable conversations were followed by two consultation drafts for comment. A number of other forums and discussions were also held through this period to provide further constructive feedback on the bill.

I would particularly like to thank every single worker, unionist and business leader who participated in the extensive consultation process that helped bring this bill before us. They have been part of something so incredibly important, so meaningful, and, we hope, genuinely life-saving. I would also like to thank my friend the Attorney-General and his team for their tireless work in bringing this election commitment to the South Australian Labor Party and empowering us to fulfil that commitment to the people of this state in only our second year of government.

As the Attorney-General touched on in his contribution in the other place, I would like to extend my thanks and appreciation to Andrea Madeley and Pam Gurner-Hall for their advocacy and integral role in this reform. Their leadership and strength in the defiance of the loss they experienced when their loved ones never came home is inspiring, and it has made a difference. Every single member in this place should be inspired by your tireless efforts to make South Australia a better and safer place.

Every single South Australian deserves to come home safely at the end of the day, and our work in this parliament is not over until that is a certainty. This is not radical or antibusiness. It is simple: if your gross negligence or recklessness causes the death of another person at your workplace, you should go to jail. I commend the bill to the house.

Mr BELL (Mount Gambier) (16:36): I rise to make a brief contribution to the Work Health and Safety (Industrial Manslaughter) Amendment Bill, and want to take up some of the points that have been put through to me.

Before we start, there is no person I know who goes to work with the intent of seeing one of their workers not come home. That has not been anything I have ever witnessed. We need to be a little bit cautious when we are talking about industrial manslaughter in terms of existing legislation and greatly welcomed requirements around occupational health and safety and workplace changes.

A number of industries in Mount Gambier are potentially extremely dangerous industries. If you have ever been to a timber mill you will know that there are a lot of moving parts, and its whole purpose is to move and cut timber. You are dealing with a very hazardous workplace. Certainly, in my tours over the many years I have grown up there, and having friends who have worked there, the improvements in safety we have seen are quite unbelievable, all with the whole aim of making sure that every worker gets home safely.

In terms of taking it to the next level of industrial manslaughter, there are a couple of things I would not mind talking about. Under the criminal jurisdiction, there have been multiple cases in the past in South Australia where an individual who has a health and safety duty has been convicted of manslaughter under common law by reason of an unlawful and dangerous act in the workplace. The introduction of industrial manslaughter legislation within a work health and safety framework is potentially an unnecessary piece of legislation—as I said, it already exists, and has resulted in convictions for manslaughter.

However, if the bill does pass, I would like to have consideration for a couple of amendments. Under section 30A(1)(d) it states the person is reckless or grossly negligent as to the risk to an individual of death. The position is that the term 'reckless' should be removed from this section such that the section should be amended to read 'the person is grossly negligent as to the risk to an individual of death'. Alternatively, the bill could be amended to change the word 'or' to 'and', such that the section states 'the person is reckless and grossly negligent as to the risk to an individual of death'.

'Grossly negligent' is well defined under the proposed section of the amendment and sets a high threshold for prosecution for individual manslaughter. 'Reckless' is not defined under the bill; however, reckless conduct is defined under the category 1 offence under section 31(1) of the Work Health and Safety Act 2012. Reckless conduct is a lower threshold than gross negligence, and therefore the current wording of section 30A(1)(d) of the amendment creates inconsistency.

Point 2 refers to inclusion of workers in the bill. Section 30A(1) states, 'A person (being a person conducting a business or undertaking, or an officer of a person conducting business or undertaking).' The position is that a 'worker of a person conducting a business or undertaking' needs to be included in the bill.

Section 28(b) of the WHS Act requires workers to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of other persons. Workers currently have a duty to follow any reasonable instructions in the workplace (section 28(c) of the WHS Act), and a duty to cooperate with any reasonable policy or procedure of the PCBU (section 28(d) of the WHS Act). Such a breach of duty could, for example, include a serious failure to follow directions from the PCBU as to the safety procedures or processes.

The position is that the bill should therefore not only be confined to PCBU or an officer of a PCBU but also to a worker who preforms gross negligence in the workplace, whose conduct subsequently results in the death of another employee in the workplace.

Lastly, I refer to the notion that there are alternative verdicts built into this bill. Section 30A(3) refers to a person potentially being found guilty of a category 1, 2 or 3 offence, where a finding of industrial manslaughter is not satisfied. This has the potential of prosecutions for industrial manslaughter being brought as a matter of course, knowing that an alternative verdict may also be found.

This bill should not reflect a position where an unsuccessful prosecution for industrial manslaughter automatically defaults to a possible verdict of a category 1, 2, or 3 offence. The prosecution should ultimately decide as to whether they are seeking a verdict of industrial manslaughter and if the verdict is unsuccessful then the case is dismissed. There would also, of course, be an opportunity to bring back a prosecution as a category 1, 2 or 3 offence, but it is not a drop-down or alternative verdict situation.

In my research around this, there is actually a very good article by Samuel Joyce, who is a barrister here in South Australia. He has put together a paper, which is in the Australasian Legal Information Institute, titled 'A short history of industrial manslaughter prosecutions'. I will not read it, but it is very good reading in terms of the difficulty at common law with industrial manslaughter through this type of bill, as opposed to, like we talked about previously, the common law having the protections already for a manslaughter charge to be laid and prosecuted. I will just read the last bit of it:

So what can we learn from history?

Nothing in the criminal law, the Robens legislation where it remains, or the uniform legislation abrogates the accepted position at common law that the Crown may present an indictment alleging manslaughter against a [person or] corporation. The history of the law workplace death shows, in the words of Professor Sarre, that there are 'grave limitations on the criminal law as a regulatory tool.' And so it should be. The criminal law is not an ideological plaything. History shows that while prosecutions for manslaughter proper in a workplace have in some cases been successful, [as I have said] the prosecutions for statutory industrial manslaughter in Australia have not. In truth they are largely symbolic measures, designed to raise employers' performance and safety attitudes.

They are the words of Sam Joyce, a barrister in South Australia. With that contribution, I look forward to the committee stage.

Mr TEAGUE (Heysen) (16:45): I might start where the member for Mount Gambier left off, although I might say at the outset I could not put it any better than the member for Mount Gambier in terms of the careful way in which the member for Mount Gambier has both appreciated the gravity of the human circumstances that we are dealing with in an industrial space—there could not be more serious responsibilities—

The DEPUTY SPEAKER: Member for Heysen, sorry to interrupt, but are you the lead speaker?

Mr TEAGUE: No, the lead speaker has already spoken.

The DEPUTY SPEAKER: Go ahead. I do not want to shortchange you of time, that is all.

Mr TEAGUE: As I was saying, with respect, in acknowledging the contribution just now of the member for Mount Gambier, I think we all acknowledge that we are dealing in this area of consideration with the most potentially awful of circumstances in terms of the expectation that, when one goes to work, one should have every right and expectation to return home safe and healthy.

When that does not occur, and in the most thankfully rare but awful of circumstances, we acknowledge that the death of a worker is a terrible thing. That is where, on the concerns that the member for Mount Gambier has raised and my colleagues on this side of the house have articulated as well, there comes a parting of the ways both in principle and in practice about how best to address it.

The passage of Mr Joyce's article that the member for Mount Gambier has quoted from bears reflecting upon with great seriousness because the law has always recognised that there is this important if not fundamental inconsistency as between the criminal law on the one hand and the civil regulation of work health and safety on the other. To repeat, there are grave limitations on the criminal law being used as a regulatory tool, and we ought to be very conscious of it.

In terms of the way that the new offence would operate in practice, I think we see on display how much of a problem might ensue. It is there that the member for Mount Gambier raises, I think, a very real example and an attractive proposition as well in terms of practice, that the difficulty of imposing these new provisions is that we would see—I do not know how absolutely clearly—the possibility for there to be a charge laid not under section 13 of the Criminal Law Consolidation Act for manslaughter but under the relevant section of what would be incorporated into the Work Health and Safety Act for industrial manslaughter, and that there is the potential for that to sit alongside what are work health and safety actions of long standing that are well familiar in terms of responses to workplace accidents.

There is a very real difficulty that is associated with any circumstances (a prosecutor is always going to have to form a view as to whether or not to commence a prosecution), but without some very clear delineation, we could find ourselves in circumstances where that vice that Mr Joyce is talking about might not only be there as a highest level form of recourse—we debate the merits of using the criminal law as a regulatory tool at all—but in terms of practice, the very real possibility that the prosecution in this space might be brought, if it is permitted, on grounds that there is enough to charge industrial manslaughter and, if it does not quite come up to proof, then there are these alternatives in the same proceeding of the more longstanding category 1, 2 and 3 offences. I think that creates a very real difficulty.

It has been suggested by the member for Colton that there be a clear separation. I understand that that is the proposition raised by the member for Mount Gambier as well: to say if we are ever in this space—and I am speaking for myself, and I think I have heard other members express it in these terms as well—we have a perfectly good mechanism in section 13 of the Criminal Law Consolidation Act in pursuing any relevant charges for manslaughter.

But if we are in this space and we address the merits of being able to pursue a prosecution more broadly than against a natural person, then there ought to be a very clear delineation between this potential proceeding for this kind of what is termed 'industrial manslaughter' on the one hand and just about anything else that ought to be really very separate.

Maybe not directly going to the point that I have just addressed, but certainly going to the point in relation to what has been perceived by the government in recent days, even in the course of the debate since the bill was introduced, there is a need to make it clear that prosecution under these provisions would proceed as a major indictable offence and to make clear the consequences of that procedurally. I think it indicates that there is a degree to which it might be observed that there is a rush procedurally and, given that we are yet to consider the government's proposed amendment—to make just that point clear—it seems to me that there might be reflection on both making it clear that we are dealing with a major indictable offence and also on the clear distinction, one from the other.

I do not think any argument needs to be made. The elements of manslaughter, those matters that need to be proved, are well familiar; there is no particular difficulty about that. Again, the adequacy of the criminal law in that sense is there and is quite plain. To reflect on an area in which I have had some professional experience, albeit in the civil context, there has been a long debate about the extent to which the wrongdoing of employees can be sheeted home to an employer, even in civil cases, by what is known as a process called vicarious liability. For a long time, the High Court and the authorities going back as the laws developed, particularly in the UK and in Canada, made clear that the employment relationship and the responsibility of an employer for the criminal conduct of an employee was regarded as incompatible with the nature of employment full stop.

I concede that we are not relying entirely on the law of vicarious liability; in fact, we are not considering the elements of manslaughter. We are not even looking at circumstances of deliberateness. We have had reflections about the necessary threshold of recklessness and gross negligence. Again, it is important to reflect on the important difference between what has been long recognised as the important work of the regulatory tools that are contained within the work health and safety legislation and criminal law. In my view, the two ought to be kept completely distinct. If this bill is to progress, then I certainly commend the house's close consideration not only of the government's own amendments, so as to make clear the nature of the proceedings that will need to be followed, but also of those matters that the member for Mount Gambier has raised in the course of his contribution to the debate.

Just while reflecting on the importance of principle in this regard as well, I think it is important to highlight the nature of the relationship between employee and employer, indeed, the nature of the circumstances of any productive workplace, as being characterised by a mutual responsibility. That is in circumstances, of course, of a very well-developed occupational health, welfare and safety process across a wide range of industries.

It has long been settled that despite, and in the context of, what might be necessary training, the implementation application of policies and all the various mechanisms that are designed to ensure the most healthy and safe workplaces day to day for workers, it is nonetheless an environment characterised by, at its core, a mutual responsibility. You cannot achieve what is desired in a workplace without a healthy core of mutual responsibility. Again, it is not for no reason that you have decades and centuries of both law and practice building up that keep separate, to the largest extent, regulatory process on the one hand and the provisions for very serious criminal offences on the other.

I am quick to acknowledge that over the last 20 years or so, and not just in Australia but around the world, we have seen the advent of legislation for various forms of industrial manslaughter. I think as far as Australia is concerned, the ACT might have been the first to legislate a form of industrial manslaughter, and Victoria had been early on considering it as well for inclusion in its statute. There is a form of it in the UK as well.

So it is not as though it is some completely novel step into an otherwise unknown area and it is not entirely creating law, but it is there that I think it is then important to think about the way in which these, in this case, most serious charges might be brought and, if we are to be heading down this path and contrary to the sounds of caution that have been raised in the course of the debate, that we as far as possible keep separate these concepts of regulatory tools on the one hand and criminal offences on the other. There may be important questions to deal with in terms of the burden of proof as well that might arise depending on an intermingling of various different processes under the act. Those might be matters that can be considered in the course of the committee process as well.

In the short time that is available to me, I just want to express and repeat my acknowledgement of the very thorough response and consideration of this bill that has been given by the Australian Hotels Association. They have made detailed and thoughtful submissions—they have been adverted to in some detail by the member for Colton earlier in the debate—and I recognise the AHA's important role and particular contribution to this debate.

I also acknowledge and appreciate the contributions of Business SA and also the Motor Trade Association, each of whom in their different ways have emphasized that principle of mutuality, of mutual responsibility that applies in the workplace. Much like some of the other issues that have come along to this house in recent times—without reflecting on any particular legislation—these are matters for consideration by the parliament in principle and in whole.

They are not matters that ought be come at on the basis of winners and losers and some sort of tug of war of rights, whether it is tenant versus landlord or whether it is employee versus employer. Our responsibility is greater than that. Our responsibility is to ensure that there is, in this case more particularly, an atmosphere of well-regulated, well-supported but mutual responsibility with a view to maximising health and safety in the interests of all concerned.

The Hon. D.J. SPEIRS (Black—Leader of the Opposition) (17:06): I indicate that I am going to be providing a few comments on behalf of the opposition in relation to the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. The opposition will be opposing this legislation in its current form. We have a great deal of concern that industrial manslaughter, as it is currently defined and proposed to be dealt with in this body of legislation, does not strike the appropriate balance between the business and the employee.

It could create a number of situations that we have great concern about where the balance is out of whack with regard to personal responsibility, and we have significant concern about perhaps unintended reputational damage both to individuals and businesses as a consequence of some of the mechanisms contained within this legislation.

We certainly do not oppose this legislation on the intent of the bill because I believe that everyone in this parliament and the vast majority of people in the community do hold a shared view that we must take all reasonable steps to reduce instances of workplace injuries and workplace deaths. That is something that must weigh heavily on, I think, the vast majority of employers all of the time—the desire and the need and the responsibility to keep those who work within their businesses as safe as possible and to ensure that everyone goes home at night to see their families after a long day in the workplace.

However, we do not believe that this bill is the right way to go about achieving this outcome. The bill creates the offence of industrial manslaughter. I want to just provide the definition, which is outlined in the proposed act, and that is that an individual or body corporate commits industrial manslaughter if, and there are a number of options here:

the individual or body corporate has a health and safety duty;

the individual or body corporate engages in conduct that breaches that duty;

the conduct of the individual or body corporate causes the death of a worker to whom that duty is owed; and

the individual or body corporate engages in conduct with gross negligence or is reckless as to the risk to a worker of death or serious injury or illness.

The bill provides for a very substantial penalty where a breach of the existing duties occurs through gross negligence or recklessness which then results in the death of an individual. The maximum penalty is 20 years' imprisonment for an offence by an individual, or a fine of up to $18 million for an offence by a body corporate. The bill proposes that the two-year limitation period for prosecution under the act would not apply to industrial manslaughter prosecutions which, of course, significantly widens the scope of the legislation, and we believe is something else that might get this legislation a bit out of balance when it comes to striking the appropriate penalty regime versus consequences.

The opposition appreciates that the government has presented two versions of this bill for consultation, but we still have significant concerns about the impact of the legislation. We note that business peak bodies also share our concerns, or perhaps we share theirs, and those concerns have not been addressed in the version of the bill that is before the House of Assembly today.

Canvassing why we believe that this legislation presents the wrong mechanism to achieve what I believe is shared political intent and the shared intent of many employer organisations, it is worth just thinking about the decades-old principle that has underpinned workplace safety and the principle that underpins current WHS legislation, particularly the Work Health and Safety Act, and that is the concept of mutual obligation within the workplace. All participants—employers, employees, directors of businesses and, in the context of this bill, bodies corporate—should have a shared responsibility for workplace safety.

It is the Liberal Party of South Australia's firm view that we cannot achieve what is desired here—and that is to reduce, as much as practically possible, workplace injuries and deaths—without working together. Employers and employees coming together under the umbrella of mutual obligation, we believe, is essential and should be more recognised within this legislation than it is. The opposition is concerned that, in the event of an instance of an offence of industrial manslaughter being committed, only an individual or body corporate can be prosecuted, and there is not the recourse to pursue an employee or another individual: an individual, perhaps, with what you would normally suggest is a sphere of influence with regard to a particular incident.

This bill, unfortunately, creates an 'us and them' approach to workplace safety. That is a message and an approach that the Liberal Party of South Australia cannot support. At the end of the day, employers and businesses do need to be held accountable for ensuring that the very best procedures, training and maintenance are followed, and they should be held accountable for their actions when these fall short of expectations. In the same way, employees have an obligation to their fellow workmates.

In the circumstances where the most egregious breaches of workplace duties occur, where gross negligence or reckless actions have led to the death of someone in the workplace, the individual, individuals or otherwise should rightly be held responsible and they should rightly face a very significant penalty—but all individuals should be treated equally. A number of the submissions from employer organisations such as the Motor Trade Association or the Australian Hotels Association (South Australian Branch) have made it very clear that they have great concerns about the lack of equality within this legislation.

Under this bill some individuals may have a health and safety duty and may engage in conduct that breaches that duty, particularly where an employer has taken all reasonable steps to mitigate that outcome. But, under this bill, they would not be prosecuted to the same threshold as those who own and operate a business, a body corporate and the like.

Within any organisation there rightfully should be collective responsibility for employers and employees to ensure that everyone works in a safe environment, and if something unthinkable was to occur at a workplace, everyone should be held responsible and accountable for their actions equally. In addition, the opposition is concerned that under the proposed bill an individual or body corporate could suffer significant or detrimental reputational damage as a result of being charged with industrial manslaughter despite eventually not being able to be found guilty of an offence.

We need to ensure that charges for industrial manslaughter are quarantined for the most egregious offences, rather than us see instances that could significantly damage an otherwise good reputation of businesses trying their best to employ South Australians. The opposition has moved a number of amendments to address our concerns, and we hope that they will be supported by the government. Our firm view is that when industrial manslaughter charges are brought they should only be done in circumstances where there is near certainty of a successful prosecution.

Businesses, like individuals, can suffer reputational damage. Given the complexity that would come from suggesting any sort of suppression regime, where the principle of the right of innocence until proven guilty could be maintained, we strongly urge members that this is carefully analysed, that a legislative regime is put in place that would enable an approach such as the alternate verdict framework to be changed. That would ensure that when charges are brought, they are done so with certainty, and that potential reputational damage to South Australian businesses and individuals is limited. The proposed amendment is also in line with the submission that was provided to the minister by Business SA.

In closing, again I want to emphasise that it is my firm view that the intent of both sides of the house, and of the vast majority of South Australians would be to ensure that at every single opportunity employees in their workplace are treated with respect, they are given the opportunity to stay safe, and be able to make an income in an environment where they are protected by their employer, but it is our firm view that a mutual obligation must be embedded within that.

I want to thank the many employer representative organisations that have spoken to the opposition about this: Business SA, the Motor Trade Association, the Australian Hotels Association, and others who have come forth and particularly spoken to the shadow attorney-general about this matter, and worked through the complexities of what is a difficult piece of legislation to both comprehend but also to implement. The opposition will be opposing this because we think the balance has not been struck, and I commend the bill, as it stands with the amendments that we have proposed, to the house.

Ms WORTLEY (Torrens) (17:18): I rise to speak to the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. We have seen throughout this country's history that unhealthy workplaces can engulf a generation and, unfortunately, become the most defining part of one's life. The devastation resulting from the mining and milling of blue asbestos and the suffering of the victims and their families are marks on our nation that should never be repeated and never be forgotten. Then, there are the workplace accidents that end lives suddenly. The shining light of families whose lives end almost as quickly as the blowing out of a candle. When a person closes their front door heading off to work each day, they do so with the intention of walking through that door at the end of their shift. When we say goodbye to a loved one as they are heading out the door, we do not expect it to be for the last time but, for so many, this has been the reality.

Attendance at Trades Hall over the years as the delegate for the teacher's union and a delegate and a member of the executive of SA Unions for the Media Entertainment and Arts Alliance exposed me to the many tragic stories of serious worker injury and death and the dedication of the union movement to do what they could to address it.

Today I recognise the men, women and young people, the teenagers, who have lost their lives over the years through workplace death and their families who have had to live their lives without them. The bill before us today delivers on our government's election commitment to legislate an 'offence of industrial manslaughter in South Australia.' The bill aims to deter unsafe work practices by applying an appropriate penalty when a person conducting a business fails to 'as reasonably as practicable' ensure the health and safety of the workers in their employ. Through this, it recognises the traumatic loss, the heartbreak, suffered by the families of victims of workplace tragedy.

The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 will mean a conviction for industrial manslaughter can result if a person is found in breach of a health and safety duty, either recklessly or with gross negligence causing the death of another person. Following an extensive consultation process with businesses, unions, and health and safety professionals has led to this bill being present here today.

The penalties are a fine up to $18 million for companies and imprisonment of up to 20 years for individuals. The bill brings South Australia into line with Victoria, Queensland, Western Australia, the Northern Territory and the ACT, all of which have introduced industrial manslaughter laws.

We all know accidents happen and we know that the majority of businesses in South Australia take the health and safety of their workers seriously. For those employers who do not, the bill before us sends a clear message: if you are an employer who is reckless or grossly negligent with workers' health and safety, there will be a significant price to pay.

Statistics reveal that, on average, 12 South Australians die every year at work; this is on top of those who suffer serious injury and illness. The devastation of losing a loved one through a workplace death is no more present than at the International Workers' Memorial Day service each year hosted by VOID, Voice of Industrial Death. If you are not familiar with VOID, I encourage you to look at the Facebook page, a page that overflows with grief.

On this day, family members light a candle for the loved one they have lost and each year the number of lives lost collectively increases; the number of candles increases; the number of families suffering increases. The bill before us today aims to address this, helping to ensure that workers return home at the end of their shift.

The Hon. D.G. PISONI (Unley) (17:23): I do not want to go over what has been raised by other speakers in the Liberal Party, but I want to talk about some of the anxiety and perhaps the reasons for that anxiety in the small business community in particular about this bill.

I think Innes Willox from the Australian Industry Group has probably described the current environment under wall-to-wall Labor governments, particularly the Albanese government and its endeavour to return Australia back to the industrial relations system of the 1950s. He said:

…the federal government's proposed industrial relations changes are simply 'modest'—

and this is what was claimed by ACTU Secretary Sally McManus. She made this claim in the Australian Financial Review. Innes Willox went on to say:

…Australian employers and their workforces would be intrigued to know what unions would see as their real demands.

Rather than being modest, what is being proposed is a radical makeover of Australia's workplace relations. He continues:

Redefining who is an employee is not modest. Nor is fundamentally redefining who can be a casual. Granting the Fair Work Commission, a tribunal that has only ever regulated employment arrangements, sweeping new powers to also set conditions for independent contractors and an almost open-ended capacity to intervene into commercial arrangements between businesses across Australia's supply chain is certainly not modest.

This, of course, refers to the reintroduction of the TWU's 'fair rates' that was responsible for the suicide of contract truck drivers the last time that was brought in by the Gillard government. It restricted the ability for contractors to price their work as truck drivers with their own rigs, favouring the big union companies, the companies that employed union members as employees. He goes on:

Giving union delegates the right to represent workers who do not even want to join a union is not modest. I doubt that many employers would regard the proposal that they be required to allow an uncapped number of their workers with an unspecified period of paid time off work to attend union training as modest.

Similarly, expanding union rights to wander around workplaces and to comb through the employment records and personal details of workers without even providing advanced notice is not modest.

Mr Willox goes on to highlight a number of the quite extreme measures that the Albanese government is putting through at the federal level. Another one here is letting unions hold the power to block employers from entering into enterprise bargaining agreements, even if the workplace supports it. Again, he says that is not a modest return. Winding back this legislation is winding back all the very progressive legislation in the industrial relations area that was introduced by the Hawke and Keating government in accord with the union movement.

You can see that when small business learns about the rollout of industrial manslaughter laws and the criminalisation of industrial manslaughter, they are concerned about getting a fair go, because what they are seeing from the agents of the labour movement, the Labor government, Labor governments around Australia, is a grab for their businesses by others who believe that they know how to run businesses better than those who are investing their own money in those businesses.

Another area I am concerned about with the industrial manslaughter laws is that all the responsibility lies with the employer for the industrial safety of the workplace. Starting my life on the factory floor as an apprentice, I witnessed some quite awful matters, and one very serious one where a fellow worker took shortcuts in setting up the spindle moulder. For those who are not familiar with a spindle moulder, it is a bit like a reverse router but instead of moving the router around the piece you are shaping you actually move the piece you are shaping around a very large cutter. It is very important that that is protected, and it takes time and some skill to do that.

A wood machinist, which is the trade that delivers that, requires that you have the skills and ability and that it is your responsibility to ensure that machine is safe. Unfortunately, this employee, this work colleague of mine, thought he would take a short cut and ended up losing, I think, three fingers in that process. It was a horrific accident. Sure, he paid a very big price. He was only in his late twenties when that happened, but it was his responsibility to ensure that machine was set up properly and was properly guarded.

I think where we are seeing a challenging situation in the modern workforce is in the area of people turning to medical cannabis, for pain relief in particular. One of the biggest issues with medical cannabis, of course, is that even if you are taking medical cannabis that is prescribed and you turn up for work and there is a very rigorous occupational health and safety program at that employment site, you are sent home if you are detected having drugs in the system.

Many of the treatments for medical marijuana have traces of THC, and even though you might not be impaired—although it is very difficult to come up with a formula of impairment for THC in the blood—you will be sent home and, if you are recidivist in failing the drug testing, you will lose your job. We heard a witness in the select committee on marijuana explain that.

I also asked David Henry, the then National Work Health and Safety Coordinator at the Australian Manufacturing Workers' Union, when he gave evidence, if there would be difficulties, with employees using prescribed cannabis for pain relief, in managing a workplace and what would happen if the employer, for example, decided, 'Yes, we're very progressive here. There are at least two medical cannabis medicines approved by the TGA; it must be safe. If somebody can show us that this is approved—it is a prescription and is medicine for pain relief—we will ignore that THC reading on the drug test.'

What happens, in that instance, if that person is actually impaired, with this new policy in place, and their impairment in operating machinery—using a forklift, driving a vehicle, driving a B-double down Cross Road or in other densely populated areas with lots of traffic—was the cause of an accident that saw either his or somebody else's death? I do not know that this legislation covers that employer off.

It is a risk, so what will happen to those people who are on medical marijuana may very well be that they have to come off medical marijuana; go onto opioids, which we know can do terrible damage to the body with long-term use and are addictive; simply put up with the pain; resign from their job; or get the sack. I think this is just one example of the challenges of legislation like this and is an unintentional consequence of this legislation.

I think those that have read the piece by Mr Willox in the Australian Financial Review of a couple of weeks ago would also see that, combined with the industrial manslaughter laws, as just another tool that the union movement has to throw at employers if they want to throw their weight around.

Many small employers are not in the union system. Their employees are very happy with the arrangements that are made with their staff. They often have several members of the same family working for them because of the environment and security that the small business can offer, and everybody works as a team. It is not like working for a big company, such as an automotive company or a large building firm, where there may be a culture that may predict how people behave or there may be a reason for a type of behaviour in a workforce or by management.

My experience has always been in my own small business, in many small businesses that I did business with and those that I have visited as the member for Unley and as minister for innovation and skills, learning how these businesses work, you see that a lot of it is based on trust and mutual respect. That is how industrial relations should also be managed. Health and safety should also be managed with mutual respect, particularly in those small businesses where everybody has something at stake for that business to be successful and for those industries to survive. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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