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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-11-28 Daily Xml
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Bills

Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2023.)

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (11:01): Everyone deserves to be safe at work and to return home at the end of their shift. Workplace deaths are an unspeakable tragedy and so often preventable. As a community, we work toward this by employers providing a safe workplace and employees acting with due care for themselves and their colleagues. It is a sad moment when anyone suffers an injury at work and experiences uncertainty, stress, and the possibility of changes to their long-term capacity to support themselves and their family. But it is an absolute tragedy when anyone loses their life at work, and we have an obligation to do all we can to prevent this from happening.

In the past year, 15 people in South Australia lost their lives due to workplace accidents. Over the last 10 years, more than 100 South Australians have lost their lives at work. Every one is an unspeakable tragedy for friends, for family and for the broader South Australian community. These figures should serve as a stark reminder to both our community and policymakers of the urgent need for robust work health and safety legislation. Such measures are crucial in preventing avoidable workplace injuries and, ultimately, saving lives. With this in mind, we went to the 2022 election with a promise to introduce industrial manslaughter legislation if we were elected, and the bill before us today is another example of the Malinauskas government delivering on its election promises.

Sometimes there are genuine and tragic accidents that are almost impossible to avoid, but there can also be circumstances where a person or an organisation recklessly or negligently breaches their legal obligations. Under this legislation, a person can 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.

The maximum penalties are a clear deterrent to people or organisations who do the wrong thing, with fines of up to $18 million for companies or imprisonment for up to 20 years for individuals. These penalties recognise the grief and trauma suffered by families of victims of workplace tragedies who die in circumstances that could and should have been avoided. Employers already have an obligation to provide a safe workplace and act with due care, so this bill does not introduce any new legal obligations that do not already exist. What the bill does is ensure there is an appropriate penalty when those obligations are breached.

The bill before us follows extensive consultation with businesses, unions and health and safety professionals. If passed, the legislation would also bring South Australia into line with other jurisdictions, including Western Australia, the Northern Territory, Queensland, Victoria and the ACT. They have all introduced industrial manslaughter laws. Commonwealth, state and territory work health and safety ministers also agreed earlier this year that industrial manslaughter will form part of the model national laws. With this in mind, our bill has been drafted to be consistent with the majority of other states and territories.

On average, a dozen South Australians die every year at work, with roughly three-quarters of these occurring in just three areas: primary industries, transport and construction. Every one of these people was a valued member of their family, their community and their workplace. They had more to give and more to achieve in their lives.

The overwhelming majority of South Australian businesses do the right thing by taking the health and safety of their workers seriously. Businesses know their greatest asset is their people and they take steps to protect, support and develop their employees. This bill sends a clear message to the small number of employers who are reckless or grossly negligent with their workers' health and safety, and this will ensure they are held to account.

The Attorney-General in his second reading speech specifically recognised the advocacy of both Andrea Madeley and Pam Gurner-Hall in this area. Both have experienced unspeakable loss as a result of the workplace death of loved ones, and they have used these experiences to passionately and tirelessly advocate for workplace safety.

As our community evolves and changes, so do risks in our workplaces, and we have seen increasing reports in recent years about risks to delivery drivers and the health impacts of working with engineered stone. Our Labor government is proud to be taking other measures to improve worker safety and reduce the risk of injury or death.

In August this year, the Attorney-General announced new regulations to introduce an express prohibition on the uncontrolled processing of engineered stone products. This was in line with changes by Safe Work Australia to model work health and safety laws. Under the regulations, it will be an offence for a person conducting a business or undertaking to direct or allow a worker to process engineered stone without specific control measures in place to minimise the risk of silica dust inhalation.

All workers involved in cutting, grinding, trimming, sanding or drilling engineered stone products must be provided with respiratory protective equipment and use a dust control system, such as a water suppressant or exhaust ventilation. These regulations carry penalties of up to $6,000 for an individual or $30,000 for a body corporate, in addition to existing criminal offences under the WHS Act, which provide for up to five years' imprisonment and fines of up to $3 million for reckless conduct which exposes a person to the risk of death or serious injury or illness.

The new regulations came into effect from 1 September 2023, and I understand further work is ongoing at the national level to consider other actions to possibly ban the importation of or consider new regulations dealing with high-risk crystalline silica processes. The Attorney-General has also moved to improve SafeWork SA and the South Australian Employment Tribunal. Importantly, and something I am very proud of, we passed the Fair Work (Family and Domestic Violence Leave) Amendment Bill 2023 in this place earlier this year.

Work is a fundamental part of our community. It produces the things we need to survive, and it offers dignity to people to earn an income and make choices about how they spend it. It builds wealth that pays for critical public services. To make sure that workers and workplaces around the state continue to make the best possible contribution to our economy and our community, we have an obligation to make them as safe as possible.

Personally, I would like to dedicate this bill to all the people who have lost members of their family or their close friends due to workplace accident or injury and I commend the bill to the house.

Ms HUTCHESSON (Waite) (11:09): Everyone deserves to be safe at work. No matter your occupation, it is everyone's responsibility to ensure workplaces have the necessary policies, procedures and protective equipment to protect their workers, including the owners and the managers. Every day, my son heads off to work in the construction industry. He spends his day climbing up and down ladders, between roof trusses and under heavy beams. He uses power tools that can seriously harm and even kill people, and every day I worry about him. I worry I will get a call that something has happened.

For me—touch wood—so far, it has been just some cuts and bruises and scratches, but for other mothers, other fathers and other siblings, it is different. Their loved one went to work one day and never came home, and it is heartbreaking to know that many of these deaths could have been avoided. I have heard firsthand from a family who have experienced just that. Their 16-year-old son, Jacob, went off to work on a cattle station and never came home. He was crushed by a cattle truck. His mother is still searching for answers as to what occurred. According to SafeWork, there was no breach of workplace laws, but that does not help his mum, Kylie. She now has to live every day without Jacob, and that is heartbreaking.

This bill will not bring Jacob back, but what it will do is ensure that employers or persons conducting a business or undertaking do all they can as far as reasonably practicable to ensure the health and safety of their workers. This bill delivers on our government's election commitment to introduce an offence of industrial manslaughter in South Australia. A person can 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 bill's main purpose is to encourage safe work practices and to encourage employers to take the health and safety of their workers seriously, because, if they neglect to do so, the maximum penalty is a fine of up $18 million for companies or imprisonment for up to 20 years for individuals. This bill does not introduce any new legal obligations on employers. Employers are already responsible for their workers' health and safety and should be making it their number one priority. What this bill does do is ensure that employers will face serious penalties if they ignore their responsibilities and the worst occurs.

This bill is the outcome of an extensive consultation process with business, unions and health and safety professionals. Our unions are there to ensure workers know their rights, to assess workplaces for health and safety and to ensure employers are doing the right thing by their workers. I want to thank them for all that they do and, no doubt, the countless lives that they have saved. The purpose of this bill is to deter unsafe work practices and recognise the significant and traumatic loss suffered by the families and victims of workplace tragedies.

It is the case that this bill now brings us in line with other states, including Western Australia, the Northern Territory, Queensland, Victoria and the ACT, who have all introduced manslaughter laws. As I said previously, it is too late for the hundreds of families who grieve every day for their loved ones, and it is most definitely well overdue. I am also glad to hear that commonwealth, state and territory work health and safety ministers also agreed earlier this year that industrial manslaughter will form part of the model national laws.

Every year, on average 12 South Australians die from a workplace accident, with roughly three-quarters of these occurring in just three areas: primary industries, transport and construction. The construction industry—the industry my son works in—is incredibly dangerous, and I hope that this bill will encourage all employers to review their workplace practices and their health and safety guidelines, and enforce them to ensure that their workers are safe. While the overwhelming majority of businesses in South Australia do the right thing, this bill sends a clear message to any employers who are recklessly or grossly negligent with their workers' health and safety that they will be held to account.

I would like to thank the Attorney-General and his team for the work they have done to bring this bill to the house, along with Andrea Madeley and Pam Gurner-Hall, whose advocacy after losing their loved ones has helped shape this bill. To Kylie, Mick and the countless families who grieve for their loved ones, I hope that this brings some comfort that this government takes work health and safety seriously. The swift passage of this bill into law will help protect workers into the future. It will not bring your loved ones back, but it might just save a life of someone else's. I commend the bill to the house.

Mrs PEARCE (King) (11:13): I firmly believe that every worker should be able to come home safe from work. This is a belief that was instilled in me from a very young age. Unfortunately, I have seen friends hurt and know of people who have died on worksites. It is a reality that I have grown up with. I believe that I have shared before in this place the promise that my dad and a few of his workmates made to one another: should something happen to one of them, the others would be there to take care of their families left behind. That is something more than words; it is a promise that they absolutely lived by, because the reality is that, whilst their work is incredibly rewarding and vital, it is also quite dangerous.

I have always been determined to do what I can to help make improvements in this space because the unfortunate reality is that workplaces today are still not always safe. There are still workplace injuries and deaths occurring throughout the country. Sometimes they are a tragic accident; other times they are completely preventable. Either way, the pain caused reverberates around the worker after this happens.

To better help protect workers, we understand that more needs to be done so that they can return home from work in the same condition that they left it. That is why I am so proud to stand here today to speak in support of the Work Health and Safety (Industrial Manslaughter) Amendment Bill, as it will go some way to making sure that workers are safer in the workplace. It is an election commitment that I am proud that we are delivering on because it is one that is going to help workers stay safe so that they can go home—home to their kids who are busting with excitement to tell their mum and dad about their day; home to mum and dad after beginning their new job or to a partner who is waiting for their loved one to return home just as they had left it.

Of course, this is the case for many workers across the state, as the overwhelming majority of businesses believe it is a priority to preserve the health and safety of their workers. However, for those employers who are engaging in reckless or grossly negligent practices, this bill intends to send a clear message that they will be held to account for the wellbeing and safety of their workers. It is an incentive to encourage better.

Where there is a health and safety breach, either recklessly or with gross negligence, and this causes the death of another person, a person will now be able to be convicted of industrial manslaughter. This will include the primary duty of care of a person conducting a business undertaking to ensure, as far as reasonably practicable, the health and safety of workers that they engage. If employers do not ensure this, they can face maximum penalties of a fine up to $18 million for companies and imprisonment of up to 20 years for individuals.

Importantly, this bill does not introduce extra or any new obligations on employers. What it does do is ensure that there is an appropriate penalty for employers who recklessly or through gross negligence breach those obligations which are there to keep workers safe.

Around the country, more and more jurisdictions have introduced industrial manslaughter laws, with commonwealth, state and territory work health and safety ministers having agreed earlier this year that industrial manslaughter will form part of model national laws. Currently, industrial manslaughter laws operate in Queensland, Victoria, Western Australia, the Northern Territory and the ACT, and this bill before us today has been drafted so that it is consistent with those states and territories.

The unfortunate reality we face is that on average every year a dozen South Australians will die at work. Of these deaths, three-quarters occur across just three sectors: primary Industries, transport and construction. Accidents happen—I do not dispute this—but ultimately employers have a responsibility to ensure that workers who turn up to work can, at the end of the day, clock off and head back home, and an employer must be able to provide a safe workplace to make this happen.

Across the country, we have seen workplace deaths trend downwards, decreasing 57 per cent from a peak in 2007 and 35 per cent over 10 years, as highlighted by Safe Work Australia's 'Key work health and safety to statistics, Australia 2022' report. It is really positive to see this, but there is still so much work to be done, because in 2021 we still had 169 workplace deaths recorded, of which 16 happened here in South Australia. In my belief, that is 16 too many.

The pain and devastation that is caused by losing a loved one who is just going about their day, turning up to work with the expectation that they will be able to go home at the end of their shift, is immense. That pain reverberates not only through the immediate family; it impacts their friends and communities that they are also part of.

For families, the loss of a loved one can add further to the struggle of making ends meet. Families are left behind having to contend with the overwhelming feelings of grief and trying to work through that, while also having to contend with the realities of life's demands. Families must still ensure that their bills are being paid on time, that there is enough money for food, getting to appointments, looking after the welfare of their kids, while still dealing with the pressures of life which do not stop with the tragic death of a family member at work, which unimaginably compounds these challenges. There is also the impact on health and wellbeing of family members who, processing the trauma and loss, are negatively affected both physically and mentally, often for years after the death has occurred.

There is one component of this bill that I especially would like to touch on. New section 30A(2) provides that conduct is taken to cause the death of an individual if it 'substantially contributes' to the death, and that the concept of substantially contributing to a death is intended to include conduct that causes a person to be injured or to contract an illness (which includes mental illness) later causes the person's death.

Recognising mental illness as a form of injury in the workplace is a cause that is incredibly close to my heart. I do not speak about this too often but, as many in the chamber know, my brother took his life just a few years ago. It was a very traumatic experience for my family and I, and we are still healing. It has been quite the journey. Through his experiences, I know that improvements like this bill will help to save lives.

In a period leading up to his death, my brother experienced harassment in the workplace over an extended period of time. Knowing the behaviour was unacceptable, he reached a point where he wanted to take a stand because his belief was that if he were just to leave, the behaviour would continue and somebody else would be impacted. I will say at this point that I am incredibly grateful for the union movement for the support that they provided him during that time, advocating for improvements to be made and checking in on him whilst he was in the midst of a toxic environment seeking change.

What he experienced in the workplace was direct, through behaviour such as verbal abuse, derogative behaviour and active disengagement, and also indirect, where he was actively pressured to deliver more whilst also constantly feeling that his position was not secure and that he was not valued. All of this had a tremendous impact on his health and wellbeing, even after action had been taken.

I often wonder whether, had more incentives for employers to invest in wellbeing in the workplace and more awareness of the expectations of this form of injury in the workplace been available, would things be different now? We spend so much of our lives at work. We cannot pretend that we are able to switch off at the end of the day, able to shed all that we have been exposed to and that it does not have a lasting impact on our wellbeing. I was not able to prevent what happened, nor can I change it. What I can do is I can learn from the experience.

I feel the impact deeply that a loss like this has and how widespread it can be. It is why I want to do what I can to ensure that there is less of a chance of this happening to somebody else. Regulations around psychosocial hazards are one progressive step, as is today's bill because it creates additional incentive and makes it abundantly clear that there is a responsibility to protect workers from this form of injury.

As I said earlier, I do acknowledge that accidents occur, and unfortunately the reality is that accidents will continue to occur. But not every workplace death is an accident, and where the employer does not undertake their obligations to ensure a safe workplace for workers and foreseeable outcomes occur through their reckless or gross negligence, their impact is not just one worker losing their life: it is a community of people losing a loved one, and the impacts of that are felt far and wide.

It is a community of people who have called for this change to be implemented, from the families affected by the loss of a loved one at work through to the trade union movement, who are there to protect workers, and the many people across the community who demand that more must be done to take a stand to be able to send a clear message to employers who are not doing the right thing that if a worker dies at work, they will be held accountable.

This will ensure that legislation will act as a deterrent for such gross contraventions and neglect of our work health and safety laws, which are there to ensure the safety of all workers, and in doing so it will come with penalties that recognise the costs of workers dying at work and the impact that this has on their family, their friends and the wider community. I commend this bill to the house, and I cannot wait for its implementation so that we can help ensure more workers return home safe.

Ms HOOD (Adelaide) (11:24): I rise today in support of this amendment bill that will aid in keeping workers safe. I want to reiterate the comments of the member for King and express my condolences and love and support to her family on the loss of her beautiful brother.

I am proud to be part of a government that delivers on its promises. We were proud to make a commitment, prior to the election, to introduce an offence of industrial manslaughter in South Australia, and now we are delivering on this very important promise. This amendment bill will mean that a person can 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.

Everyone has the right to feel safe at work. Every worker should go to work knowing and believing that their workplace will not harm them. No worker's life should be at risk at work. It goes without saying that the health and safety of workers should be the number one priority for businesses. They have a duty of care and they should protect their workers as far as reasonably practicable. These amendments will introduce a fine of up to $18 million for companies and imprisonment of up to 20 years for individuals. This is a small price to pay in exchange for a worker's life.

Unsafe work practices can be rife within many businesses; however, most of these businesses are uninformed or wilfully ignorant, which is where our unions step in. Our union representatives, our organisers and our delegates on the shop floor, in the warehouses, on the worksites, on our roads and on the ground are holding businesses to account and doing their best to ensure the health and safety of all workplaces around the state.

This bill adds another layer of protection for workers. This bill will deter unsafe work practices and recognise the significant and traumatic circumstances of a loss of life in the workplace. It reflects the loss suffered by the families of victims of workplace tragedies and it ensures there is an appropriate penalty when their duty of care is breached.

This bill does not introduce any new legal obligations for employers, but, make no mistake, these penalties will force the health and safety of workers to be taken even more seriously. The fact is that in the last two years 30 South Australians have lost their lives at work, occurring largely in industries such as transport, construction and primary industries. This legislation sends a clear message to those employers that human life is precious and that those who are recklessly or grossly negligent with the health and safety of workers will be held to account.

My father works in primary industries, my brother operates heavy machinery in the mines and my partner works in construction. It is not lost on me how important these reforms are for keeping our loved ones safe and ensuring they come home to us every night.

I applaud the Attorney-General for introducing these reforms. I also acknowledge the tireless efforts of both Andrea Madeley and Pamela Gurner-Hall, advocates who have experienced unspeakable loss as a result of the workplace deaths of loved ones. A mother who lost her son and a wife now widowed, both understand the impact an industrial death can have on a family. These families deserve justice, and this legislation is the closest that they will get to it. No-one should risk their life to earn a living. I commend this bill to the house.

Mr BROWN (Florey) (11:27): I am pleased to rise today to support the Work Health and Safety (Industrial Manslaughter) Amendment Bill. This bill represents the delivery of an important election commitment made by Malinauskas Labor prior to the 2022 election to introduce an offence of industrial manslaughter in South Australia. I believe it will be difficult to find a person in our state, or indeed in our nation, who would not agree that coming home from work alive and well should be one of the fundamental rights that every Australian has a daily opportunity to avail themselves of.

I feel confident that there is no question at issue in terms of whether it is desirable—whether it is a legitimate and widely recognised social and moral imperative—that people in our community should have the opportunity to return home safely to their loved ones after each working day has ended.

The differences in view that you are more likely to find, I suspect amongst both the broader community and within this house, will be in relation to what actions should rightly be taken by government in the attempt to positively influence the degree of meticulousness and care in the efforts that are undertaken within South Australian workplaces to create and maintain safe conditions for workers and, in so doing, to try to mitigate the incidence of workplace deaths in our community.

I would like to hope that everyone in this place would agree that workplace deaths occur far more frequently than they should. The most recent data available from Safe Work Australia indicates that as of 9 November this year 132 workers around the nation have lost their lives at work this year. It strikes me that 132 workplace fatalities for the year so far ought to feel like a high number, but in fact in each of the last four previous years, that is to say in the years 2019 through to 2022, the lowest total number of workplace fatalities in any of those calendar years across Australia, as reported by Safe Work Australia, was the 2021 figure of 172 workplace deaths. Each of the other three years—2019, 2020 and 2022—saw a number above 190.

Encouragingly, over time the numbers have been trending in the right direction. Available data tells us that workplaces are consistently safer than they have been in previous periods. For example, according to Safe Work Australia's data the peak in workplace fatalities in contemporary Australia occurred in 2007 with a shocking 310 people around the nation losing their lives at work that year.

I believe it is no coincidence that the defeat of the Howard government occurred at the beginning of a period of observable decline in workplace deaths. The reduction in fatalities following the years after 2007 offers persuasive evidence that the strength of legislative frameworks in the area of industrial relations can and does influence workplace safety as a whole. It does so not only directly through a strengthening of laws but also in terms of promoting social awareness and affecting a cultural shift towards recognising and respecting the rights of working people, including in the area of workplace safety. The actions taken by governments do matter, and a Malinauskas government intends, in part through this legislation now before the house, to continue improving conditions and strengthening workplace protections for South Australian workers.

To return to the numbers, Safe Work Australia's data can be examined on a state-by-state basis. Over the period of the years 2003 through to 2022 inclusive, the data indicates that the total number of workplace fatalities in South Australia was exactly 300. That is 300 workers who deserve to be safe, 300 families whose loved one left for work and never returned. That is an experience that nobody should have to endure. Some of those deaths were, of course, caused by tragic accidents—events that cannot be attributed to any one person's fault. It is a very sad truth that terrible misfortunes will occasionally arise that likely could not have been prevented by greater care taken or stronger laws in place.

Accidents do happen—sadly, they always will—but it is also the case that many of the deaths that we see in our workplaces arise from incidents that could have been prevented with the right safety measures firmly embedded and diligently adhered to. Meticulous attention to workplace safety can make a substantial difference to outcomes. There can be little dispute that breaches of and underlying inadequacies in workplace safety practices do play a meaningful role in the incidence of fatalities.

Laws that strengthen accountability can only serve to heighten the level of attention that workplaces will dedicate to ensuring safety for workers. Such a contention is not pure speculation: it is supported by experience. Under the provisions of this bill, which creates a new offence of industrial manslaughter, a person can be convicted of that offence if they breach a health and safety duty either recklessly or with gross negligence and this breach causes the death of another person. This includes the primary duty of care of a person conducting a business or undertaking to ensure, as far as is reasonably practicable, the health and safety of workers they engage.

The purpose of the bill is unequivocally and straightforwardly to deter unsafe workplace practices by creating consequential disincentives. The maximum penalties proposed are a fine of up to $18 million for companies and imprisonment for up to 20 years for individuals. It is quite important to underscore the fact that this bill does not introduce any new legal obligations for employers which are not already in place under our current laws. It simply provides that, where it is warranted, an appropriate penalty may be applied—a penalty more befitting of the gravity of the offence—when those obligations are breached recklessly or with gross negligence.

The intention is that this legislation will act as a deterrent to unsafe workplace practices. We do not want workplace fatalities in South Australia. The meaningful deterrent measure represented in the provisions of this bill cannot reduce the incidence of tragic accidents to zero, but the intention is that they will act as a powerful driver of increased attention to workplace safety on the part of enterprise. Where charges are brought and a successful prosecution is carried out, we want the penalties to be appropriate to the gravity of the offence and to do justice to the magnitude of the tragedy that has resulted in the preventable loss of a life.

If you want an example of exactly what we hope to see a lot less of you need to look no further than the following incident. On 9 May 2006, there was a terrible explosion at a munitions factory near Gladstone in South Australia. The incident killed three workers and two others were injured. The Industrial Relations Court heard that the blast destroyed the factory and levelled nearly everything within a 100-metre radius.

In June 2010, the operators were found guilty and convicted of the offences on the basis that one of the proven defects in the factory equipment was causative of the explosion. Industrial Magistrate Ardlie found that the explosives company failed in its obligation to ensure the safety of its employees and failed to provide and maintain the plant in a safe condition. A second defendant, the responsible officer of a body corporate, was found to have failed to take reasonable steps to ensure compliance by the first defendant with its obligations under section 19(1) of the Occupational Health, Safety and Welfare Act 1986.

An appeal was lodged against both the conviction and the penalty. It was heard in 2011 and a judgement was delivered which, despite the convictions of both the company and the responsible officer for breaches of work health and safety laws still standing, ordered the fines arising from the original decision to be reduced. The fines were reduced from the near maximum amount of $95,000 each to $75,000 for the company and $60,000 for the responsible officer. That is a total of $45,000 for every human life that was lost.

What kind of message does that send to workers? What kind of message does it send to their families? If that example is not convincing, we would do well to consider the horrific workplace death of Daniel Madeley and the findings of the court in relation to it.

In 2004, Daniel was an 18-year-old apprentice toolmaker. At the time of his accident he was operating a horizontal borer at his Edwardstown workplace. The machine was 30 to 40 years old, manufactured in the Soviet Union, and featured no guarding or other safety devices. The only safety measure incorporated into the machine was the emergency stop button, which in fact did not operate any differently from the ordinary stop button.

Daniel Madeley was using this machine unsupervised. He had been trained in its operation by another apprentice. The loose-fitting dust coat Daniel was wearing, which was issued to him by his employer, suddenly became ensnared in a rotating spindle of the machine. In an instant, he was pulled in. To say simply that Daniel suffered horrific injuries is not sufficient. As he was viciously thrown around, every part of his body was brutalised by the machine. His brain bled severely and his spine was lacerated. He suffered multiple fractures of the ribs, significant bruising of the lungs and significant bleeding into the pleural spaces. There was bruising of the heart and kidneys, along with bruising and laceration of the liver and spleen. His arms and his legs were broken. Both of his feet were severed. The Coroner found that Daniel's direct cause of death was respiratory failure secondary to closed chest trauma.

The court heard that Daniel was a careful, even meticulous, worker. Findings indicated that Daniel's death was 'entirely preventable'. The magistrate's judgement said of the case:

This is not the worst I can envisage which might involve wilful disregard of warnings or near misses but in my view it is not much less culpable…In my view the defendant's failures put it at a level which demands a particularly high penalty.

That particularly high penalty was $72,000. In the Coroner's findings, you can read the following:

The penalty imposed upon Diemould of a fine of $72,000 was one-third of the cost of the replacement horizontal boring machine that was purchased by Diemould in August 2004. Thus, the penalty imposed was significantly less than the cost to Diemould of replacing the horizontal boring machine.

I do not suggest that an economic decision was ever made by Diemould that it would be cheaper to pay a fine in a prosecution under the Occupational Health, Safety and Welfare Act 1986 (the maximum penalty being $100,000) than invest in a new horizontal boring machine, the cost of which would be 230% higher than the maximum penalty available under the Act.

However, it might be considered a matter of public concern that in an operation such as Diemould's, the cost of acquiring safe plant and equipment far outweigh the likely penalty in a criminal prosecution.

How can we expect workplace safety to be taken seriously to the appropriate extent when a circumstance like this can occur? The penalties must be changed. In the absence of sufficiently compelling reasons to ensure safe workplaces, unscrupulous employers and careless people can cut corners essentially without fear of serious legal repercussion.

The overwhelming majority of employers and workplaces do the right thing, but we cannot let the recklessly negligent minority skate by on the supposition that if caught out in the event of a tragedy, they will only be subject to trivial penalties. A conscientious government should be making them rethink their recklessness and their negligence. We should be convincing them that it is worth their effort to do better, and that is the intent of this legislation.

The development of this bill has been informed by an extensive consultation process with the business community, with our unions and with health and safety professionals. Our government approached this consultation in good faith and has sincerely listened to the feedback from both the business community and unions. It was taken into consideration in the drafting of this bill.

It is important to mention that in our efforts to bring these reforms, we are not a pioneering jurisdiction. In fact, this bill brings South Australia into line with many other jurisdictions, including Western Australia, the Northern Territory, Queensland, Victoria and the ACT, all of which have introduced industrial manslaughter laws. The provisions of the bill have been drafted in a way that is consistent with the majority of other states and territories.

Commonwealth, state and territory work health and safety ministers have also come to agreement that industrial manslaughter will form part of the model for national laws. So we are far from operating on the fringe. These reforms are widely recognised as sensible and important. Every worker deserves to be able to access their right to come home safely after each shift. Tragic accidents will always happen, risks will continue to exist across our industrial landscape, and there will always be industries and occupations that have a higher level of risk typically associated with their activities.

I believe the appropriate way to address these realities is by strengthening our efforts to ensure that all employers and workplaces are strongly motivated to exercise all possible care in relation to workplace safety. It is also important to note in this debate that the overwhelming majority of workplaces and employers in South Australia are already habitually doing the right thing. If that were not the case, we would be seeing a much higher number of workplace fatalities each year.

All those who are doing the right thing now should not have any cause for concern in relation to this legislation, but this bill sends an important message to any South Australian employers and workplaces that take a reckless or grossly negligent approach to their workers' safety. These penalties will ensure that such employers are held to account in a way that is appropriate to the situation where a preventable workplace fatality occurs as a result of reckless or grossly negligent safety breaches.

This bill also recognises the unspeakably traumatic losses suffered by the families of South Australians who have been killed in the workplace. This legislation will mean that grieving families who have lost a loved one to a fatal workplace accident are no longer left to hope for a successful prosecution for the existing offence of manslaughter. Such prosecutions can be difficult when the death is not the direct result of one particular person's actions but, rather, a set of conditions or circumstances within the workplace.

The Attorney-General and many others have paid tribute to the long-time advocacy of Andrea Madeley and Pam Gurner-Hall. Both are people who have endured unspeakable loss as a result of workplace deaths. They have dedicated so much of themselves to fighting for change in this area of law so that fewer South Australian families have to suffer the unspeakable pain that they know all too well.

Twelve deaths per year is 12 too many. It is my view that we in this place have a moral obligation to take decisive measures to deter unsafe practices in workplaces. We must take action to strengthen accountability and put on notice enterprises that are reckless and grossly negligent in their failure to maintain safe workplace practices.

The Malinauskas Labor government understands that the laws of our state can better reflect community expectation and should reliably deliver appropriate justice for the victims of preventable deaths and their grieving families. Other jurisdictions have pressed ahead; it is now time for South Australia to take this necessary and meaningful step. I commend the bill to the house.

The Hon. D.G. PISONI (Unley) (11:41): I will just continue the remarks that the house kindly gave me leave to do so last time I was on my feet on this matter. I was in the process of raising concerns that—

The SPEAKER: Member for Unley, I am seeking advice from the Clerk in relation to whether you are able to make a contribution. Member for Unley, I am informed that the way for you to have made a contribution was to speak first. I have also sought advice from the Clerk as to whether I could permit you to speak on indulgence; I am advised that would not be a sensible course. It may be that there is another speaker we can turn to on the opposition's side.

I would be guided by the house. If there is no objection from the government, despite the advice I have received I am very, very reluctant to prevent the opposition from making a contribution in these circumstances. There is alternative advice from the Clerk that there might be a contribution in the third reading, but despite the advice—and I have received it and considered it carefully—I am nevertheless going to turn to the member for Unley.

The Hon. D.G. PISONI: Thank you, sir, for your indulgence. I was speaking to raise concerns that small businesses will have about overreach, if you like, with this legislation, these new penalties. It will be on very rare occasions—very rare occasions—when employers will be successfully prosecuted, but I know that many small businesses are concerned that there will be a lot more occasions when there will be attempts for prosecutions that will fall well short. Of course, that is enormous reputational damage for a small business, and costs in order to defend that. We are really talking about fighting over sheep stations here.

An overzealous prosecution—driven by an ideology or, alternatively, encouraged by a particular union—may very well see small businesses hauled before the courts, spending tens of thousands of dollars, if not hundreds of thousands, defending a case of industrial manslaughter to prevent the directors from ending up in jail, when not all the work has been done before that case is brought forward and it fails because there is simply not enough evidence that it was reckless or that it met the criteria here in the legislation for the prosecution to happen.

We know there is a very high bar in the legal system when it comes to any criminal offence. Because this is a new penalty that is coming into South Australia at a time of enormous industrial change at a federal level, that gives the union movement much more power to intervene in private business and to impose their will on private businesses, and I touched on that in the first half of my contribution last sitting week.

I think this is a just concern. We saw how badly the CFMEU behaved against people it took a dislike to (and that was at that time the Master Builders Association) not long after the election last year, an election in which the CFMEU played a significant role in rolling out very tacky and tasteless election posters—even putting a rat's body on the then Premier's head—as part of a very negative election campaign that the Labor Party claimed they had no control over. But they did, of course, take a $125,000 donation from the CFMEU, and the CFMEU behaved so badly after the election that they were forced by pure embarrassment to return that money to the CFMEU.

So when you are dealing with organisations like that, which under new federal laws will have much more opportunity to enter building sites, or other unions entering factory sites and non-union businesses, we may very well see zealous campaigns, simply driven by an expansion of or a desire to expand union membership, of a case being built by a union and presented to the appropriate authorities that could start a process that could end up in court or costing the proprietors of that business a lot of money to defend allegations or theories, rather than facts, that may have been discovered by the union in order to try to get an outcome under the new criminal penalties through the amended amendments we are discussing today.

This is something that I think has been overlooked. An area I think is very relevant, and I will have some questions about this during the committee process, is the use of medical marijuana and the difficulty in understanding the effects it has on impairment. I know that even ReturnToWorkSA pays for some of their WorkCover recipients to be on medical marijuana rather than opioids for reducing pain.

Of course, that is a significant issue when it comes to regular drug testing in some industries where drug testing is mandatory. What impact will that have if a so-called progressive employer, for example, says, 'I am a supporter of medical cannabis. If someone has been prescribed medical cannabis and they come up with a THC reading in the drug test that we do every morning, we know it's because of medical cannabis and we are going to let that go.' But then when that employee goes on to run over somebody with a forklift and kill them, where does that employer stand in that situation?

Working with SafeWork SA, working with the medical profession and making a decision based on the best evidence that is available, yet clearly that accident would probably not have happened if there were no impairment to that employee. That has not been addressed by any of the government speakers in this bill. The impact of medical marijuana, or any other new drug that might be introduced, that we are still learning the side effects of, being a contributing factor to a case was not addressed by the minister. I look forward to pursuing that further in the committee and I thank the Speaker for the ability to continue my remarks.

The SPEAKER: Before I call the minister, I have been referred to standing order 147, which states:

Member adjourning debate entitled to be heard first

The Member upon whose motion any debate is adjourned by the House is entitled to be heard first on the resumption of the debate. A Member who is granted leave to continue their remarks and who fails to continue immediately on the resumption of the debate may not speak again at any subsequent stage of the debate.

In any case, resolve the matter much more practically.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (11:51): You may wish to indicate, sir, that I am rising to close the debate.

The SPEAKER: To close the debate.

The Hon. S.E. CLOSE: I will sum up some responses to some of the matters that were raised in various contributions, but before doing so I thank people for their contributions and for participation in a respectful way and, of course, particularly for at least one of our members who has suffered a personal loss, having the courage to talk about that is always impressive and moving.

First of all, there were some comments about prosecution guidelines from the member for Colton that proceedings for industrial manslaughter should be reserved for the most egregious conduct. I am advised that this is absolutely the intention of this piece of legislation. The decision to commence prosecution is made in accordance with the Director of Public Prosecutions' Statement of Prosecution Policy and Guidelines.

In particular, the following factors must be taken into account before a prosecution is commenced: first, the existence of a prima facie case, that is, whether the evidence is sufficient to justify the institution of proceedings; second, a reasonable prospect of conviction, that is, an evaluation of the likely strength of the case when it is presented in court, taking into account such matters as the availability, competence and credibility of witnesses and their likely impression on the court or tribunal that will determine the matter; the admissibility of any confession or other evidence and any lines of defence available to the defendant.

The third is a public interest test. This may include consideration of the seriousness or conversely the triviality of the alleged offence or whether it is only of a technical nature; any mitigating or aggravating circumstances; the characteristics of the duty holder: any special infirmities, prior compliance history and background; the age of the alleged offence; the degree of culpability of the alleged offender; whether the prosecution would be perceived as counterproductive, that is by bringing the law into disrepute; the efficacy of any alternatives to prosecution; the prevalence of the alleged offence and the need for deterrence, both specific and general; and whether the alleged offence is of considerable public concern. This will not change with the introduction of the industrial manslaughter offence.

The next point raised was about the comparison between industrial manslaughter and common law. During the committee stage in the other place, the government was asked to explain how the thresholds for establishing industrial manslaughter and, in particular, the requirements to prove either recklessness or gross negligence compare with the requirements for establishing manslaughter under common law. There was some suggestion, based on comments made by the Law Society, that if industrial manslaughter is to reflect the common law requirements for manslaughter, then recklessness should not feature in the bill. The concern was that the inclusion of recklessness would lower the threshold of a criminal manslaughter charge.

Under the common law, there are two ways that manslaughter can be established: one is manslaughter by criminal negligence; another is manslaughter by unlawful and dangerous act. Manslaughter by criminal negligence under common law involves three elements: first, the accused's breach of a duty of care to a person through criminal negligence; second, that negligence caused the victim's death; and, third, the accused's act or acts were voluntary and deliberate.

The first element can be broken down into four issues or subelements: first, the accused owed the victim a duty of care; second, the accused breached that duty of care; third, a reasonable person in the situation of the accused would have appreciated that his or her actions would involve a high risk of death or grievous bodily harm; and fourth, the degree of breach constituted criminal negligence—that is, the act involved such a great falling short of the standard which a reasonable person would have exercised, and involved such a high risk that death or grievous bodily harm would follow, that the doing of the act merits criminal punishment.

An example of manslaughter by criminal negligence would be where the parent of a young child fails to provide necessary nutrition, hydration and/or medical care, resulting in the death of the child. There is no requirement that the parent intended the tragic result. The focus instead is on the standard of care that would have been exercised by a reasonable person and the risk of death or grievous bodily harm arising from the negligent acts or omissions.

The requirements for industrial manslaughter by gross negligence in the bill substantially align with the elements of manslaughter by criminal negligence under common law. Industrial manslaughter by gross negligence requires proof that the breaches of duty with respect to health and safety involve such a falling short of the standard of care that a reasonable person would exercise in the circumstances, and such a high risk of causing death or serious injury or illness, that the conduct merits criminal punishment.

The other form of manslaughter under common law is manslaughter by unlawful and dangerous act, which consists of four elements: first, the accused caused the victim's death; second, the relevant act was voluntary and deliberate; third, the relevant act was unlawful; and, fourth, the relevant act was dangerous. An act is dangerous for the purpose of the common law offence if it exposes a person to an appreciable risk of serious injury. It is necessary to prove that a reasonable person in the position of the accused would have realised that they were exposing the other person to an appreciable risk of serious injury. An appreciable risk means more than a remote or mere possibility of serious injury.

An example of unlawful and dangerous act manslaughter is where an accused intentionally punches a victim in the head, causing the death of the victim. The accused does not need to intend the death of the victim or even appreciate the risk that death could result. In such a case, the critical question will be: would a reasonable person in the position of the accused have realised that in punching the victim in the head they were exposing the victim to an appreciable risk of serious injury?

The requirements to establish reckless industrial manslaughter in the bill are broadly in line with the requirements to establish the common law offence of manslaughter by unlawful and dangerous act. Division 5 of part 2 of the Work Health and Safety Act 2012 prescribes offences for failing to comply with a health and safety duty under the act, hence the requirements in new section 30A(1)(a) and (b) of the bill mirror the third element of manslaughter by unlawful and dangerous act: that the relevant act was unlawful.

Further, the concept of dangerousness for the purposes of unlawful and dangerous act manslaughter is similar to that of recklessness in the bill, with some key differences. Recklessness will only be established if the person is aware of a substantial risk that death or serious injury or illness will happen and, having regard to the circumstances known to the person, it was unjustifiable to take the risk. This requires actual or substantive knowledge of the substantial risk of death or serious injury and illness.

This is arguably a more onerous requirement than the objective reasonable person test under the common law offence. Further, to prove recklessness in industrial manslaughter, the accused must be aware of a substantial risk rather than a mere appreciable risk of death or serious injury or illness. Again, this is a higher threshold than under the common law.

The position adopted in the bill broadly reflects the common law position. For manslaughter by criminal negligence, the level of risk required to establish criminal negligence is such a high risk that death or grievous bodily harm would follow. For manslaughter by unlawful and dangerous act, an act is dangerous if it exposes a person to an appreciable risk of serious injury. Neither form of common law manslaughter is limited to a degree of risk of death alone.

Changes made to the draft bill in response to consultation: in response to some questions taken on notice in the other place, honourable members asked about changes made to the bill during the consultation process. I can advise that between the two consultation drafts of this bill a number of changes were made in response to stakeholder feedback.

Those included confining the alternative verdict provisions only to proceedings commenced within the same statute of limitations as the lower level offence; including a 'gross negligence' standard for category 1 offences; reflecting a threshold of 'death or serious injury or illness' to more closely reflect the common law of manslaughter; and inserting a definition of recklessness for additional clarity. Otherwise, I can confirm that all drafts of the bill included a threshold of both negligence and gross recklessness, consistent with the recommendations of the Boland review.

Resourcing of SafeWork SA: finally, the member for Colton in his contribution raised concerns that the bill is not coupled with more resourcing for SafeWork SA. Let me say this: the resourcing of our health and safety regulator is an issue on which the opposition has zero credibility given its appalling record in government. When the member for Colton reflects on the resourcing of our regulator, perhaps he should consider the four years of deliberate decline and neglect enforced upon SafeWork SA during his own party's government.

The Marshall Liberal government oversaw the most dramatic reduction in the capability of our health and safety regulator in its history. From 2018 until the 2021-22 budget, SafeWork's savings target was continually increased and, by then, totalled $7.6 million. This forced SafeWork SA to reduce FTEs by 35, and this meant the loss of dozens of experienced staff members dedicated to education, training and prevention of workplace injuries.

In comparison, we are making record investments in SafeWork SA to rebuild its capability from the parlous state in which it was left by the former Liberal government. Funding for SafeWork SA has increased by nearly $4.2 million this financial year, including extra funding for new investigators and inspectors, a complex cases unit to deal with matters like industrial manslaughter, a family liaison officer to support families of victims of workplace accidents and additional training and support positions to help educate businesses about work health and safety before accidents or injuries occur.

SafeWork SA is undergoing a significant recruitment drive to fill vacant positions within its inspectorate. There are currently 184 budgeted positions across the agency, 115 of those in the Compliance and Enforcement Directorate; 32 staff have been recruited in the last six months. Recruitment is ongoing to fill an additional 16 vacancies in the Compliance and Enforcement Directorate.

We have also implemented significant reforms following the independent review of SafeWork SA to build its capability. That includes the establishment of the SafeWork Advisory Committee so that the regulator's leadership can hear directly from representatives of the business community. We are very pleased to have organisations like Business SA, the Master Builders Association, Ai Group and the Motor Trade Association working as part of that committee to build stronger relationships between business and the regulator to improve health and safety. These efforts to build the capability of the regulator are in stark contrast to the approach of the former Liberal government. With those clarifying notes, I will move that the bill be read a second time.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr COWDREY: I have some introductory questions in regard to the consultation on the bill. If the minister could please provide us a list—as I understand it with this particular bill, and I understand it to be standard practice with IR-related changes, there have been a number of drafts for comment that have gone out to the industry groups in regard to shaping the legislation, coming back with comments.

Are you able to provide us with the details of that consultation—the number of drafts for comment in regard to this bill that were provided to industry groups and the number of responses that were received in regard to each of those rounds of consultation? Also, are you able to provide us with the names of both those groups that responded to the initial consultation and those that were involved in the subsequent rounds of the drafts that were put out for comment?

The Hon. S.E. CLOSE: There were two rounds of consultation, so two versions, the second of which is the one that is before us. I will note that prior to the first draft going out, there was a discussion paper and there were round tables with businesses and unions in September 2022. There was then the first consultation draft, which was consulted on between November 2022 and February 2023.

The organisations that were consulted with were Australian Hotels Association, Ai Group, Australian Institute of Health & Safety, Australian Minerals and Energy Council, Business SA, Civil Contractors Federation, Housing Industry Association, Law Society of South Australia, Master Builders Association, Motor Trade Association, Self Insurers of South Australia, SA Wine Industry Association, Specialist Contractors Association, SA Unions and Voice of Industrial Death.

In the second round, when a revised draft was sent around, that occurred between April 2023 and May 2023. The organisations that were consulted with were Business SA, Housing Industry Association, SA Wine Industry Association, Apprentice Employment Network, Ambulance Employees Association, CFMEU, Ai Group, Law Society, Motor Trade Association, Self Insurers of South Australia, Transport Workers' Union and SA Unions. It was then introduced on 6 May this year.

Mr COWDREY: Are you able to confirm that it is standard practice for the government to provide a draft for comment in regard to IR-related changes? Also, in regard to the last question and the answer that was given by the minister, you referenced that consultation was 'undertaken with'. Was the draft distributed to a wider group, and those were the groups where a response was solicited from them? Can you confirm? If not, my assumption is that these were the groups that responded to the distribution. Are you able to confirm the distribution list in terms of who it was provided to and also the question of standard practice around industrial relations changes and the provision of a draft for consultation?

The Hon. S.E. CLOSE: Yes, it is standard practice to put out a draft bill for consultation. The bill was made available to the public through the Attorney-General's website, so it was broadly available to anyone who sought it. Indeed, the organisations I have read out are those that responded to each of those rounds.

Mr COWDREY: I might go back briefly to one of the comments the minister made in her closing remarks on the second reading. The opposition, in our second reading contributions, made the point about bringing charges or allegations of industrial manslaughter only in the most significant of circumstances. Your response was that there was a framework of decision points that needed to be addressed by the DPP and others involved in the process before taking the decision to charge somebody with the offence of industrial manslaughter.

If the minister is so confident in the process that is involved in that decision, then why—in the upper house, where the amendments were put to remove the alternate verdict framework that would allow and does allow, under the current draft before us at the moment, a trier of fact to reduce an industrial manslaughter charge to a category 3 offence, which is a significant difference in both penalty and potential irreparable harm to a business by way of media or otherwise, or public standing—is the government intent on reducing the alternate verdict framework available to a category 3 offence, if it is so confident in its decision-making process and its ability to bring forward these charges in only the most significant of circumstances?

The Hon. S.E. CLOSE: Regarding the inclusion of alternative verdicts, an alternative verdict of guilt for a category 1, 2 or 3 offence will be available if the trier of fact is not satisfied that a person is guilty of industrial manslaughter but is satisfied that the person is guilty of a lower tier offence. The bill clarifies that alternative verdicts are only available if an industrial manslaughter prosecution is brought within the same limitation period that applies to a lower category offence. If an industrial manslaughter prosecution is brought after the expiry of that limitation period, no alternative verdict will be available, which is the same provision that applies in the Northern Territory, with the exception of category 3 offences.

The government notes comments from the business community stating that this provision may be prosecuted as a matter of course, knowing that a lesser verdict can later be found. This is not the intention of the provision; instead, it is ensuring that the trier of fact can make this decision based on the information before them. An alternative verdict can only be made if the court is satisfied to the criminal standard that a person is guilty of the lower level offence, based on all the evidence available before the tribunal.

The answer to the substance of the question is that this provides an alternative for the trier of fact, the judge, and that while there is a stringent process of determining the level of seriousness, the likelihood of prosecution, the lack of successful prosecution, the lack of triviality and the other factors that I read out, while all of that is true of any prosecution the Director of Public Prosecutions brings forward, it does not mean a 100 per cent certainty of what occurs within a court. It is important that a trier of fact has available to him or her the alternatives in order for the most fulsome response to the incident that has occurred.

The Hon. D.G. PISONI: In explaining my question, minister, many of these industries that would be considered as being dangerous where reckless behaviour could lead to a serious work injury tend to be masculine businesses, and the owners are men who are likely to be executive directors but their wives maybe non-executive directors. Will non-executive directors—that is, partners—be also subject to these penalties if directors are charged with and convicted of industrial manslaughter? In other words, a silent partner, if you like, where a married couple are both directors of the business but only one of those directors is actively involved in managing and running that business.

The question is: will the non-executive director, the director who may have an ownership or a directorship for family reasons, or for whatever reason they have decided to structure the business in that way, also be subject to the penalties?

The Hon. S.E. CLOSE: That will depend on the duties of the directors and their responsibilities, but if they are indeed an equal partnership then it would be likely that they would be deemed to have that duty.

The Hon. D.G. PISONI: Minister, are you saying that if they are an equal partnership in ownership but the decisions are made entirely by the working partner—the other director may be in full-time caring responsibilities with a young family and does not attend directors' meetings, there may only be two directors of the company, the husband and the wife, or two wives or two husbands but one of them has the caring responsibilities—in that situation would the caring partner who has equal ownership of the business and equal directorship of the business also be charged or convicted under this legislation?

The Hon. S.E. CLOSE: In those circumstances it really depends on the make-up of the business, and the management and control of each of the directors would be taken into account.

The Hon. D.G. PISONI: Just to be clear, could a silent partner be subject to equal liability as a managing partner under this legislation under these penalties?

The Hon. S.E. CLOSE: Again, it is difficult to talk in too many abstract hypotheticals. SafeWork SA forms a judgement based on the control and the management responsibilities of those involved. So while one partner might not have any control over workers—not be actively involved in that—they might well have financial control over the amount of maintenance expenditure that there is in the company. So it would depend on the circumstances of the death and it would depend on the nature of the involvement of each partner, and that is going to vary widely, so it is impossible to give a general statement that covers all circumstances.

Mr McBRIDE: My question to the minister is in regard to this new act in its intentions. Do you think it is fair to reasonably suspect that large corporate businesses with directors at the top are going to be as scrutinised and as vulnerable as small businesses with a couple of directors, as the previous member just asked?

The Hon. S.E. CLOSE: The short answer is yes. They would be treated in the same way. The question is what control a person has over the business and therefore liability if something is not done or, alternatively, done that ought not have been.

Mr McBRIDE: Thank you for the answer, and I suspected that that would be the answer. Would the minister agree then that, with the structures of large corporations in Australia—but we are talking here about South Australia—and the complexity of layers between the chairman and the directors of a large company right down to the shop floor—and I will give an example. I will not even name the business. There was a business here in South Australia that had some deaths in it in a sector where there were blue-collar tradespeople cooked alive in a boiler because safety strategies were not met.

The question then, minister, on that terrible example I am giving you, is about these large corporations that have shopfloor managers, HR representatives and further sectors of their business broken up, split up—you are construction, you are mining, you are HR, you are OHS, and so forth, for example—and the top tier, the directors on the most money, the most money out of anyone in the company nearly, has all these levels before it gets to them.

My question then that I am explaining to you, as the member for Unley asked, is about the mum-and-dad directors of a small business that does not have these layers. It does not have the OHS layer and shop floor; maybe it does not even have a shop steward or a manager as such who might sit underneath the two owners. It would be fair to assume that the large end of town could be very much protected here by what we are doing, yet the small end of town is very much vulnerable here.

The Hon. S.E. CLOSE: It is certainly not the intention to have a disproportionate impact. Someone who is at the top or near the top of an organisation inevitably has more power and more decision-making and more responsibility, which you cannot devolve away. Particularly as you get to the top, you have the financial responsibility on top for where investments do or do not occur. That is not possible to simply devolve away and excuse yourself.

Clause passed.

Clause 2.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–1]—

Page 2, lines 6 and 7—Delete clause 2 and substitute:

2—Commencement

(1) Subject to subsection (2), this Act comes into operation on the day on which it is assented to by the Governor.

(2) Part 2 of this Act (other than section 7(2) and (3)) comes into operation on a day to be fixed by proclamation.

I have four amendments, and I will speak to them just once, as they form a package. If I am able to move them all together that would be useful—

The CHAIR: We can only do one at a time because they are on different clauses.

The Hon. S.E. CLOSE: —but if not then I will simply speak once and allow that to stand for the others as I move them.

The CHAIR: I assume they are consequential amendments?

The Hon. S.E. CLOSE: They are essentially a single package, yes, that is right. The government amendments do not affect the substantive operation of the proposed industrial manslaughter offence. These amendments are purely procedural and deal with the interaction between the offences under the Work Health and Safety Act and the Criminal Procedure Act 1921.

In summary, the effect of these amendments is that proceedings for an industrial manslaughter offence will follow the same criminal procedure as other major indictable offences. The amendment expressly states that the offence of industrial manslaughter is a major indictable offence and that committal proceedings for the offence must be commenced in the Magistrates Court. This is the same procedure for major indictable offences under other acts, such as the Criminal Law Consolidation Act 1935, with the procedures including for joinder and separation of charges in turn set out in the Criminal Procedure Act 1921.

The amendment also allows for instances where a summary offence or minor indictable offence under the Work Health and Safety Act 2012, such as category 1, 2 or 3 offences, is joined in information with a major indictable offence, that these also proceed in accordance with the ordinary procedure applicable to the major indictable offence. A major indictable offence in this instance may be the offence of industrial manslaughter or a major indictable offence under another act. This is to ensure that matters that are charged on the same information can be dealt with in the same way that is applicable to major indictable offences under the Criminal Procedure Act 1921; that is, you follow the criminal procedure applicable to the most serious offence on the information.

Mr COWDREY: I have a question in regard to the first amendment, which is largely around the commencement of the bill. It essentially stipulates that sections of the bill—clauses (1) and (2)—will commence on assent and that the remainder of the bill commences after that. I am keen to understand the time frame the government is envisaging that this comes into operation for the remainder of the bill.

The Hon. S.E. CLOSE: It is intended to be six months after passing.

The Hon. D.G. PISONI: On the commencement of the act, once the act has commenced what recourse is available for an employer or a business owner who may be dragged through the court process, named as somebody who has been charged, and then that process collapses and the prosecution withdraws the charges and the case goes no further? Is there a financial recourse or a reputational recourse available to the employer?

The Hon. S.E. CLOSE: There are not any provisions under this act, no.

Amendment carried.

Mr COWDREY: In the minister's second reading speech in the other place, he touched upon the commonwealth government's progress in regard to this issue and their desire to introduce similar legislation during their current term in the federal parliament. Are you able to provide details on the progress and the expected time line in terms of a federal bill coming to their house and, further to that, what the government's expectation is in terms of whether this legislation that we are introducing today be repealed at a later point, that the federal legislation will override what is being done here?

Are you able to provide us an understanding of whether this is just a short-term stopgap before this disappears altogether? Is there going to be a delineation in terms of the federal and state jurisdiction in regard to this issue?

The Hon. S.E. CLOSE: We are not sure where the commonwealth's legislation is up to. We have no public information on that and so we will have to watch that on the news together. In any case, there was an agreement by all work health and safety ministers that each jurisdiction would make their own legislation for their own jurisdiction. The commonwealth will cover commonwealth workers who are not covered by our legislation.

Mr COWDREY: I do hope that the Deputy Premier will be given some sort of notice as to a bill of this nature coming to the federal parliament, but one should never assume. In regard to what has just been discussed, has there been any discussion at the federal level or in the ministers' meetings in regard to the way that our bill is set out? Obviously, we have acknowledged over the course of the debate to this point the fact that there are substantial differences across the majority, despite the agreement that there should be harmonised legislation.

We all understand that harmonisation at the federal level, whether that be in taxation or any other forum—this being one of them—is much better in theory than it is necessarily in practical demonstration. Is there an expectation that we could be back here in a period of time effectively replicating what could be a federal law to ensure that there is, to a degree, some level of harmonisation between what the federal government land on, whether that be in regard to the threshold issue of reckless or just gross negligence, whether that be in regard to who is captured by these laws?

Again not pre-empting what the federal government are going to proceed with, is it the intent of this state government to ensure that, as close as practicable, by way of definition those captured within the act in terms of threshold issues, in terms of the substantive elements that come together to form this issue, that be as best replicated when and if the federal legislation comes down?

The Hon. S.E. CLOSE: No, my understanding is that the harmonisation is in fact simply that there would be industrial manslaughter legislation in each jurisdiction, rather than the detail of the model of how it is done. There is no expectation at present that this legislation would change as a result of another jurisdiction's decisions, including the commonwealth.

Mr COWDREY: Earlier, you mentioned that we have not addressed this through the process to this point of those who are captured by federal legislation, as opposed to state legislation. One of the things I am keen to understand is who is not actually captured at the moment by the legislation as it stands in South Australia. Could you walk us through whether that be issues of whether the company is trading on federal land as opposed to state land, or whether there is a delineation in terms of public sector versus private sector. Can you give us as best you can an encapsulation of who currently will not be captured by the South Australian legislation when this law passes and is enacted?

The Hon. S.E. CLOSE: Essentially, it is the federal public sector and any businesses that are covered currently by Comcare, which is the commonwealth equivalent.

Clause as amended passed.

Clause 3.

The Hon. D.G. PISONI: This question relates to the definitions. Will these penalties be imposed on an employer who enables an employee who fails a drug test because they are prescribed with medical cannabis to continue in the workplace? The reason I ask the question is that the committee looking into the use of medical cannabis was told by ReturnToWork a few weeks ago that they actually do pay for their clients to participate in medical cannabis programs for pain relief. We have heard from witnesses who have previously lost their jobs because they were prescribed medical cannabis and could not pass drugs tests. There is an argument about measuring the measurement of impairment with medical cannabis. Not all medical cannabis has THC, but some medical cannabis does.

We know that alcohol impairs, and there is an accepted level of .05 with alcohol, but no such measure has been developed, from what we know so far, about the use of medical cannabis in supporting people for various reasons, mainly pain relief. Options other than medical cannabis are some of the many highly addictive opioid drugs that are also prescribed.

My question is: an employer who participates in a medical cannabis program that is sponsored by ReturnToWork or as prescribed by a doctor, and who ignores a THC reading from someone who has presented a prescription and a note from their doctor to say that they are on medical cannabis to control pain, which enables them to get back to work, if that person does happen to be impaired—and the current impairment as I understand it for driving is any trace of THC is enough for you to lose your driver's licence—is that employer liable?

If the employer is working with ReturnToWork and ReturnToWork is paying for the treatment, they are obviously engaging that worker to get back into the workforce with this treatment, but if that worker causes an accident that kills them or somebody else, who is liable for penalty under such a situation?

The Hon. S.E. CLOSE: In those circumstances, the obligation on the employer is to either eliminate or manage risk. A doctor writing to say that someone is on a particular medication that may have this effect is something that an employer needs to take account of in allocating duties to that person. In many ways, it is a question of the reasonableness of the judgement that is made, as I referred to in the second reading reply—that question of whether a reasonable person would make that decision that it was appropriate for that person, in those circumstances with all the information known, to get the employee to do that particular activity.

It is very contextual. The fact of being on a prescription is a piece of information, but it is how that affects the individual in their performance of particular tasks, and whether that represents serious risk, that is the heart of the question for this legislation.

The Hon. D.G. PISONI: What happens if the employer has a different view to ReturnToWork? For example, what if ReturnToWork say, 'We believe that this duty should be done,' and as an employer you are saying, 'I don't agree, I'm not prepared to take the risk, I don't want to go to jail if something goes wrong,' and there are no other duties for that employee and that employee is then no longer able to work at that business? How is that resolved?

The Hon. S.E. CLOSE: This really belongs in the same category as any challenge between an employer and ReturnToWork. ReturnToWork may form a view about the appropriateness of an employee for an activity. The employer still has obligations to ReturnToWork but also to the safety of their employees and the functioning of their business. There will be a process that resolves those disputes, but none of that is captured in this change to this legislation.

The Hon. D.G. PISONI: Has ReturnToWorkSA advised the minister or the government about any risk to programs that it currently has in place for easing employees back into the workforce because of an increase in risk-averse practices by employers who would be frightened of going to prison if they continued the progressive, cooperative work they have been doing with ReturnToWorkSA under this new legislation and the worst happened? Has the government received any advice on what WorkCover's attitude to that would be?

I do know that challenging WorkCover can also be an expensive process, and there are consequences for attempting to remove an employee from your payroll if they are receiving benefits from ReturnToWork. I can just see situations where smaller employers in particular do not have the flexibility of being able to move somebody from a job they have been doing for years, or even for decades, into a brand-new job. The business is just not big enough to be able to absorb something like that. They may very well be happy to take a financial risk in working with ReturnToWork but certainly not happy to take a risk that could see them incarcerated in that process.

Minister, I am asking whether there has been any advice or correspondence or any request for advice to or from ReturnToWork work about how these types of situations may be addressed.

The Hon. S.E. CLOSE: We are not aware of any advice that has come from ReturnToWork about that matter.

Mr TEAGUE: We will get to how it operates in clause 4 more particularly, but I am really just concerned about the definition and purpose of 'reckless' for the purposes of this new offence. By reference to how it is applied in clause 4, I understood the Acting Premier's analogy to common law manslaughter earlier. You have, on the one hand, manslaughter by an unlawful or dangerous act and, on the other hand, by criminal negligence.

The Acting Premier spelled out the three elements of criminal negligence and the four elements, I think, within the first element, and that more or less is said to equate to gross negligence for the purposes of that test. Then I understood the Acting Premier to equate the 'unlawful or dangerous act' side of involuntary manslaughter at common law to something that might resemble recklessness.

Is it not, rather, that at common law recklessness, or the degree of carelessness that might go to constituting criminal negligence, is really more where recklessness has a role to play and that at common law we are talking about unlawful or dangerous action in terms of, generally speaking, a criminal offence of some sort falling short of intending to cause death or grievous bodily harm—generally, assault. One-punch attacks have been cited as a good example of where death might follow; another is perhaps in circumstances of driving offences.

I think another one of those old authorities that is often cited as the circumstances of the dangerous act is where consent is no longer necessary, death ensues. I forget the name of the authority now, but where you have two people administering drugs by consent to one another and one of them dies, you have there the dangerous conduct that leads to the death and the possibility to make out the offence. In any event, here—and we will get to it in clause 4—are we not replacing the unlawful or dangerous act with the breach of a person's health and safety duty?

That is the relevant threshold that is now being introduced, and then we go on to say that breach was done with what is now described as gross negligence and recklessness. I consider there is real force in the amendment that we might see moved by the member for Mount Gambier in terms of saying the test is akin to criminal negligence if it is gross negligence. Alright, we would have that argument or consider why the departure from the common law in that respect, but why the need to include recklessness?

The question might be: is it not really relevantly that the intent here is to bring into an industrial framework a heightened level of seriousness associated with breach of an existing health and safety duty? That is the real core of what is being done here. Alright, we have that argument, but why then leave these two alternatives: gross negligence or recklessness? Maybe to wrap up, and this might complete my questions for clause 3, why not leave us with a definition of criminal negligence rather than gross negligence and, if so, why not simply refer to the common law test for criminal negligence for these purposes?

The Hon. S.E. CLOSE: I am advised that negligence is already included as a test and, indeed, recklessness is part of the consideration of category 1 in the existing hierarchy, so that is why they have both been included in this amendment.

Mr TEAGUE: Perhaps I might repeat, as I realise I did wrap up what might have been regarded as a number of questions in one. Why not adopt the test of criminal negligence, either by reference to the common law or as defined? Why the departure from criminal negligence to gross negligence for this purpose?

The Hon. S.E. CLOSE: I appreciate that the member remains concerned about the use of the term 'gross' rather than 'criminal', but I did spend quite a significant amount of time in the close of second reading explaining the government's position on the way in which the definition in this piece of legislation aligns with common law. It probably does not bear repeating that it may be that it remains a point of difference between the two parties. I have no more to add than I said in the close of second reading.

Mr TEAGUE: We appreciate that. It might be that there is a point of difference. It might be that there is a deliberate intent to retain the civil words on the one hand, or adopt the same words as the civil words, because we are now going to move this offence into what has previously been civil legislation. The question might all the more be put that if, as we are, now introducing a serious criminal offence, a major indictable offence, into the Work Health and Safety Act, then why not draw the distinction, to the extent there is one, and say that if there is going to be an industrial manslaughter offence, criminal negligence needs to be the test, and all the more harmonise with the common law test of ordinary manslaughter, or is there a deliberate endeavour here to adopt the same formulation of gross negligence as applied previously in a civil context?

The Hon. S.E. CLOSE: Obviously, I am not privy to all the discussions that occurred in the drafting detail of the preparation of this bill, but it is the case that, although all the jurisdictions have not agreed to harmonise to have exactly the same legislation, nonetheless the model does talk about gross negligence, and that is one of the reasons, presumably, that that was decided on.

Progress reported; committee to sit again.

Sitting suspended from 12:58 to 14:00.

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