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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Work Health and Safety (Industrial Manslaughter) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 3.

Mr COWDREY: In regard to clause 3, particularly if we touch on gross negligence and 'reckless', just for the benefit of the committee, I think it would be helpful perhaps to have a brief discussion. I will probably touch on this issue again in relation to clause 4. In the specific instance of GTOs, there is obviously a disconnect in terms of the direct relationship between, for lack of a better term, the statutory employer, legislative employer or contractual employer as opposed to the organisation the employee is sitting within.

I am keen to understand from the government's perspective what the requirements are in regard to 'reckless', in particular. In a practical sense, what would she envision as the steps that a GTO would need to take, as apparent or different from what they are currently doing, to meet that obligation of maintaining above that threshold of being reckless in regard to their employees? Obviously, they undertake specific inspections of host organisations when that placement is made at the moment. From time to time, they will provide an inspection of that. I ask this in terms of what the reasonable expectation is for a GTO to ensure the safety of their worker who is not working on their site.

The Hon. S.E. CLOSE: I am advised we would not expect there to be any change from their current duties and their current relationship between the GTO and the host.

Mr COWDREY: So no change whatsoever in terms of what is expected of them under law. There will be no need for any sort of change in the way that training is done, there is no further guidance that is going to be required to be provided to GTOs, because the government has said to GTO providers that there was going to be additional work done by the government that there would be a fact sheet provided to them on steps that they would need to take in the GTO sector to ensure that there was compliance within that group. So I am now confused that there has been messaging put forward by the government that there was going to need to be more work and more specific advice provided to the GTO sector in regard to the changes that are coming on the back of this bill.

The Hon. S.E. CLOSE: I am advised the government identified through this process that there is currently no guidance provided to GTOs on exercising their duties. So, while the duties themselves do not change, it was identified as being a useful action for the government to provide that clarification about what those duties are, which has hitherto not occurred.

Mr COWDREY: Sorry, that has or has not occurred?

The Hon. S.E. CLOSE: Which has not occurred prior to this legislation, so it will now occur because it is regarded as something useful for the GTOs. What that actually will be is currently being prepared.

Clause passed.

Clause 4.

Mr BELL: I propose an amendment and therefore I move:

Amendment No 1 [Bell–1]—

Page 3, lines 12 and 13 [clause 4, inserted section 30A(1)]—Delete '(being a person conducting a business or undertaking or an officer of a person conducting a business or undertaking)'

The reason for that is that a worker of a person conducting a business or undertaking needs to be included in this 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 also 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 of 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 safety procedures or processes. It is my position that this bill should therefore not only be confined to a PCBU or an officer of a PCBU but also a worker who performs a grossly negligent act in the workplace whose conduct subsequently results in the death of another employee in the workplace.

The ACTING CHAIR (Mr Brown): Member for Mount Gambier, you may wish to move all your amendments at the same time or you can do them individually. It is your choice.

Mr BELL: I am happy to move them all at the same time. Accordingly, I also move:

Amendment No 2 [Bell–1]—

Page 3, lines 19 to 22 [clause 4, inserted section 30A(1)(d)]—Delete paragraph (d) and substitute:

(d) the person is grossly negligent as to the risk to an individual of death or serious injury or illness.

Amendment No 3 [Bell–1]—

Page 3, lines 24 to 26 [clause 4, inserted section 30A(1), penalty provision, (a)]—Delete 'as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking'

The ACTING CHAIR (Mr Brown): You may speak to amendments Nos 2 and 3 if you like. No? Minister.

The Hon. S.E. CLOSE: I indicate the government will be opposing this amendment, and I am speaking initially to amendment No. 1 [Bell-1]. That extends the offence of industrial manslaughter to a person, meaning that individual workers could be charged with the offence. The offence as proposed by the government is limited to persons conducting a business or an undertaking (PCBUs) and officers of a PCBU. That is consistent with every other industrial manslaughter offence in Australia, including the bill recently introduced to the commonwealth parliament.

This amendment would result in South Australia being inconsistent with every other jurisdiction in Australia. Workers can still be prosecuted for breaching their existing duties under the WHS Act. Given that the member has moved his second amendment also, being amendment No. 2 [Bell-1], I will also indicate that the government opposes this amendment. The effect of this amendment is to remove the threshold of reckless conduct from the offence. This would be removing an already existing standard used to the highest category of offences—category 1 in the Work Health and Safety Act—along with the modelled WHS laws.

As advised during the second reading stage, the elements of gross negligence and recklessness in the bill are deliberately designed to mirror the elements of common law manslaughter. By removing recklessness as a standard, it effectively allows for a worker to be killed through an act where there is an awareness of a substantial risk that death or serious injury or illness will happen. When an employer's reckless actions result in the death of a worker that should be a crime. I gather, also, that there is a consequential amendment that has been moved at the same time, but I will not need to speak to that in addition.

The ACTING CHAIR (Mr Brown): Member for Mount Gambier, I am cognisant that you indicated that you wished to move all your amendments at the same time and then did not speak to amendments Nos 2 or 3. Did you wish to say anything about amendments Nos 2 and 3?

Mr BELL: I do. Thank you, Acting Chair, for that. The reason for 'recklessness' being combined with 'grossly negligent' is that recklessness is defined under a category 1 offence under section 31(1) of the Work Health and Safety Act. Reckless conduct is a lower threshold than gross negligence, and therefore the current wording of new section 30A(1)(d) of the amendment does create an inconsistency around this.

By combining the two paragraphs that the government has put forward in this bill, what it does is go to the higher threshold of grossly negligent. In a way, these are very serious charges and consequences for an employer and are just making sure that we have a high bar to achieve before employers subject to this again are fully aware and indicating that there is existing occupational health and safety legislation that is currently being used. We are talking about major indictable offences here, making sure that does marry up with common law standards and thresholds that also need to be met for a major indictable offence.

The ACTING CHAIR (Mr Brown): For the sake of clarity, I might ask if anyone wishes to make a contribution about the member for Mount Gambier's amendments first. Does anyone wish to speak about the amendments? Yes, member for Heysen.

Mr TEAGUE: Just on the point of principle, and I hear the Acting Premier in terms of an indication of opposition to amendment No. 1 [Bell-1] to start with. I think we have addressed in some ways the effect of amendment No. 2 [Bell-1], and we will come back to that. Just in terms of principle, the notion of including a worker for these purposes sort of highlights, I suppose, the change that is being made in terms of the workplace relationship in that if there is an intent here to mirror the criminal law in terms of common law manslaughter, and the test that is to be applied in terms of the conduct in breach is a person who has a health and safety duty and they engage in conduct that breaches that duty, then the question is then: why in principle should the provision not apply to any such person who has such a duty?

The Hon. S.E. CLOSE: Workers are in a different category. They can be held to account for their own actions but cannot be held responsible for the decisions made for a business.

Mr TEAGUE: Maybe I am a bit slow understanding it, so I might be repeating. Is that in a way to say that the worker in such dire circumstances might find themselves capable of responding to a charge of common law manslaughter in a workplace if their conduct is capable of constituting the offence of common law manslaughter for involuntary manslaughter that happens to be in a workplace? And so we rely on the common law test of manslaughter for the purposes of a worker being charged with an offence, and yet there is a considerably lower bar that there is to be then: this is a means by which a person, including a corporate person, can find themselves liable for this new offence.

It just begs the question: why, if the seriousness of the conduct is analogous, we are left in circumstances where we have a considerably different test applying on the one hand to a worker who is capable of having a duty and a person conducting a business, including a corporate person, who is capable of having the same duty? One will be prosecuted via this process now. The worker will be capable of responding to a charge under the common law as they always have been. Is that a correct statement of the circumstances?

The Hon. S.E. CLOSE: A worker can still be prosecuted under the act—category 1 is the highest level—but they are not able under this proposed bill to be prosecuted for industrial manslaughter because they are not a decision maker in the business.

Mr COWDREY: I just wish to make comment on the amendments, and I wish to outline that the opposition will be supporting the amendments. As has probably been noted, they are similar in construction to those moved by the opposition in the other place, and I think that the minister just outlined one of the fundamental differences in interpretation between the opposition and the government in this regard.

This is a stepping away in a significant sense both by way of threshold penalty and general view of the workplace that has historically held, we believe, South Australia in good stead in terms of a broad structure of workplace relations here in South Australia, the very principles of mutual obligation within the workplace. These are the fundamental issues that perhaps we are going to disagree on for a period of time. I outline that we will be supporting the amendments standing in the member for Mount Gambier's name.

The committee divided on the amendments:

Ayes 13

Noes 22

Majority 9

AYES

Bell, T.S. (teller) Cowdrey, M.J. Ellis, F.J.
Gardner, J.A.W. McBride, P.N. Patterson, S.J.R.
Pederick, A.S. Pisoni, D.G. Pratt, P.K.
Tarzia, V.A. Teague, J.B. Telfer, S.J.
Whetstone, T.J.

NOES

Andrews, S.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Champion, N.D. Clancy, N.P.
Close, S.E. Cook, N.F. Fulbrook, J.P.
Hildyard, K.A. Hood, L.P. Hughes, E.J.
Hutchesson, C.L. Michaels, A. Odenwalder, L.K. (teller)
Pearce, R.K. Piccolo, A. Picton, C.J.
Savvas, O.M. Szakacs, J.K. Thompson, E.L.
Wortley, D.J.

PAIRS

Basham, D.K.B. Brock, G.G. Speirs, D.J.
Malinauskas, P.B. Marshall, S.S. Stinson, J.M.
Hurn, A.M. Koutsantonis, A. Batty, J.A.
Mullighan, S.C.

Amendments thus negatived.

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

Amendment No 2 [DeputyPremier–1]—

Page 3, after line 38 [clause 4, inserted section 30A]—After subsection (3) insert:

(4) To avoid doubt, an offence against this section is a major indictable offence.

I discussed this and the next couple of amendments in my close of second reading speech, so I will not repeat my explanation, although I may resort to it if there are questions.

Mr TEAGUE: The short point is: why is it necessary to have a provision for the avoidance of doubt?

The Hon. S.E. CLOSE: It is the first major indictable offence to be introduced into this act, and so it is to be specifically clear that this distinguishes from the others, which are minor indictable.

Mr TEAGUE: So that is the reason then, that it is the first time, and now we have an undoubtedly major indictable offence that is now included in the act. We then look at the rest of the clause, and in particular subclause (3), where we see that subclause (3) provides for those alternative verdicts:

If at the trial of a person for an offence against this section the trier of fact is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a Category 1 offence, a Category 2 offence or a Category 3 offence, the trier of fact may bring a verdict that the accused is guilty of that offence if the proceedings for the offence charged commenced within the applicable limitation period for the lesser offence.

We are all familiar with all of that. Just to drive home the extent of the juxtaposition and the practical circumstances therefore to be faced by someone who is charged with a new offence, they will find themselves inevitably charged with a major indictable offence in circumstances where alternative verdicts, including a category 3 offence, are available to the trier, which would otherwise have been dealt with by way of a minor indictable offence.

I get the fact that it all needs to be within the same limitation period, so there is no prejudice in that way, there is not another means of pursuing that charge in that way, but it must be recognised surely that there is a potential for great harm to be done to a person who finds themselves charged by what necessarily is dealt with as a major indictable offence. It means it is in a superior court and all that goes with it.

You had better be very careful to make sure that the elements of the offence are well constituted so that there is not a practice that might emerge where there is now an alternative that is as close to an ordinary civil process as a category 3 offence that is there in the alternative. Is there any other safeguard, apart from the time limit, that can provide some protection against that kind of exposure?

The Hon. S.E. CLOSE: First of all, I should just clarify when I said that I had previously spoken to close the second reading; it was, of course, in moving the first amendment. It is all becoming a blur.

Probably the easiest way to respond to the question is to refer again to what I did talk about in the close of the second reading, being the fact that any commencement of a prosecution needs to be followed in the DPP's Statement of Prosecution Policy and Guidelines. That is the ultimate protection against what I think the member is concerned about.

Mr TEAGUE: At the risk of trying the committee's patience and endeavouring to have something on the record in this regard, we have heard this reflected upon not so long ago by the ICAC in circumstances of prosecutions that are brought, the principles that apply and the fact that, well, it goes with the territory, sorry. Directors of Public Prosecutions make these decisions, prosecutions occur and what flows from that sometimes is great privation.

Here we have a situation in which, at least on the face of the legislation, when one combines the amendment, for avoidance of doubt admittedly, and we know that, the substantive new offence is going to result in there being the possibility for something that might otherwise have been dealt with in a relatively summary way in a court of summary jurisdiction at a lower level yet will potentially now find its way into a superior court tried as a major indictable offence with that backstop as an alternative.

Would it not be a safer course at least to separate the two so that, if there is a decision to prosecute for this new major indictable offence, that must be dealt with completely separately to those ordinary, albeit in certain circumstances very serious but of longer standing, categories 1, 2 and 3, or even, dare I say, a category 1 only—some sort of demarcation to say that there is no single process that is involved for those lower categories?

The Hon. S.E. CLOSE: That is not the path that has been chosen for this bill, nor is it the subject of any amendment before the house. It is reasonably standard for there to be a range of levels of charge that are at the disposal of the Director of Public Prosecutions. It is, of course, possible to point to some prosecutions that have started somewhere and ended up somewhere else or started somewhere and perhaps should not have proceeded on that basis. We humans are imperfect—even lawyers. This is the way in which this bill has been determined to be brought forward. It has passed the other chamber and it is the proposition here for this chamber in this format.

Mr McBRIDE: I am very fearful, with these sorts of new changes and laws, that we will see innocent employers face the wrath of the law and potentially two or three consequences. One is that, obviously, they could face a jail term—

The ACTING CHAIR (Mr Brown): Before you continue, member for MacKillop, we are discussing the amendment moved by the Deputy Premier. You will have a chance to ask questions about the clause in general.

Mr McBRIDE: Transitional and saving provisions, is that where we are up to, schedule 1?

The ACTING CHAIR (Mr Brown): No, we are up to amendment No. 2 on clause 4. You will get a chance to ask questions about the clause more generally, but at the moment we are just discussing the amendment. Are there any further contributions about the amendment?

Amendment carried.

Mr COWDREY: I want to explore the definition of 'a person' contained in the bill. For clarity, I know the question was asked in the other place, but I am not sure that the answer that was given was necessarily entirely understandable.

The Hon. S.E. Close: Challenge accepted.

Mr COWDREY: Challenge accepted, yes. In making this contribution, I want to also reflect very briefly, to ensure that I get it on record before it disappears out of my head, on the government's position on rejecting the amendments put forward by Mr Bell in regard to this clause.

The fundamental issue that seems to have been turned aside by the government in relation to their argument that employers should be held to a different standard because they make decisions and have responsibilities—but workers have those as well. Workers have duties under this act, and they are responsible for the actions they undertake while at work. I think it is difficult to reconcile the argument that has been put forward by the minister in regard to the reasoning for the non-acceptance of those amendments that have already charted their course in that regard.

In terms of who is captured and defined under the bill, my question is reasonably straightforward. We know that we are capturing, essentially, anybody who conducts a business. For the purposes of the definition, anybody that would be within government would be captured. My question is directly in terms of ministers of the Crown. If a circumstance occurred where there was a death of a person on duty—a park ranger, perhaps, with the environment department—and that death was as a result of a ministerial direction provided to them to undertake a particular duty, would the Minister for Environment be captured by this bill?

The Hon. S.E. CLOSE: The reason that would not be the case, that a minister would be held to account under this piece of legislation, is that a minister is explicitly not an officer under the Work Health and Safety Act. The employer, effectively the manager, is the Crown and then the managerial structure within the department. The minister is not an employer in that sense.

Mr COWDREY: In that instance, who would be responsible? The Crown is technically the employer. In regard of the decision that was made, you yourself brought into the debate within this committee that the ultimate decision-maker has a particular duty—not in this context, as you have clearly defined, but that being a fundamental principle from the government's view—as to who should be held responsible for this. Again, it is not necessarily one where the position aligns with this side of the chamber.

Say you as decision-maker, as the Minister for Environment, provided a direction that then substantially contributed to the death of a park ranger. You said the Crown was responsible. If the Crown themselves as the employer had not taken a decision that therefore resulted in the death, would there be nothing to see here, no charges laid, no-one at fault under this legislation or more broadly?

The Hon. S.E. CLOSE: The PCBU in that instance would be the department and the managerial structure that exists within that.

Mr COWDREY: So the government itself—a department of the government—could be held responsible for industrial manslaughter. They could be charged under this act, but the minister themselves, who was ultimately the decision-maker in this example that we provided to the committee and who made the decision to subsequently cause the death—the department would cop a fine, but the minister would be scot-free.

The Hon. S.E. CLOSE: The minister is explicitly not an officer. The department, as the PCBU, is responsible for the work health and safety decisions that are made with their employees.

Mr McBRIDE: I refer to the fact that we move straight to an indictable offence, as this amendment clearly points out, rather than through a category 3 structure through the law system, which I know very little about. However, I do know that the major indictable offence is a serious process through the courts. It can be very, very expensive.

With all that employers have to deal with employing employees, is it fair for the employer, for example—who could be innocent at the end of the day, which is unknown at the start—to go through the major indictable offence process through the court to defend themselves, obviously pay court fees, lawyers and the like? They could be found innocent through the major indictable offence process, drop down to category 3 process if deemed necessary by those that are prosecuting this case, and then the employer has to defend themself again. He or she might be guilty or innocent. Through this process, who pays for all these costs? Potentially, there could be an innocent employer at the end of such an unfortunate circumstance as an employee death.

The Hon. S.E. CLOSE: In any court case, it could well be that the person is found to be innocent at the end. For an innocent person to go through a court case, it must be one of the nightmares that any person goes through, as we understand and have witnessed. That does not mean that we do not have laws against things and that we do not attempt to bring the right prosecution. As I said to the shadow attorney-general, there are guidelines that are an effort for DPPs not to make an error in prosecuting someone who is likely to be found innocent.

That does not mean that it never will happen. It does not mean that those decisions are not occasionally taken in error—of course they are, such is the nature of humanity—but the guidelines are there, intended to protect against that. The fact of the occasional error in prosecution cannot prevent us from justifiably having laws against things that we regard to be criminal, and that is what we have determined on our side of the house to be the case for industrial manslaughter. The sentiment of the member is well understood but is not able to be protected against entirely in this legislation.

Mr TEAGUE: Dealing with the clause as amended, I will pick up along the way that I just wonder whether or not the government turned its mind to the point just raised by the member for Colton about whether or not to change the definition to include a minister. I wonder whether or not any consideration was given to that and it was ruled out or if it is just for the first time now being aired and ruled out. I ask that just along the way.

On the matter that I raised in the context of the previous clause, in particular the definition of 'reckless' is one that I just refer to without repeating. Could the government give an indication of a good example of an offence that would be constituted by new section 30A(1)(d)(ii), recklessness?

The Hon. S.E. CLOSE: The challenge with coming up with a specific example is that all of the tests need to be met, so it becomes quite complex to pick an example that is hypothetical and say, 'This would definitely be industrial manslaughter.' The important element of recklessness is that, as stated in my closing of the second reading, for a reasonable person as judged by the court, and as of course judged previously by the DPP as being worthy of taking to the court and likely to succeed, the court would find, the trier would find, that a reasonable person would regard that one would know that that was likely to cause serious injury, death or illness. Rather than play with hypotheticals, I think that is the most useful element.

You also asked whether it had been contemplated adding ministers into the Work Health and Safety Act. It was not; that was not something that was discussed as part of the Boland review. In many important ways, ministers are not employers. The employment occurs under the Public Sector Act through a management structure that is well established within departments, so suddenly putting ministers into that would, I think, have a lot of unintended consequences as well.

Mr TEAGUE: Without taking up a cheap point, in the absence of hypotheticals, I wonder if there might be some unintended consequences associated with the novelty of this all round, acknowledging as I do that it is applied in jurisdictions elsewhere. It is not entirely novel, but we are dealing with a change of circumstances.

In terms then of the elements that are provided for under this new section 30A, we are in circumstances where a person of that certain category, the PCBU, relevantly is that kind of person who has a health and safety duty and they engage in conduct in breach of that duty. So, once they have done that, once that kind of person has a duty and breaches the duty, then they are in real jeopardy once the death has occurred.

To draw from experience in terms of the Industrial Relations Court, we know that for a long period of time the fact of a death in a workplace is akin to a kind of close to strict liability sort of situation in terms of there being some sort of breach of duty. The concern that arises in these circumstances is that you are left then with only—and I say that advisedly because we have this notion of recklessness alongside gross negligence as an alternative. You are only then focused on whether or not you have relevant recklessness. It is a new test; it is not directly drawing on the existing tests in the common law. It is deliberately different. It might be said fairly easily that the relevant person who has the duty is pretty likely to be aware of a risk in circumstances where a death actually occurs and you are left then in terms of the test whether or not that is unjustifiable.

So the concern I suppose is that there is now to be really a significantly lower threshold to be caught by this kind of offence than anything that is really resembling involuntary manslaughter at common law. Perhaps to couch that in terms of the difference, in an involuntary manslaughter context, we used to identify criminal conduct in the first place, and as we see typically some form of criminal act constituting violence that results in death—a deliberateness—usually deliberate violence, and in terms of the level of seriousness of negligence in a driving circumstance, for example, conduct of a serious criminal nature. Here we are now going to be talking about the carrier of a relevant duty who engages in conduct that breaches the duty and then they are caught.

So, in all the circumstances, perhaps I might couch the question in terms of whether serious consideration has been given to that double or alternative standard that is applied, gross negligence or recklessness. Why is it not reasonably sufficient given that the threshold has been established by a duty holder and a breach, low duty? Why has it not come in to a conclusion that there ought to be a single test associated with that of gross or criminal negligence?

The Hon. S.E. CLOSE: The initial test is that it substantially contributed to the death, so there is a trigger point, otherwise I think we are having slightly different views about the way in which we ought to approach this. We have followed the Boland review and therefore consistency with other jurisdictions.

Clause as amended passed.

Clause 5 passed.

Clause 6.

Mr COWDREY: The minister had touched on this slightly, and I cannot remember if it was in her second reading or in the introduction to the amendments. In regard to the regulator's undertaking and in regard to what is going to be necessary for this legislation to be undertaken by the government, can the minister outline additional resourcing, additional skill mix, whether there will need to be changes within SafeWork SA to accommodate this piece of legislation and therefore the necessary arrangements to ensure that SafeWork is appropriately resourced to undertake it.

The Hon. S.E. CLOSE: In that case it was the close of second reading and, as I was reading it, I discovered it was quite critical of the previous government in the cuts made to the agency, which was then followed by a pretty significant list of increased investment which will more than cover, is our expectation, the requirements of this piece of legislation. I made reference to an increase of nearly $4.2 million in this financial year, new investigators, new inspectors who will be able to work on things like industrial manslaughter, additional training and support positions to help educate businesses about worker health and safety before accidents occur, but it also will be about this revised legislation once it has gone through.

There has been an increase in staffing—32 additional staff in the last six months—and currently there is recruitment occurring for a further 16 vacancies. It is work that I think has already taken place since we came into government that is preparing us to be able to meet the requirements of this new piece of legislation as well as, of course, acting more generally on health and safety for workers.

Mr COWDREY: In regard to the addition of staff, is that number net or is that simply new hires?

The Hon. S.E. CLOSE: The additional hires that I was talking about are a combination—and we do not have the breakdown—of filling existing vacancies and additional hires associated with additional funding that we have put in.

Mr COWDREY: Further to SafeWork, what is the government imagining in terms of communication to businesses to alert them of the change that the government has made in relation to this? Does SafeWork have an education campaign that they are looking to provide to employers within the state around the changes that are being made? Are you able to outline for us what modes of communication, what methods of communication, the government is envisaging communicating with, and if any requirements or asks or otherwise have been made with employer groups to distribute that information or to perhaps provide training or otherwise?

The Hon. S.E. CLOSE: The intention is that we will be preparing educational material that will be available freely on the website and will also be sent out by email to subscribers, but, crucially, the new advisory committee that has been established will be a conduit for providing information as well.

The CHAIR: You have had three questions already, member for Colton. If you could make it quick.

Mr COWDREY: Just to clarify, what distribution list are we talking about? Who are the subscribers?

The Hon. S.E. CLOSE: Yes, there are a lot of businesses that are subscribers. There is the website, of course, but I think the most crucial is the third that I mentioned, which is the advisory committee, which has all the major organisations that have all of the distribution to get the information through them.

Mr COWDREY: Who are they subscribed to? Are they subscribed to the SafeWork SA website or are they subscribed to—

The Hon. S.E. CLOSE: There is a mechanism to subscribe to SafeWork SA in order to get updates. Many businesses do that anyway, but we are not relying on that alone.

Mr TEAGUE: There is one more question. There was a sense that the member for Colton might be limited by the standing orders. This is a more advanced committee, so ably led by such an enlightened Chair that I am sure there would be another way through it.

The CHAIR: Thank you, yes.

Mr TEAGUE: The question is then to the number of parties that are on any recipient list for those communications. How many are there?

The Hon. S.E. CLOSE: There are 6,000 or 7,000 businesses that are subscribers to SafeWork SA already, so they will be getting the information. Anyone who goes onto the website will be able to get the information, but the advisory group has got Business SA, the Master Builders, Australian Institute of Health & Safety, the Motor Trade Association and the Ai Group on it, and they will be distributing to all the businesses associated with those peak bodies.

Clause passed.

Clause 7.

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

Amendment No 3 [DeputyPremier–1]—

Page 4, after line 17—After the present contents (now to be designated as subclause (1)) insert:

(2) Section 230(7)—delete 'Committal proceedings for an indictable' and substitute:

Subject to subsection (10), committal proceedings for a minor indictable

(3) Section 230—after subsection (9) insert:

(10) Despite subsections (7) and (8) or any other provision of this Act, a summary or minor indictable offence against this Act that is charged on the same information as a major indictable offence against this Act or any other Act will be dealt with according to the procedures applicable to major indictable offences under the Criminal Procedure Act 1921.

Note—

See section 102(3) of the Criminal Procedure Act 1921.

(11) Section 6A(3) of the South Australian Employment Tribunal Act 2014 does not apply in relation to a summary or minor indictable offence referred to in subsection (10).

(12) To avoid doubt, an information for a major indictable offence against this Act must be laid in the Magistrates Court and be dealt with according to the procedures applicable to major indictable offences under the Criminal Procedure Act 1921.

Amendment carried.

Mr TEAGUE: So we are sort of cobbling it together with the amendment. This point about the committal proceedings brings me back to the practical way in which these actions are likely now to proceed, in that, where there is an industrial manslaughter offence that has been charged, the process will be that that applies for a major indictable offence, and that is regardless of whether or not it is accompanied by those charges for minor indictable offences.

It brings me back, I suppose, to the relevant distinction that applies, in that you have gross negligence on the one hand as defined and recklessness on the other. In terms of the work that recklessness might do in the test that has been described, there is a required level of knowledge, there is an awareness of a substantial risk and then, having regard to that known risk, the conduct of the relevant responsible person is unjustifiable, and we will see that worked through.

Gross negligence, on the other hand, does not involve the necessary awareness of risk; it is just an assessment of how grossly, to use the definition, how egregiously falling short of a standard of care by a reasonable person and is measured by the extent to which it is such a high risk of causing death that it merits criminal punishment. I guess I am coming to the idea that on the one hand you have really grossly egregiously bad conduct that is not connected to an appreciation of risk or any question of whether or not there is unjustifiable risk of something bad happening.

All those circumstances are going to be wrapped up and dealt with in one major indictable proceeding, even in circumstances where questions as to the awareness of the substantial risk assessment of whether or not it is meriting criminal punishment for the purposes of the gross negligence definition and then the other criteria that might be relevant to something as low as a category 3 offence, those questions can all be determined in one great big combination and it can come out in the wash at anything from industrial manslaughter all the way through to category 3 and all determined in one major indictable process. That is the question.

What the amendment seems to be making clear is that once you have an industrial manslaughter charge, then everything else that might go along with it, including, as I perhaps rather clumsily unpacked, the possible way in which the industrial manslaughter charge is prosecuted, all those alternatives can be dealt with in one process and it will be dealt with as a major indictable process and can lead to all outcomes, including an outcome that it is only constituting as minor as a category 3 offence but, relevantly, for the purposes of the amended clause, all happening as a single major indictable process.

The Hon. S.E. CLOSE: The alternative to the scenario that has been described accurately by the shadow attorney, as is proposed here, is that an employer having had a death at the workplace might be faced with multiple legal proceedings, all dealing with the same event but in different courts and at different times. That not only would be a concern about the use of judicial resources but also would be far more complex and less fair on the employer. To deal with a single event in a single jurisdiction is what is desired here and most likely to sort out what occurred and what the appropriate consequence is.

Mr COWDREY: To be clear, if the test for industrial manslaughter is unable to be met and the trier of fact decides that it is not possible to reach that threshold, there will be no referral of that set of circumstances back to SAET. It will all be dealt with within the court that it is referred to. In normal circumstances, that judge potentially would not be exposed to many of the similar offences coming before them. I do not propose to know how many category 1, 2 or 3 offences would be moved into essentially the Magistrates Court to be in the series of procedures. Does it not seem counterintuitive to have the very body that has, essentially, the specificity in terms of industrial relations issues—and particularly category 1, 2 and 3 offences, as the act has stood for a significant period of time—not dealing with the set of circumstances for a lower offence?

The Hon. S.E. CLOSE: First of all, we need to keep in mind that there needs to be the appropriate trigger for it to be treated as a case of industrial manslaughter and not a more minor indictable offence. Having reached that trigger, one expects through the appropriate application of the DPP's policy and procedure, then it would not be possible for that to be heard by the SAET. It does not have the capacity to hear a jury trial and it does not have the wherewithal to hear a major indictable offence, so it all gets moved to the court that is capable of dealing with all sorts of levels of offence.

As I said, the alternative, which would be much harder on the employer, is that having reached that trigger and been charged and gone to that court, should that not proceed, the person would be bounced to a different level. It adds to the different complexity for that person. Dealing with it all at once in the place that is perfectly capable of dealing with it is the fairest as well as the most efficient way of dealing with the circumstance that occurred.

Mr COWDREY: The question then goes to costs. Obviously, there is a difference between SAET and what we are talking about in terms of a major indictable offence. If a company is charged with industrial manslaughter, they appear, the judge is unable to determine that they have committed industrial manslaughter and they are subsequently found guilty of a category 3 offence—which would otherwise have been undertaken in SAET and would never have gone down this track of ending up where it is—under your set of circumstances, it is all going to be dealt with in the one procedure.

Has there been any thought in terms of some sort of recompense of costs that are taken on by the party having to be represented in a completely different jurisdiction than it otherwise would have been, should they only have committed a category 3 offence in the first place?

The Hon. S.E. CLOSE: I think a number of these questions have gone to the circumstance where someone is charged with something that they are ultimately not found guilty of. This happens in our judicial system, as it should, but it does represent an error at some point in judgement—completely understandably—of the prosecution, that they have taken a case that does not result in a successful prosecution. The court will determine costs, of course, on the basis of the outcome.

I think part of these questions, if I am understanding them properly, comes from the perspective of perhaps a wilful prosecution of the industrial manslaughter level, even in the face of it not being such, that there is a fear that that would occur—because it exists in law, that then that would be prosecuted against, even when the evidence is not likely to substantiate that. That ought not to happen.

If some people are going to be found innocent, that should not be a crime in the first place: that is not how our judicial system works. We identify something that we regard to be a crime and we put it into law, and if someone is regarded by the DPP to have committed that crime, then they will be charged. A proportion of those will ultimately not be found guilty of that significant crime and may, at times, be found guilty of something that is much more minor. That is the way our judicial system works in all other crimes. So I think that the argument is not against that chain of events, because it happens, but that the opposition is not keen on the idea of the existence of the crime of industrial manslaughter.

Clause as amended passed.

Remaining clauses (8 and 9) passed.

New schedule 1.

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

Amendment No 4 [DeputyPremier–1]—

Page 4, after line 26—After clause 9 insert:

Schedule 1—Transitional and saving provisions

1—Transitional and saving provisions

(1) Section 230 of the Work Health and Safety Act 2012 (as amended by section 7(3) of this Act) will be taken to apply in relation to an information containing a charge of—

(a) a major indictable offence against the Criminal Law Consolidation Act 1935 or any other Act; and

(b) a summary or minor indictable offence against the Work Health and Safety Act 2012,

laid before the commencement of this clause (and to avoid doubt, section 6A(3) of the South Australian Employment Tribunal Act 2014 will be taken not to apply in relation to the offences referred to in paragraph (b)).

(2) Despite section 230(7) of the Work Health and Safety Act 2012 (as in force immediately prior to the commencement of section 7(2) of this Act) committal proceedings for a minor indictable offence referred to in subclause (1)(b) may be conducted in the Magistrates Court in accordance with the Criminal Procedure Act 1921.

New schedule inserted.

Title passed.

Bill reported with amendment.

Third Reading

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) (18:16): I move:

That this bill be now read a third time.

In so doing, I thank every person who has contributed to this debate, including the advisers and also the opposition in asking useful and thoughtful questions.

Bill read a third time and passed.

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