HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-11-02 Daily Xml
Contents
Xml

Bills

Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:58): On behalf of the Deputy Premier, I move:

That this bill be now read a second time.

Today I introduce the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. This government is firmly committed to the fact that every worker deserves the right to come home safe to their family and loved ones at the end of each working day. Sadly, and far too often, this is not the case.

Last year, 15 South Australians lost their lives from traumatic workplace injuries, and more than 100 South Australians have lost their lives at work over the last decade. This is a sobering figure but, if anything, it is an underestimation because more than 100 lives do not include deaths from occupational diseases such as asbestosis or silicosis or deaths related to mental illnesses caused by work.

As a community, and as policymakers, these figures should focus our attention on the essential need for strong work health and safety laws which avoid preventable workplace injuries and save lives. The bill delivers on the government's commitment to make industrial manslaughter a crime in South Australia but, more importantly, it answers the long call of injured workers, of victims' families, of unions and of the community, for this parliament to make a stand and make it clear that every death at work is a death too many.

This is a reform which has taken too long. Where once South Australia could have been a leader on this issue, we have fallen behind the rest of the nation. Industrial manslaughter is now a crime in Western Australia, the Northern Territory, Queensland, Victoria and the Australian Capital Territory. The commonwealth has committed to introducing its own industrial manslaughter laws. Earlier this year, the commonwealth, state and territory work health and safety ministers unanimously agreed that industrial manslaughter would form part of our model national work health and safety laws going forward.

With the passage of this bill, South Australia joins the rest of the nation in recognising the severity of preventable workplace deaths. There have been three key guiding principles to how the government has approached this important reform. First, industrial manslaughter must be a real deterrent against serious contraventions of work health and safety, and carry a penalty which recognises the dignity of human life and the devastating consequences for families whose loved ones are taken due to workplace injury.

Secondly, we should strive for consistency with the recommendations of the 2018 national 'Review of the model Work Health and Safety laws' report, which recommended the introduction of an industrial manslaughter offence in the model Work Health and Safety Act, as well as the industrial manslaughter laws of other jurisdictions across Australia.

Thirdly, industrial manslaughter legislation should be developed in consultation with the community, including South Australian businesses, rather than being imposed from above without discussion. This is because the essential aim of this bill is to deter unlawful, dangerous behaviour, and to achieve that we need the cooperation of the business community and their representatives. Each of those principles are reflected in the bill now before the parliament.

This bill is a product of an extensive consultative process. This government was elected with a clear mandate to criminalise industrial manslaughter which formed an important pillar of our industrial relations policy. Following the election, we released a discussion paper and held roundtable forums with both business groups and trade unions to discuss the design of these new laws. Following those round tables, we released two consultation drafts of this bill for comment, the first between November 2022 and February 2023, and then a second from April to May 2023.

These laws were also discussed at innumerable forums and meetings over that same period. I am very grateful for the constructive feedback we received from both unions and business groups about this consultation process, and am pleased to say that much of the feedback has been taken into account in this final bill.

Some have questioned why these laws are necessary when an offence of manslaughter already exists under our criminal laws. There are several reasons why. One of the primary functions of this parliament is to protect the dignity of human life and to vindicate victims of gross criminal misconduct. We have watched over past decades as South Australia has fallen further and further behind the rest of the nation in introducing industrial manslaughter laws. It would be a disturbing outcome if that failure was seen to reflect that this parliament treats the tragedy of preventable workplace deaths as a lesser concern than other jurisdictions around the country.

As a matter of legislative policy, it is important that industrial manslaughter is integrated within our work health and safety framework, not something that stands apart from it. Criminal manslaughter laws are effective at dealing with the misconduct of an individual person, but not where a death results from a chain of decision-making failures by a large corporation or where a serious health and safety risk simply falls through the cracks.

The reality is that our criminal laws and our work health and safety laws are monitored and enforced by different investigating agencies applying different principles. It is important that both businesses and workers have certainty that the standards of misconduct for industrial manslaughter are assessed against the same health and safety duties already owed under the Work Health and Safety Act.

If you are complying with your existing work health and safety duties, then you have nothing to fear from these laws. The sole function of industrial manslaughter is to ensure that, where those duties are breached and where that results in the death of a person, the penalty is commensurate to the gravity of that offence. These laws will result in systems which are more just to victims, easier to understand for the community and fairer to businesses who do the right thing and meet their current responsibilities under the Work Health and Safety Act.

Turning to the precise provisions of this bill, the offence of industrial manslaughter will be dealt with by inserting new section 30A into the Work Health and Safety Act. Subsection (1) provides that the offence of industrial manslaughter will apply where:

(a) the person has a health and safety duty; and

(b) the person engages in conduct that breaches that duty; and

(c) the conduct causes the death of an individual to whom that duty is owed; and

(d) the person—

(i) engages in the conduct with gross negligence; or

(ii) is reckless…

The adoption of a criminal standard of either recklessness or gross negligence is consistent with the overwhelming majority of other states and territories across Australia. The only state which does not provide for a negligence standard is Western Australia.

An industrial manslaughter offence will incur a maximum penalty of up to 20 years' imprisonment for a person and a financial penalty of $18 million for an offence committed by a body corporate. These penalties are consistent with the uniform national penalties unanimously agreed to by the commonwealth, state and territory work health and safety ministers earlier this year. The offence of industrial manslaughter will apply to both persons conducting a business or undertaking, and officers. This is also consistent with industrial manslaughter laws in other jurisdictions. The offence is subject to the same exceptions for volunteers which already exist under section 34 of the Work Health and Safety Act and which already apply to other criminal offences.

Statutory definitions of recklessness and gross negligence will be inserted into section 4 of the Work Health and Safety Act. This directly responds to requests from stakeholders seeking greater legal certainty about these criminal thresholds during the consultation process. The definitions of recklessness and gross negligence are based on the ACT and NT criminal codes, which were endorsed in the 2018 review of the model work health and safety laws when it recommended a gross negligence standard for industrial manslaughter. These definitions are intended to codify the common law of recklessness and gross criminal negligence. They are not intended to impose a higher criminal threshold than would otherwise be found at common law.

Subsection (2) provides that conduct is taken to cause the death of an individual 'if it substantially contributes to the death.' This provision reflects the common law of causation and makes clear the mere fact that conduct contributing to death is alone insufficient. The concept of conduct substantially contributing to a death is intended to include conduct that causes a person to be injured or to contract an illness, including a mental illness, that later causes the person's death.

This is also intended to include deaths due to injuries or illnesses which are caused cumulatively, such as exposure to hazardous chemicals or injuries which arise over an extended period of time, such as dust diseases like asbestosis or silicosis. Subsection (3) provides for the availability of an alternative verdict where a person may be convicted of a category 1, category 2 or category 3 offence under the Work Health and Safety Act if their conduct does not meet the relevant threshold for an industrial manslaughter conviction.

These alternative verdicts are only available if an industrial manslaughter prosecution is commenced within the same statutory limitation period as would apply to the lesser offence. Section 31 of the act is also amended to introduce an alternative criminal threshold of gross negligence to category 1 offences. This amendment is consistent with recent changes to the model national work health and safety laws.

While the government had initially intended to progress these changes as part of a later bill, feedback from the business community was that this should be done concurrently with the introduction of industrial manslaughter to avoid any incentive for a prosecuting authority to overcharge an offence as industrial manslaughter when a category 1 charge may be more appropriate. Section 232 of the act is amended to make clear that there is no statute of limitations for an industrial manslaughter prosecution. This is consistent with industrial manslaughter laws in other jurisdictions, as well as the ordinary law of criminal manslaughter.

I want to close by expressing my immense gratitude for the work of many unions, community organisations and the family members touched by workplace tragedies, like Andrea Madeley and like Pam Gurner-Hall, who have campaigned for these laws for years, and sometimes for decades. Pam has worked as a passionate and tireless advocate for health and safety in workplaces after the tragic death of her partner, Jorge Castillo-Riffo, at the Royal Adelaide Hospital in 2014. I also particularly want to acknowledge the advocacy of Andrea Madeley, who has been such a valuable support to so many others.

Andrea lost her 18-year-old son, Daniel, in a horrific workplace accident in 2004. Daniel was in the first year of his apprenticeship as a toolmaker. In the midst of that terrible loss, Andrea had to navigate a criminal investigation, legal proceedings and a coronial inquest. As a result of that experience, Andrea founded the advocacy group Voice of Industrial Death, which has provided support to innumerable other families affected by workplace tragedies.

In 2011, informed by her own exposure to the legal system, Andrea made the decision to study law, and now as a lawyer she helps people injured at work navigate the complexities of our legal system. Andrea has pressed governments of both political persuasions to take stronger action on workplace safety and has spoken frequently with the Attorney-General during the development of this bill. The fact that Andrea has been able to devote her life to doing so much good after such a horrendous tragedy is nothing short of inspirational. It is entirely fitting that Andrea, in 2023, was nominated for Australian of the Year.

The introduction of industrial manslaughter laws in this state has taken far too long but I hope, thanks to the tireless work of individuals like Andrea and Pam, that these laws will go some way to ensuring that no other family has to go through that experience ever again. I commend the bill to the house. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Work Health and Safety Act 2012

3—Amendment of section 4—Definitions

This clause inserts new defined terms of industrial manslaughter offence, gross negligence and reckless for the purposes of Part 2 of the Act.

4—Insertion of section 30A

This clause inserts a new section 30A containing the offence of industrial manslaughter into the principal Act.

30A—Industrial manslaughter

Proposed section 30A establishes the offence of industrial manslaughter.

A person commits an industrial manslaughter offence if they have a health and safety duty and engage recklessly or with gross negligence in conduct that breaches that duty, and the conduct causes the death of a person to whom the health and safety duty is owed.

The proposed maximum penalty is 20 years imprisonment for an offence by an individual, or an $18,000,000 fine in the case of an offence by a body corporate.

Proposed section 30A(3) provides for alternate verdicts in a trial for an industrial manslaughter offence.

5—Amendment of section 31—Reckless conduct—Category 1

This clause amends section 31 of the principal Act to include gross negligence as an element of a Category 1 offence, and amends the title to reflect the change.

6—Amendment of section 216—Regulator may accept WHS undertaking

This clause amends section 216 of the principal Act to indicate that WHS undertakings may not be accepted for a contravention or alleged contravention that is an industrial manslaughter offence.

7—Amendment of section 230—Prosecutions

This clause amends section 230 of the principal Act to disapply subsection (4) in relation to an industrial manslaughter offence.

8—Amendment of section 231—Procedure if prosecution is not brought

This clause amends section 231 of the principal Act to allow a person to make a written request to the regulator for a prosecution to be brought in certain circumstances where the person considers that an industrial manslaughter offence has occurred, and no prosecution has been brought.

9—Amendment of section 232—Limitation period for prosecutions

This clause amends section 232 of the principal Act such that the limitation period for prosecutions for offences against the principal Act does not apply in relation to an industrial manslaughter offence.

Mr COWDREY (Colton) (12:13): I rise to provide a contribution on the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023, and begin my contribution by highlighting the fact that I am the lead speaker for the opposition on this bill. I also want to clearly state that the opposition and the Liberal Party's strong view is that all South Australian workers deserve to return home safely after a day's work.

We all, on both sides of the house, understand that anybody who does not return home is somebody's son or daughter, somebody's wife or husband, somebody's granddaughter, grandson or friend. It is something that both sides of the house share, our view that everyone deserves to come home from work safely. Where we differ from the government is in our opinion that this measure is the right way to go about achieving that goal.

The purpose of the bill before the house today is to create an offence of industrial manslaughter in South Australia. Through provisions of the bill, an individual or body corporate commits industrial manslaughter if the individual or body corporate has a health and safety duty and the individual or body corporate engages in conduct that breaches that duty, and the conduct of the individual or body corporate causes the death of a worker to whom that duty is owed and the individual or body corporate either engages in the conduct with gross negligence or is reckless as to the risk to a worker, whether that be of death or serious injury or illness.

The bill provides for a substantial penalty provision where a breach of an existing duty through gross negligence or recklessness results in the death of an individual. The proposed maximum penalty is 20 years' imprisonment for an offence by an individual or an up to $18 million fine for an offence by a body corporate. The bill proposes that the two-year limitation period for prosecution under the act would not apply to industrial manslaughter prosecutions.

It has already been foreshadowed in the other place that the opposition will not be supporting this legislation. We came to this position for the following reasons. The first is the Liberal Party's long-held view—a position that was also put forward by employer organisations and others, including Business SA, the MTA, the AHA and others, in their submissions to the minister on this bill—largely that this legislation is not necessary.

The offence of manslaughter is contained in the Criminal Law Consolidation Act of this parliament. This offence already covers the field in this regard. Manslaughter is still manslaughter, whether that be in the workplace or any other setting, and there is nothing stopping, nor has it stopped, criminal charges being laid before in this state. In fact, there are examples of charges being laid and successful prosecutions under the existing model. As would be assumed, there are obviously serious penalties that are available to the court in these instances.

Second is the fundamental principle that has underpinned WHS laws in South Australia and in fact nationally for a significant period of time—an issue that I will touch on again later in my contribution—the principle of mutual obligation to workplace safety. For decades, it has been understood by workers, employers, contractors, directors or those conducting a business that everybody involved in a workplace has a collective responsibility for workplace safety. No matter where you go or in what workplace you undertake your work, I think everybody in South Australia would have come across a sign or a policy or a meeting note that states that workplace safety is everyone's shared responsibility.

They would have done that because those words are more than a slogan. It is a principle that acknowledges that despite the best training, the best policies and the best intent there is a shared responsibility on everybody, both employee and employer alike, to implement and conduct themselves in line with those policies and in line with those responsibilities, and to ensure that their actions protect each other.

It is our firm view that we cannot achieve what is desired here, to ensure that every South Australian returns home from work to their family at the end of the day and to reduce as much as practically possible workplace injury and deaths, without the yin and yang and without both sides working together, and the principle of mutual obligation is entirely central to that being achieved.

What this bill does is say that, despite all those involved in workplaces across our state having obligations for each other's safety under the WHS Act, some are more responsible than others and will face greater penalties than others. Under this bill, some individuals may have a health and safety duty and may engage in conduct that breaches that duty, particularly where an employer has taken all reasonable steps, but under this bill they would not be prosecuted to the same threshold.

In our view this significantly changes the decades-old principle of mutual obligation and creates a segmentation of workplaces—an unfortunate 'us and them' mentality—which is ultimately unhelpful and which will be unhelpful in achieving a common and shared goal that everyone shares. To this end, again, the MTA, the AHA, Business SA and other employer organisations have rightly pointed out a number of deficiencies, particularly with regard to the shift away from this fundamental principle.

I recall the suggestion being floated on many occasions that, if the Labor Party want to send a message to those who are doing the wrong thing by increasing penalties for breaches of duties owed under the WHS Act, they could do this simply by increasing the available penalties under category 1 offences that apply to everyone with a duty under that act. Instead, they have chosen to proceed down this path which creates an 'us and them' mentality and which steps away from the decades-old convention of shared responsibility for WHS in the workplace.

Thirdly, we have significant concerns regarding aspects of the bill before us, and we share those concerns of a number of employer organisations and others. The first of those centres around the potential for significant and irreparable reputational damage for businesses and individuals or body corporates as a result of being charged with an offence of industrial manslaughter, despite eventually potentially not being able to be found guilty of that offence.

It is our view that this parliament should take all steps available to it to ensure that, if we are going to go down this route, charges for industrial manslaughter are quarantined for the most egregious offences rather than seeing instances that could significantly damage otherwise good reputations of businesses trying their best to employ South Australians and to create jobs and opportunities for South Australians, who have already taken a substantial risk to put their capital on the line to attract investment to our state and to export and make products.

It would seem counterintuitive not to ensure that we set up a regime that at the very least protects and encourages those who charge these offences, those within SafeWork SA or within our bureaucracy more broadly, that the mindset taken when an event sadly does occur is taken in a mindful way that looks at and balances the potential irreparable reputational damage that could be done with the breach that has occurred.

In an instance where we have an alternative verdict framework contained within this bill, should the trier of fact not be able to ascertain that an industrial manslaughter offence has in fact occurred, that could potentially slip not to a category 1 offence should the judge be of the mind that the breach that has occurred has reached that threshold, not to a category 2 offence should the judge be assured that the breach has reached that threshold, but all the way down to a category 3 offence. The difference, both in terms of available penalty and damage to the reputation of an individual or business, would be absolutely immense should that ever be the case. It is why the opposition moved an amendment to that end in the other place when the bill was before our colleagues there.

We understand that businesses, like individuals, can suffer reputational damage. Given the complexity that comes from suggesting any sort of suppression regime, which has been brought up by submissions from some employer organisations, our initial response to those was to look for the amendment that I have just referenced to make changes to the alternative verdict framework in the absence of making changes or trying to suppress charges that had been potentially laid under this legislation.

There is a balance where we have the principle that has always stood within our legal system, the right to innocence until proven guilty, which should of course be maintained, but we also, from a practical perspective, understand that public reporting, particularly of these instances, is going to be significant. It does not appear that that suggestion, in our view, was practical, hence why we explored the avenue we did in regard to an alternative verdict framework.

Despite the rejection of that particular amendment in the upper house, our view has not changed in that regard. We do not think that the alternative verdict framework contained in the bill at the moment is appropriate, nor does it provide an appropriate level of risk mitigation to businesses and individuals in South Australia.

Had the government supported these amendments in the other place, South Australians could have had a greater level of confidence that industrial manslaughter charges, should they be brought, would have been brought in situations of near certainty of a conviction, and the potential reputational damage to South Australian businesses and individuals would have been limited—but, alas, that was not the case.

Instead, the government blocked those amendments, amendments that were supported by the MTA, by Business SA, by AHA and other employer bodies. I will not use the parliament's time to prosecute all of those amendments that were moved in the other place again, but we certainly stand with those organisations and the business community and their concerns, particularly in regard to potential reputational damage and impacts that may come as unintended consequences of this legislation.

I think it is important I have referenced the feedback that was provided to the minister responsible for this legislation, as well as the government more broadly. I think, given where we are, it is helpful at a high level to go over some of the feedback that was provided to the government and, in particular, highlight some of the recommendations for improvement to the bill that were not taken up by the government, changes that were, in the view of these organisations, sensible and would have limited the potential impacts.

In particular regard to the AHA submission on 9 February to the minister responsible in the other place, I will highlight that they pointed out in their submission the primary and fundamental point that underpins the opposition's reasoning for not supporting this bill:

Our position is that there already exists sufficient avenues in the criminal jurisdiction for an employee or group of employees to pursue action against an employer, if in the event a workplace death was to occur.

Under the criminal jurisdiction there have been multiple cases in the past in South Australia where an individual who has a health and safety duty has been convicted of manslaughter under common law by reason of undertaking an unlawful and dangerous act in the workplace. The introduction of industrial manslaughter legislation within a work, health and safety context is an unnecessary piece of legislation.

The AHA goes on to point out one of the fundamental complexities of this bill in regard to the threshold, particularly around the level of confusion around 'reckless and/or grossly negligent', in the changes that have occurred, both at the category 1 offence level and in an agreement within the national framework, and what that means in terms of our thresholds here.

The minister has been at pains to point out that existing duties have not changed. That may be true, but the penalty provisions for those existing duties have changed significantly and also with a threshold that could be argued to have been reduced. So the AHA points out, in a suggestion list of ways to improve the bill, that:

Amending Section 30A(1)(d)—Reckless or grossly negligent—

would be helpful. The AHA continues:

The Amendment Bill under Section 30A(1)(d) states 'the person is reckless or grossly negligent as to the risk to an individual of death'.…Our position is that the term 'reckless' should be removed from this section altogether such that the section should be amended to read 'the person is grossly negligent as to the risk to an individual of death'. Alternatively the Bill could [simply amend or change] the word 'or' to 'and', such that the section states 'the person is reckless and grossly negligent as to the risk to an individual of death'.

Other suggestions from the AHA include the inclusion of workers in the bill. Again, this goes back to the fundamental principle of mutual obligation that I discussed earlier in my contribution. The unintended consequence—or perhaps it is intended; I am not sure—of this bill is an us and them situation and a delineation of the workplace in terms of potential impacts of breaches of duties that are owed, as it currently stands, by everybody in the workplace.

The AHA has argued that the inclusion of workers in the bill through an amendment to section 30A(1) should effectively have the description or definition of PCBU removed, and that simply leaving a person or worker within the current definition of the act would be a sensible course, given that section 28(b) of the WHS Act, as it stands at the moment, requires workers to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of all other persons.

Workers also currently have a duty to follow any reasonable instructions in the workplace, covered by section 28(c) of the WHS Act, and a duty to cooperate with any reasonable policy or procedure of the PCBU as defined in section 28(d) of the WHS Act and that such a breach could, for example, include a serious failure to follow directions from the PCBU as to safety procedures or processes.

The other section in regard to potential improvements for the bill was highlighted by the AHA, and again, I have referenced this to a degree already around the alternate verdict framework. As I said, there was an amendment moved in the other place in regard to this particular issue, but I will put forward the position from the AHA in that regard.

New section 30A(3) refers to a person potentially being found guilty of a category 1, 2 or 3 offence, where a finding of industrial manslaughter is not satisfied. This has the potential of prosecutions for industrial manslaughter being brought as a matter of course, knowing that an alternate verdict may be found.

The bill should not reflect the position where an unsuccessful prosecution for industrial manslaughter automatically defaults to a possible verdict of a category 1, 2 or 3 offence. The prosecution should ultimately decide as to whether they are seeking a verdict of industrial manslaughter, and if the verdict is unsuccessful then the case is dismissed. There would be subsequent opportunity to prosecute the matter under a different category or offence.

I know the member for Mount Gambier will discuss further some of the other feedback from the AHA, so I will not go into any more detail in regard to their submission to the minister. I will move to Business SA's submission. Again, I start from the top by highlighting the fundamental principle that we addressed earlier. As the Liberal Party does, Business SA, and I quote:

…maintains its position that introducing industrial manslaughter into the Work Health and Safety Act 2012 (WHS Act) is not needed.

They go on to particularly highlight the issue of irreversible reputational damage. Given the significant consultation that was undertaken—and I am certainly not knocking the process in terms of the period of time that was provided to organisations to take part in and to go back and forward with the government—what I think is clear from these submissions and what I am highlighting is that there was still a significant gap between where the business community and employer organisations were in terms of their expectation of the government on this, and where we have landed.

While a consultation period may have happened, while the government may have had representations provided to them, it does not appear that they have acted on them. In particular, Business SA highlights in what I point out is their second submission, so to the second draft of the bill that was provided, and I quote:

It does not address the concern that it may lead to industrial manslaughter being prosecuted more readily.

Again, they make the case that matters should be heard in camera and that a business owner initially charged with industrial manslaughter but later found guilty of a lesser offence, say a category 2 or 3 offence, may suffer that irreversible reputational damage.

Again, the amendment that was put forward by the opposition in the other place, while not directly addressing the issue of in camera prosecutions, or cases being heard in camera, it certainly did address the second half of Business SA's position in regard to the alternate verdict framework. What I am sure we all in this place want—but some of us are more willing to ensure that this is the case, given the lack of support in the other place for this amendment—is to ensure that those charges being brought for industrial manslaughter are only brought in the most egregious of circumstances where there is almost no chance that a successful prosecution is not to come from those charges.

The second point, one that I have not got to just yet but will touch on in more detail in my contribution at a later point, is in regard to appropriate resourcing of SafeWork SA. Business SA rightly fully point out, and again, I am directly quoting here:

As previously raised in our last submission, with new provisions being included in the WHS Act, SafeWork SA must be adequately resourced, and staff trained to have the required expertise, to appropriately manage its responsibilities.

I will come back to that point a little later.

Finally, in regard to submissions to the government, I just want to touch on those put by the MTA. Firstly, I think it was rightfully raised in the committee process in the other place the complexity that comes with group training organisations (GTOs) and their interactions with this legislation. We know in the majority of circumstances of employment there is a reasonably direct relationship between employer and employee, where in most circumstances you would have either the employer, a manager—somebody who is directly responsible from an internal organisational perspective—who would, in most circumstances, see, look after, supervise their employees at a reasonably direct level.

What we have in regard to GTOs is obviously an employment relationship between the group training organisation and their employees—who are, in most circumstances, trainees or apprentices—who are employed by the GTO but are housed in businesses that they do not have direct line of sight of from a day-to-day perspective 24/7 by any stretch of the imagination. While the government has committed to working with GTOs in particular to provide frameworks around what that looks like, to provide clarity to them and guidance on how they need to navigate this change, I think it would be remiss for this side of the house to not urge the government to do that as a matter of priority.

The last thing that we want, and I am sure I speak for both sides of the house in regard to this, is to see apprenticeship numbers drop, to see employee numbers drop from our GTO organisations based on fear of what that would potentially mean or what the potential impacts of these changes would mean for their organisation moving forward.

We have a strong GTO industry here in South Australia. There are so many of our young people, whether they be in trades that are directly linked to the MTA—mechanics or panel beaters or other vocations directly involved in that industry—or, more broadly, others in construction as well, and it would be a terrible unintended consequence of this legislation if we were to see significant drops or people exiting the market or people being too concerned to enter the market in those roles off the back of not having those things in place.

As the shadow minister responsible, I certainly implore the minister to do that work with haste, to work as closely as he possibly can to ensure that the GTO sector is provided as much clarity as possible. It was made clear to GTO providers specifically that they would not have any legislative protections, given exactly what I have just described and the lack of proximity in terms of their relationship with their direct employees, but at the very least what they have asked for should be provided to them to at least help minimise and mitigate those risks to the industry and to the broader South Australian economy. That is surely not too much to ask.

Also in their submission, the MTA rightly draw attention to the threshold issue that we addressed earlier through the AHA submission, that the inclusion of gross negligence in a category 1 offence is confusing. We note the changes that are being made at a national level and we note the government's position that they had chosen to update some of the threshold language in this bill rather than wait for the WHS revisions as a whole, but we do point out that the MTA would like to see that industrial manslaughter and the threshold for it should be clearly above and beyond just reckless behaviour.

In regard to other issues that were pointed out in the MTA's submission, similar to what I discussed earlier, the capturing of all those in the workplace with responsibilities under the WHS Act, particularly in instances where an employer can take all reasonable steps to ensure—and again I quote:

While an employer can take all reasonable steps to ensure the safety of workers, the actions of a reckless employee causing the death of another should be equally captured under Industrial Manslaughter.

Again, I point out the underlying principle that is being brought to the fore here, and that is that we are creating a situation within our workplaces moving forward where the existing fundamental principle of mutual obligation no longer exists. There is a delineation in terms of what people are going to be provided with moving forward based on this legislation.

The final point that the MTA raises in their submission—again, this is their second submission to the draft bill—is in regard to consistency of penalties. There are a number of states in Australia that have these laws in place now. The Labor Party has had their will through a number of states in regard to introducing this legislation. While there have been pushes at a federal level to provide some sort of harmony across this legislation, but more broadly WHS law generally, there still remains significant differentiation across each of those jurisdictions. I will go into that in a couple of minutes, to provide some information to the house around the current state of industrial manslaughter laws around different jurisdictions and where we sit comparatively to that with what is being proposed here today.

There has been some ground given by the MTA. While they are not necessarily enamoured with the penalty provisions in the current bill, they certainly understand and support in principle the consistency argument that has been put forward in terms of provisions. Their argument is: why put us at the upper echelon of the thresholds of penalties; would it not be better to do that when we update and harmonise the model WHS laws later on?' That is an argument they have included in their submission.

I mentioned earlier that I was keen to touch on the issue of appropriately resourcing SafeWork SA. It is a point that I think is particularly important, because it is one thing for the government to make changes like this but another thing entirely to ensure that the independent agency responsible for undertaking these duties, for keeping our workplaces safe, is appropriately resourced.

Essentially, on one hand the government is saying that we need to do more, but from a question on notice from an estimates committee earlier in the year provided to the Attorney-General in the other place it has become abundantly clear that SafeWork SA is running at least 20 FTEs short across their inspectorate staff—across inspectors, investigators and specialist staff. It is hard to reconcile the position that we are doing everything we can to minimise workplace injury and death when the government of the day, the Labor Party, is running 20 FTEs short in that area.

Unless there is a plan—and I will come later to some of the other changes that are being proposed by the government, particularly in regard to changing potential avenues to address WHS complaints—unless there is a nefarious and underhanded strategy that the government is looking to slowly execute, why would they not be properly resourcing SafeWork SA to do what they are doing at the moment?

This is not even implying the additional resources that will be necessary to undertake the additional responsibility that they are about to be handed when these laws pass. Everyone understands the nature of this chamber and the fact the government is going to pass these laws. Surely, for a government that is willing to say that they want to make employees safe as much as they practically can and to minimise injury and death, the bare minimum would be to ensure that the number of staff working at SafeWork SA in the particular area to investigate WHS issues will be commensurate with what they have in their budget. That is galling—it is absolutely galling.

Earlier in the week at a hearing of the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation we spoke to the Master Builders Association. They, too, called out this fact, that it is in everyone's interest. It does not matter if it is employers, employees or industry organisations, it is in everyone's interest to ensure that our independent regulator of workplace safety is appropriately resourced, but sadly this government has not chosen that as a priority.

Another key fundamental issue with the legislation before us is the fact that, while we are looking at every possible way that we can improve work health and safety, and while certainly we are willing, able and open to considering other potential changes being put forward by the government, this legislation is focusing on a retrospective issue.

Again, if we are going to go forward, if we are going to make changes, we should be focusing on a proactive approach to ensure that workers come home safely. That should be our primary concern. Our primary concern should be about improving the standards, improving training, improving education, preventing injury, preventing death before it occurs. That is where our fundamental effort should be. As we have already pointed out, there are existing legislative mechanisms that cover the field in this area.

One of the other areas that I wanted to touch on was the jurisdictional comparison of where things are at at the moment, obviously noting that there are changes that will come given the agreements that have taken place at the national level. I will just put into context where the current laws are in place—and it is certainly not around the whole of Australia—what they look like and where they differ, because they are significant.

We have been provided information that, in 2008, the Council of Australian Governments (then known as COAG) entered into the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety to harmonise work health and safety laws across Australia and to develop a nationally uniform legislative framework. The model laws were developed in 2011 and have been implemented in all jurisdictions, including the commonwealth, with the exception of Victoria.

However, when adopting the model laws jurisdictions included some variations from the model, and some have made subsequent amendments. Consequently, WHS laws as they stand across Australia are not uniform at all. The laws in place in other jurisdictions, particularly around penalties, at the moment are varied. While there has been agreement to move towards a more uniform approach, it certainly is not in place at the moment.

In regard to the threshold issue, we have variances of reckless or negligent in the Northern Territory through to just negligent in Queensland, negligent in Victoria and, in WA, the threshold test is knowing that the conduct is likely to cause the death of or serious harm to an individual and in disregard of that likelihood. So if you look around the nation at the moment, there are effectively four different threshold tests.

If we then look further at the scope of who is covered, we have carve-outs for volunteers who are not covered by the legislation in Victoria, and we have an almost carve-out but for existing duties in the Northern Territory. Again, that is one of the concerns that was raised in the other place: that there does not appear to be clarity around this issue in terms of express words in this bill to clearly define whether volunteers are captured, are not captured, or if the intent is to capture or not to capture. That part has been missing and attention drawn to it through the process in the other place.

We then get to the penalty provisions and how they apply across the nation. We have differences, noting that the South Australian bill before us implies 20 years in prison or an $18 million penalty. In the ACT, it is likewise 20 years, but a sixteen and a half million dollar penalty. In the Northern Territory, it is life imprisonment or roughly an eleven and a half million dollar penalty. In Queensland, it is 20 years or a fifteen and a half million dollar penalty—so Queensland's legislation is probably the most similar to our legislation. In Victoria, it is 25 years or nineteen and a bit million dollars. So there is no consistency in terms of this legislation across the nation at the moment.

The question was put to the Attorney in the other place as to how they arrived on the numbers that they have. Again, his answer was reasonably understandable: this was the agreed position moving forward, and that WHS laws would be updated to have a penalty provision that looks somewhat similar across jurisdictions. Again, that is not the case as we stand at the moment. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT