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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-18 Daily Xml
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OCCUPATIONAL HEALTH, SAFETY AND WELFARE (PENALTIES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 31 July 2007. Page 572.)

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (16:10): I thank honourable members for their contribution so far on this important legislation. The approach of the bill as foreshadowed by honourable members varies and, indeed, three amendments have been filed. Although the government may have different views on some of the contributions and proposals put forward, I welcome the recognition that a review of the penalties under this act, and the introduction of a revised offence for more serious conduct, is appropriate.

However, I would like to respond to a suggestion that appears to have emerged from some quarters during the debate on this bill; that is, that the government has hidden objectives with this measure. Government objectives have always been clearly stated at every opportunity, both in this council and any other place: namely, to act on the recommendations contained in the Stanley report. This report was to conduct a comprehensive review of the penalty regime under the OHSW Act and develop a credible range of penalties and offences as part of an enforcement program for OHSW offences in this state, which would contribute to improving OHSW compliance and reducing incident and injury rates.

The need for a credible range of penalties as part of enforcement programs is clear from that report. A review of penalties applying within other comparable South Australian legislation, and OHSW legislation applying in other states, also supports the need to dramatically increase the maximum level of fines applying to corporations and the public sector under the act. Further, and significantly, the link between a credible deterrent and increased compliance is well demonstrated by research, and the proposed increase in maximum fines is part of that deterrent. The Maxwell report to the Victorian government in March 2004 entitled, 'Occupational Health and Safety Act Review', in chapter 35 summarises the case on this aspect.

I now turn briefly to each of the amendments proposed by members in this council, first of all opposition amendments. The Hon. Caroline Schaefer has put forward an amendment to clause 5 of the bill to amend the new section 59 offence provisions. The opposition has made a number of assertions about how such an offence provision will operate and has referred to a number of employer concerns regarding the proposed new offence of reckless endangerment in section 59(1). I am advised that many of the alleged unintended consequences are alarmist and are not a fair portrayal of how the provision would be applied.

It is true that the proposed offence does not replicate the approach found in section 32 of the Victorian Occupational Health and Safety Act 2004 as is favoured by some employer groups, but the proposed section 59(1) within the bill is directed at the same sort of conduct. As such, the new section 59(1) offence is designed to apply only to serious breaches of the act and to allow for the prosecution of individuals, officers and/or corporations where appropriate. It provides that a person must not knowingly or recklessly act in a manner that may seriously endanger the health or safety of another person.

We know that the opposition's amendment preserves the bill's coverage of both knowing and reckless behaviour and, unlike other amendments which I will refer to later, does not expressly require the death or severe injury of a person to trigger the offence. That much is consistent with the bill. However, this amendment has limitations which, if passed, would not be consistent with the existing principles of the OHSW Act. The phrase 'creates a substantial risk of death or serious harm' would still inevitably require a focus on the outcome of the workplace accident, that is, the resultant harm that has been caused to a person or persons rather than the focus on the seriousness of the conduct and the risk that was created by the behaviour.

The Hon Sandra Kanck has also put forward an amendment to clause 5 of the bill to amend the proposed new section 59 offence provision by creating a whole new offence provision. This amendment is similar in concept to an industrial manslaughter offence and is completely at odds with the recommendations of the SafeWork SA Advisory Committee and employer and union groups who provided submissions to the penalty review in 2006. It also makes actual death or serious injury a prerequisite to the operation of the offence, which is not consistent with the approach adopted within the bill or, more importantly, the act itself.

I now come to the Independent amendments. The Hon. Ann Bressington has also put forward amendments to the bill which contain a whole raft of proposals, some of which in the government's view are not directly related to the bill and appear to be more directed at workers compensation issues. Those amendments that touch on OHSW matters propose significant changes to parts of the OHSW Act that have not been the subject of appropriate consultation with stakeholders in the community to this point. The honourable member's amendment to the section 59 offence provision is again an attempt to introduce change that is contradictory to the recommendations made after extensive consultation that then led the government to put forward this bill.

The proposed amendment seeks to further narrow the potential field of operation of this offence and substitutes established concepts with alternative and untested replacements. As I have already stated, this bill and the changes it represents for OHS legislation have the support of many of the stakeholders and have arisen from continuing and detailed consultation by the government, SafeWork SA and the SafeWork SA advisory committee, including that conducted since the bill was first tabled in the other place in December 2006. The government is committed to constructive legislative reform and to pursuing this important reform to the OHSW Act, which we believe will result in better occupational health and safety outcomes and performance in our community. I commend this important bill to the council and look forward to the debate on specific clauses in committee.

Bill read a second time.

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