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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-06-05 Daily Xml
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WORK HEALTH AND SAFETY (SELF-INCRIMINATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 June 2013.)

The Hon. R.I. LUCAS (16:53): I rise to conclude my remarks from yesterday. I put a number of questions to the minister and I assume that if we are proceeding today the minister will have answers to those questions at either the conclusion of the second reading or at clause 1 of the committee stage, or else we do it tomorrow. There are two further issues I want to raise with the minister. The minister in charge of the bill in another place, in defending the government's position on the bill, said:

I have asked those who advise me to check whether there is any material difference in law between the use of the words 'natural person' and the use of the word 'individual'. They say that they are, in effect, interchangeable; that is the advice I have received.

On that basis he indicates that the government is moving the bill in its current form.

As I indicated yesterday, and I will not repeat the argument, there is learned legal opinion which argues strongly against that particular position. I am seeking, through the minister in this chamber, a response to the question as to specifically who has advised the minister in relation to this; that is, there is no material difference in law between the use of the words 'natural person' and the use of the word 'individual'. In particular, are we talking about SafeWork SA, are we talking about crown law—and, as I indicated yesterday, crown law evidently had not been consulted on the original drafting of the amendments when the debate was occurring last year—are we talking about private legal counsel or are we talking about ministerial staffers? I think it is important to know exactly who has given this particular advice because there is significant legal opinion that is arguing a contrary view.

The other issue was that, during the committee stage of the debate in the House of Assembly, the member for Davenport asked the minister, between the passage of the bill in the assembly and debate in the council, to consider providing further information about the three cases that SafeWork SA was claiming could not proceed, or might not able to proceed, as a result of the original drafting of section 172. The minister said:

The first one is that, yes, I will ask that there be some work done on that. The second point is the honourable member's last point about maybe it was...

He then went on to talk about the nature of the debate they had in the house. Further on, he says:

We will try to get an answer to the honourable member's question but, for the reason I have just explained, I think the answer to that question is a bit academic because, had there been no problem with the current wording, I assure the honourable member and everyone else that we would not be wasting all of your time by debating this here.

The minister did give the member for Davenport an undertaking to bring back some further information. The minister in this chamber in introducing the bill did not provide any further explanation in relation to this particular issue, and so I ask the minister whether she can provide answers to all of those questions either at the conclusion of the second reading or at clause 1 of the committee stage.

The Hon. J.A. DARLEY (16:57): I rise briefly to speak on the Work Health and Safety (Self-Incrimination) Amendment Bill. According to the government, it would appear that the current wording of section 172 of the Work Health and Safety Act could be interpreted as providing a privilege against self-incrimination to corporations as well as individuals. Clearly this was never contemplated by the government and there is some concern that the provision could seriously compromise future investigations into workplace fatalities and serious incidences. The amendment is intended to make it clear that the privilege against self-incrimination applies to individuals, that is, natural persons only.

Whilst the bill is arguably only technical in nature, it has caused a great deal of concern amongst stakeholder groups, particularly because they were not consulted over the proposed change. It is fair to say that my reaction was not too dissimilar when I first heard of the proposed change. I think it is fair to say that the current Minister for Industrial Relations was, at the time, unaware of the protracted history behind the Work Health and Safety Bill and the level of concern that any future changes would give rise to. That being said, since that time, the minister has consulted with the relevant stakeholder groups and proposed a number of ways of addressing this issue. I might add also that the minister's advisors were very quick to respond to this issue and dealt with it appropriately.

I know they certainly took the time to discuss the matter at some length with my office in order to ensure that all my concerns were addressed. Ultimately, the government has opted to settle on the use of the term 'individual' rather than 'natural person' because that is the term used throughout the Work Health and Safety Act to distinguish between a body corporate and a natural person. I am advised that overall the majority of stakeholders have indicated a preference for the use of the term 'individual' also. Obviously there are those stakeholders who would prefer that the bill not be amended at all, but that does not appear to be a viable option in this case.

As the Hon. Rob Lucas pointed out in his contribution, there is no question that I, along with the former minister, supported and, indeed, proposed amendments identical to that which resulted in the need for this bill, based on identical legal advice. I would have to agree with the Hon. Rob Lucas that it would appear that at that stage crown law advice had not been sought by the government with respect their own proposed amendment.

That aside, and in closing, I do not intend to oppose the bill, but I would appreciate it if the minister could clarify, for the record, how this provision would apply to sole traders who operate under a corporate structure. Further, can the minister confirm how SafeWork SA will go about conducting an investigation involving companies, and what warnings will be provided to persons who answer questions in their capacity as, say, an authorised officer?

Debate adjourned on motion of Hon. Carmel Zollo.

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