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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-31 Daily Xml
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WORK HEALTH AND SAFETY BILL

Committee Stage

In committee.

(Continued from 30 October 2012.)

Clause 13.

The Hon. R.I. LUCAS: I move:

Page 21, lines 4 to 6—Delete clause 13 and substitute:

13—Principles that apply to duties

It is the intention of the Parliament that in the administration of this Act regard must be had to the principles set out in this Subdivision.

I suspect that it would be more sensible if we have the substantive debate on the issue of control on my next amendment. Mr Darley has an amendment on the same clause, which is clause 17. They are obviously related issues, but the legal advice provided to me is that, whilst obviously the Liberal Party will be strongly urging support for the amendment drafted in my name, should the majority of the committee support the amendment drafted in the Hon. Mr Darley's name, this particular amendment could, if the committee so chose, be supported as well.

Put simply, all this amendment is seeking to do is to replicate what already exists in section 2(2) of the Victorian Occupational Health and Safety Act. It hinges, in part, on the view of trying to provide some guidance to the courts as to what the intention of the parliament was in relation to this controversial issue of control. Whilst the substantive debate on control will be under clause 17, clearly, it has been a prominent part of this whole debate with industry associations and the government. The government position has been that it did not want reference to the issue of control in the legislation at all. When one looks at the guiding principles of the officers who drafted the legislation for the government, it was a conscious decision to remove the notion of control from the legislation, contrary to the existing Occupational Health and Safety Act we have in South Australia.

Whatever the decision that is taken on the issue of control, it is going to controversial. The legal advice provided to the Liberal Party is that, as occurs in Victoria, an amendment along the lines of this amendment to clause 13, which simply says that it is the intention of the parliament that in the administration of this act regard must be had to the principles as set out in part 2, division 1, subdivision 1, further reinforces the importance of what the intentions of the parliament were in relation to these issues.

As I think I highlighted last evening when we were debating other clauses, it is my view that the true impact of this legislation will not be felt for five years or so. It will not be an issue on day one something happening or, indeed, month one or six months down the track because it will be established ultimately by court decisions and, as we have seen in this jurisdiction, it will be a period of years that courts and tribunals will interpret their view of what the legislation says, which may or may not be consistent with the views of the majority of people in the parliament that passed the legislation.

As one amendment to try to, I guess, assist the courts in their process of making sensible decisions in relation to what will be difficult legislation to interpret, the suggestion is that the Victorian provision has been useful according to lawyers practising in the Victorian jurisdiction and in the South Australian jurisdiction, and it is for those reasons that I move the amendment standing in my name.

The Hon. R.P. WORTLEY: We oppose this amendment. The existing subdivision sets out the principles that apply to all duties that persons have under the act as parliament intends. Therefore the amendment adds no value to the bill, so we oppose it.

The Hon. D.G.E. HOOD: I would like to put on the record that Family First supports the amendment. This is really one of the key issues in this bill that has been expressed with great concern to me by various industry sectors over many, many months that this bill has been in the public arena for debate.

There is genuine concern in the community, amongst business in particular, about exactly how this will be interpreted in the years ahead; and I think that the Hon. Mr Lucas makes the salient point to this particular amendment and clause in the bill, that is, quite simply it is not really expected that what will unfold in the next few weeks or months could be the great danger but how it will be interpreted in the years ahead. What is being moved here simply serves to tighten that up, and for that reason we strongly support it.

The Hon. B.V. FINNIGAN: I oppose this amendment. I understand what the Hon. Mr Lucas is trying to do but I think that what he would be doing is opening up a lawyers' picnic because the wording of his amendment is 'in the administration of this act regard must be had to the principles set out in this subdivision'. So, 'administration' is going to be taken as a pretty wide term; and to say 'regard must be had', well, by whom, in what circumstances and how did they have regard?

One could imagine the sorts of cases that would end up being run asking what was meant by 'administration' and what was meant by 'regard must be had'. In what specific way was regard given to the principles in this subdivision and what does 'administration of this act' mean? Obviously, as in any issue about what a statute means, there is going to be the common law and various understandings coming to it, but I really think that this wording proposed here would open up a much wider front rather than constricting it as the honourable member intends.

The Hon. T.A. FRANKS: Given that we have noted that the substantive debate on this issue will occur with future amendments, I indicate that the Greens will oppose this amendment.

The Hon. J.A. DARLEY: I will be opposing this amendment.

The committee divided on the amendment:

AYES (9)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J. Wade, S.G.
NOES (10)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Hunter, I.K. Kandelaars, G.A.
Maher, K.J. Parnell, M. Wortley, R.P. (teller)
Zollo, C.
PAIRS (2)
Lee, J.S. Vincent, K.L.

Majority of 1 for the ayes.

Amendment thus negatived; clause passed.

Clause 14.

The Hon. R.I. LUCAS: Clause 14 provides that 'a duty cannot be transferred to another person'. The government deal with the Hon. Mr Darley is that a new clause 17, which we will come to in a moment, is to be inserted. It provides:

A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

Can the minister explain to the committee how the amendment he proposes to support, which states 'or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity', is consistent with clause 14, which provides that the duties are not transferrable? Can he explain that to the committee?

The Hon. R.P. WORTLEY: There is a basic principle that applies within all occupational health and safety laws, and that is that duties are not transferred to another person. I will be talking about this later on in clause 17, I believe, so if we need any substantial debate we can have it then. The underlying basic principle of all occupational health and safety laws is that duties cannot be transferred to another person.

The Hon. R.I. LUCAS: I understand that is what this particular clause says, but I am asking the minister how that is to be read and how that is consistent with the amendment the minister is going to support in clause 17, which says:

...or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

My question to the minister is: how is that clause which he is going to support consistent with this provision which he says is a long-held one: that is, you cannot transfer a duty to another person?

The Hon. R.P. WORTLEY: If more than one person holds the duty, then each person retains responsibilities for their duty and they must, in accordance with clause 16, discharge their duty to the extent that they influence and control the matter and must consult, cooperate and coordinate with other duty holders.

The Hon. R.I. LUCAS: I understand that, but that is not the question that I have asked the minister. Clause 14 says you cannot transfer a duty. I am just asking the minister about the amendment that he is going to support in clause 17 which says:

...or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

What you are talking about there is entering into an agreement or an arrangement which limits or removes a capacity of a person to comply with subsection (1) of 17.

I am seeking clarification from the minister as to how that is to be read in the context of this clause which we are about to pass which says that you cannot transfer a duty, you cannot come to an agreement or an arrangement with anybody else to transfer a duty away. That is what clause 14 is saying. What I am saying is: is the amendment that he is supporting in clause 17 consistent with that?

The Hon. R.P. WORTLEY: Supporting the amendment would mean that we are actually confirming that you cannot enter into an agreement to transfer your duty. It is as simple as that. You will have no right to transfer your obligations or your duties by entering into an agreement.

Clause passed.

Clause 15 passed.

Clause 16.

The Hon. R.I. LUCAS: I think the minister just obliquely referred to this particular provision. Does the minister accept that, in relation to a particular worksite, a number of people can have either a similar or a same duty in terms of the safety towards a worker or a number of workers?

The Hon. R.P. WORTLEY: Yes, that is right.

The Hon. R.I. LUCAS: Does the minister therefore accept, if that is the case, that each one of those PCBUs, for example, that might have a duty towards a worker or a group of workers has to go through the processes that satisfy this legislation in terms of their own occ health and safety policy and whatever the other requirements in the legislation are, so that each of the separate and multiple PCBUs will have to go through that process in accordance with the provisions of the legislation?

The Hon. R.P. WORTLEY: That is right, but we will have a table when we get to clause 17 which will set out some examples on that.

The Hon. R.I. LUCAS: I thank the minister for clarifying that, because one of the criticisms the minister has made of the consultants who put work together for the industry associations was that:

...it is clear that what they have done here is replicate the figures for the same risk controls for each and every separate trade on site. This is ludicrous and suggests on-site inefficiencies in the planning and management of the work to the utmost limit.

What the minister is there complaining about is that the consultants have actually said that each of the separate PCBUs in relation to the separate trades on site has gone through an estimate of what risk controls they have to enter into and has put a cost on that particular occ health and safety assessment and risk control. What the minister has just confirmed is that under this particular clause multiple PCBUs have responsibilities. What he has just confirmed is that multiple PCBUs each have to comply with the act and, even though their risk controls may well be the same or similar, they nevertheless have to comply with the legislation.

So, if you are on a work site and, for example, you have employed a plumber to come in and do the plumbing work, a carpenter and a landscape gardener, or whatever else it might happen to be—completely separate tasks and completely separate subcontractors—these people are self-employed contractors and are coming on to those sites. The contractors or subcontractors will have to ensure, in terms of their safe work method statements or their occ health and safety policies, or whatever else it is, that they go through the assessments in accordance with the legislation for that particular work site.

The carpenter, the plumber, the trencher, or whatever it happens to be, will all have to do it. They may all end up with very similar (not exactly the same but very similar, because it is the same work site) occupational health and safety policies, or whatever else it is, but they are separate PCBUs. The minister seems to have the view that, because you might have a project manager or something like that, that absolves the individual contractors from any requirements under the legislation.

The legal advice makes clear that that is not the case. As the minister just acknowledged, multiple PCBUs can have the responsibility for the same work, the same work site or the same duties under these provisions. So, whilst the project manager off-site may well have responsibilities, and directors of the company may well have responsibilities as well under the legislation, as these individual operators come and go from the site they will have to do their own assessments as well.

I wanted to place on the record that the minister has now confirmed, in response to his answers earlier, the reasons why the consultants and others, when they have done these assessments may well have replicated risk controls for a number of different people on the same site because that is the requirement of the legislation.

The Hon. R.P. WORTLEY: There are fundamental principles with regard to this issue. You can have a thousand different examples, but the principles are the same. More than one person can have a duty. If duties are held concurrently, each person retains responsibility for their duty in relation to the matter and must discharge that duty to the extent to which the person has the capacity to influence or control the matter. The capacity to control includes actual or practical control. Where a duty holder has a very limited capacity to control or influence that factor, this will assist in determining what is reasonably practical.

Clause passed.

Clause 17.

The Hon. R.I. LUCAS: I move:

Page 21, after line 29—Insert:

(2) However, a person who does not have direct control of a particular risk to health or safety does not have a responsibility for eliminating or minimising that risk so far as is reasonably practicable.

There are a number of issues to raise under this clause. I intend at the outset to address the general issue of control, which the Hon. Mr Hood has indicated has been one of the most controversial issues in the legislation. The minister indicated last night that issues in relation to the Salvemini case are appropriately raised under this clause. So, after everyone has had a general discussion, I did want to raise the Salvemini case before we vote on the various amendments. I think there was one other issue, I am just checking the Hansard. The minister indicated last night that clause 17 was the appropriate clause to raise another issue as well, and I am just checking the Hansard because I have forgotten exactly what that issue was.

The Hon. R.P. Wortley: Safe work method statements.

The Hon. R.I. LUCAS: Method statements; that is right. I have raised that issue as well, and I think that has been the subject of some discussion between the government and the Hon. Mr Darley in terms of how that was to operate. Having moved my amendment, I wanted to make some general comments based on legal advice that has been provided to the Liberal Party, and others, in relation to the control issue. In introducing some of these comments and commentary from people who have been following this debate closely, the first point I note is that, as I said, this issue has been one of the most controversial aspects of the legislation.

The government's position has been, until the last couple of weeks, that the bill could not be amended, would not be amended. The government has now moved from that position to say, 'Okay, it's okay to amend it. The government amendments are okay, they don't offend against the principle of harmonisation. Any Liberal Party amendments are not okay because they would offend the principle of harmonisation.' It is an interesting characterisation of amendments: Labor amendments (or the ones they support) are goodies, Liberal amendments are baddies because they would offend against the principle of harmonisation.

So, control is a critical issue. There have been a number of commentators, and I want to put on the record some commentary. First, some legal opinion from a barrister, Rick Manuel, from Wright Chambers, dated June of this year, relating to the control issue. I will refer to some advice from Dick Whitington QC, who featured prominently, in terms of his advice, yesterday and last evening. I will refer also to some commentary from the Independent Contractors Australia in relation to this whole control issue. I refer, firstly, to the Independent Contractors Australia view expressed under the heading, 'Harmonisation of Australia's OHS Laws'. The first section is: 'Control' is the key:

The international principle for OHS legislation is that all parties at work are held responsible for what they 'reasonably and practicably control'. The concept was developed in Britain in the 1970s (it is typically referred to as 'the Robens principles') and has since been formalised in International Labor Organization Conventions to which Australia became a signatory in 2004.

The existing SA Act was conceived during the 1980s and applied the principles of 'reasonable, practicable control' in a particular way. The legislators who framed the SA Act did what was normal at the time in Australia (and the developed world) and used the employer-employee relationship to identify 'control'—that is, under common law the employer has the 'right to control' the employee. Therefore, the employment relationship conveniently identified 'control' for the purposes of OHS. The Act inserts the terms 'reasonably, practicable' alongside 'control', therefore making the Act consistent with the Robens principles.

It then quotes section 19: Duties of employers. It then states:

The Act further allocates obligations to employees. The Act does not qualify the employees' duties with 'control', presumably because it's assumed that employees exercise direct control over the work they are doing at any time.

The advice then refers to section 21: Duties of workers, and I will not repeat that. It then comments:

The Act also allocates obligations to self-employed people, but then makes specific reference again to employers and their obligations to people who are not employees. This is because employers do not have a 'right to control' people who are not their employees. The Act inserts the term 'under the management and control of' specifically to identify that obligations apply to people who have control of the work.

It then refers to clause 22: Duties of employers and self-employed persons. I will not read that out. It then comments:

This is the status quo of the SA OHS Act. People are held responsible for matters they control:

Employers: to employees because common law under the employment relationship denotes 'control';

Workers: to themselves and others because they personally 'control' their work;

Self-employed people: to themselves; and

Self-employed people and employers: to anyone else where the self-employed person or the employer has 'control'.

Suppliers and others also have responsibilities over matters they control where they supply equipment for example, and so on. This is specifically referred to in the SA act.

Allocating responsibility for work safety according to what people 'control' is common sense, but it's also a matter of criminal law.

'Control' being central to OHS responsibilities under law has more than two decades of legal certainty behind it, having been repeatedly tested in the courts. It is known and it is certain.

'Control' means people understand when they are responsible. If they control something, then they are responsible. This is how it should be. 'Control' directs and motivates their behaviours toward being safe. There is no confusion.

What happens when the term 'control' is removed?

What has driven the OHS harmonisation push across Australia is that, around 2001, NSW amended its OHS laws, effectively removing 'reasonable, practicable control' as the identifier of responsibility. The result was that, over a decade, many people in NSW were prosecuted and convicted for matters over which they had no control.

I note here the advice is that over 10 years these court decisions established the problems in New South Wales. One example is as follows:

One example was that of a NSW plumber who installed a hot water safety valve in a nursing home. The valve failed and an elderly woman was badly scalded and died. It was found that the valve failed due to a microscopic, hairline fracture in the internal sealed workings of the valve. However, the plumber was prosecuted and convicted.

I interpose there to state that this is a valve that a New South Wales plumber had used, properly authorised and approved, but ultimately it had tragic consequences. However, the cause of the tragic consequence was a microscopic hairline fracture in the internal sealed workings of the valve and yet the plumber who installed it was prosecuted under occ health and safety laws by the equivalent of SafeWork SA in New South Wales, and convicted under those laws. The court found that the plumber had installed and maintained the valve correctly. The court did not find that the plumber had installed the valve incorrectly at all.

The court found that the plumber had done everything right and had installed and maintained the valve correctly and had done everything possible that was within his control and stated that:

...he had done everything possible that was within his control. He was blameless. Yet the court said that the wording of the NSW OHS Act required the court to convict the plumber.

There were many other examples but I will not waste the time of the committee in relation to the problems that eventuated in some jurisdictions when governments moved away from this issue of control, which has been a central feature of the legislation in South Australia for decades. No wonder there was major concern when premier Rann and then Premier Weatherill and minister Wortley and previous ministers decided all of a sudden that they were going to throw out decades of precedent and law in relation to this issue and go down the path of convicting plumbers who install valves that result in tragic circumstances which are clearly beyond their control.

This is why the central feature of control is such an important matter. It is of great concern that this minister (and previous ministers) have just been unable to grasp the concept that control is a critical issue. If someone has control of a safety issue then they should be held responsible and accountable. However, like the poor old New South Wales plumber in the nursing home, if you are not actually in control why should you be held responsible; why should you be prosecuted and why should you be convicted? That is what has driven this whole debate in relation to the control issue.

The Liberal Party is obviously moving its amendment but the government, the Hon. Mr Darley and others may well be supporting a different amendment in relation to these issues. I address my comments to both amendments. The very strong advice from Dick Whitington QC, and a number of other legal authorities (supported also by legal officers working for various industry associations), is that the clearest and best amendment in this particular area, now that there is to be some amendment, is the amendment that has been drafted by Dick Whitington QC and which has been endorsed by virtually all of the industry associations and others who have been lobbying on this particular issue.

I have outlined the importance of this control issue being in the bill, but at the outset I outline that the Liberal Party's position is that we very strongly support the amendment and will seek to have it included. Should we be unsuccessful, the view of the industry associations is that the amendment moved by the Hon. Mr Darley is at least a marginal improvement on the bill. It certainly does not resolve the issues for the industry associations and other legal authorities that have advised on the bill, but they believe it is at least a step forward from the government's original position. So from our viewpoint, if the numbers are there we will not oppose the amendment supported by the government and being moved by the Hon. Mr Darley. As I said, we intend to test the parliamentary vote in relation to our amendment.

The advice from Rick Manuel, a barrister in the industrial jurisdiction, goes for eight pages. I do not intend to read all eight pages of the opinion but, if I can summarise, Rick Manuel's position is that he supports, for similar reasons as those I have already put on the record from the Independent Contractors Association, the historical importance of control as an issue in this area. He quotes various cases, and supports the Whitington-drafted amendment as being the most appropriate amendment. He then makes some other comments (which I do want to put on the record) in relation to the control issue and these amendments. He says:

You have requested whether I had any other views as to the issue of control in the legislation. I think it is appropriate for some form of control to be established before establishing criminal responsibility regarding safety matters. Under the new legislation there will remain some level of uncertainty as the existing body of precedent is unsettled and in the case of influence until such time as a new body of precedent is developed—

I interpose there that influence is now no longer an issue, given the most recent amendments. His advice continues:

My first comment is to query why the new test is necessary. There is little argument that current legislation works effectively with the occasional level of disagreement between defence and prosecution. Part of the reason for this is that despite some drafting problems with the current legislation there is a significant amount of jurisprudence which can be relied upon by interested parties to determine their obligations. It would be unfortunate if, as a result of using fundamentally different wording, this jurisprudence was lost. It would then be a matter of waiting for the almost certain increase in litigation to re-establish a jurisprudential foothold. The increase in litigation will be to no-one's benefit.

I interpose here that this is a point that has been made earlier; that is, it will be a number of years. We have had years of industrial precedent in this jurisdiction under the existing act; because that is all being turned on its head by the new act, those who practise in the field say that it will take some years to establish the new jurisprudence precedence, as highlighted by Rick Manuel's opinion, to help guide both the prosecution and defence in relation to potential offences under the legislation. His second comment is as follows:

My second comment raises the first: it is intended that state courts will apply jurisprudence created in other states. Although the new legislation is intended to be cohesive amongst the states, the plain fact of the matter is that it is not. This makes it far more difficult to argue for the adoption of decisions from other states.

Again, I interpose to say that what Mr Manuel is pointing out there is that, contrary to the claims of the minister, this was to be harmonised legislation across all the jurisdictions. It is not. Victoria has not introduced the bill, Western Australia has not introduced the bill, South Australia is now amending the bill, New South Wales has amended the bill, and Queensland and the Northern Territory are flagging that they potentially are amending the bills as well. Mr Manuel's third and final comment is as follows:

My third comment, and it is not intended to be controversial, is that there seems to have been a general failure to appreciate the purpose of safety. In colloquial terms, everyone wants a worker who goes to work in the morning to come home safe and well in the evening. The best way to achieve this is education, but the major focus in this state is on prosecution. As a consequence, perhaps the best option is to include a provision that requires a focus on training, auditing of machinery and systems, and the situation where an employer can feel free to contact the authorities without the fear of being prosecuted.

I guess that is a comment not directly related to any particular amendment or provision in the bill. For those general reasons, as I have said, later on in this debate and before we vote on these amendments, I do want to raise the Salvemini case and also the safe work method statements, but at this stage I will conclude my comments.

The Hon. J.A. DARLEY: I have some questions for the minister. Members would know by now that my support for this bill has, in part, been based on certain undertakings by the government with respect to various aspects of this bill. In particular, the government has agreed to provide clarity around the issue of safe work method statements and regulations concerning high-risk construction work.

In relation to the safe work method statements, I understand that the government is willing to accept pro forma documents, with provision for addendum. This will extend to, for instance, employer groups being able to provide their members with a template that may be used by and adapted to suit the individual needs of a business. Can the minister provide confirmation of this, and can the minister also provide details of any other requirements with respect to safe work method statements?

In particular, can the minister confirm the intent of clause 301 of the model regulations? I understand that some sectors of the building industry are concerned that each time a change is made to a safe work method statement, they will effectively have to stop work on a project in order to have the principal sign the relevant safe work method statement.

On the second issue, can the minister confirm that the government has agreed to amend clause 291(a) of the model regulations so that high-risk construction work is defined as involving a risk of a person falling more than three metres, as opposed to two metres, as originally proposed?

The CHAIR: The Hon. Mr Darley, will you be moving your amendment? The Hon. Mr Lucas has moved his amendment; you have an amendment.

The Hon. J.A. DARLEY: Yes, I will be moving my amendment.

The CHAIR: Would you like to do that now, just to assist the committee, especially the Chair?

The Hon. J.A. DARLEY: I move:

Page 21, after line 29—Insert:

(2) A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

This amendment relates to the issue of control. Clause 17 of the bill provides that a duty imposed on a person to ensure health and safety requires the person to eliminate or, if it is not reasonable to eliminate, to minimise risk to health and safety so far as reasonably practicable. What is meant by 'reasonably practicable' is defined in clause 18.

This amendment is intended to make it clear that a person is required to comply with these provisions to the extent to which the person has the capacity to influence and control the matter (that being the risk), or would have the capacity but for an agreement purporting to limit or remove that capacity. The amendment is intended to address concerns raised by industry groups regarding the absence of any direct reference to the issue of control in the bill without deviating from the current understanding and judicial interpretation of that term.

The question of whether or not it should be explicitly referred to in this bill is addressed extensively as part of the national review into model occupational health and safety laws. That review, as we know, arose as a result of the then minister for employment and workplace relations, the Hon. Julia Gillard MP, convening a panel to report to the Workplace Relations Ministers Council on the optimal structure and content of a model OH&S act that would be capable of being adopted in all jurisdictions.

The panel considered the issue of control in at least three different contexts relevant to this discussion. Firstly, it considered whether control should be a consideration in determining what is reasonably practicable; secondly, whether control should be included in the definition of 'reasonably practicable'; and, thirdly, whether control should be defined as a separate issue.

In relation to the first two considerations, the panel determined that 'reasonably practicable' represents what can reasonably be done in the circumstances and that an inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything or it is not reasonable to expect them to do so. This view is consistent with authoritative appeal court decisions that have ruled that control is relevant in determining what is reasonably practicable.

For the benefit of members, the court decisions I refer to are: High Court of Australia in Baiada Poultry Pty Ltd versus the Queen 2012; Supreme Court of Western Australia in Kirwin versus The Pilbara Infrastructure Pty Ltd 2012; Supreme Court of South Australia in Complete Scaffold Services Pty Ltd versus Adelaide Brighton Cement & Anor 2001; Supreme Court of South Australia in Candetti Constructions Pty Ltd versus Fonteyn 2012; High Court of Australia in Articulate Restorations and Developments Pty Ltd versus Crawford 1994; and Victorian Supreme Court in R versus ACR Roofing Pty Ltd 2004.

The panel raised concerns about the possibility of an express reference to control in a definition of 'reasonably practicable' leading to a focus on that particular issue ahead of all other factors noted in the definition and the possibility of duty holders attempting to avoid their duties by artificial arrangements. It is on these bases that the panel recommended that control not be included in the definition of 'reasonably practicable'.

In relation to the question of whether control should be defined as an entirely separate concept, the panel explored five different options. They were:

that the term be underlined and therefore very broad subject to the interpretation of the courts;

that the term be defined in the model act by stipulating the characteristics that together represent control;

that the term in the model act be very wide but with specific exclusions;

that the term be very wide but with specific characteristics of elements included; and

that the term be defined in the model act by what it excludes and what is excluded.

The panel ultimately recommended that the term 'control' not be defined in the model act for the following reasons, and I quote:

1. While there has been inconsistency in the interpretations by the courts of the term, we consider this has to a significant degree arisen from the numerous uses to which the term has been put in OH&S legislation. The approach that we have recommended be taken to the duties of care has limited the uses to which the term is to be put. This should allow the courts to define and apply the term consistently under the model act.

2. The courts have been sufficiently consistent in their interpretations of the term in the contexts in which it would be used in the model act for duty holders to have confidence in how it will be interpreted and applied. We expect that it would be applied consistently with our conclusions...in our discussion of the case law.

3. There is considerable force in the concerns raised with us about the difficulty in providing a definition that would be sufficiently clear and applicable to all circumstances, while not narrowing what should be the wide scope of 'control'.

The panel considered the following elements to be clear from the case law and applicable to the uses that it proposed for 'control' in the model act:

'control'...must it seems to us, have about it the sense of not mere 'sway', 'checking' or 'restraint' but rather controlling in the sense of 'directing action' or 'command'—the ability of the person to compel corrective action to secure safety... control may be present where the person has an exercisable legal ability or the practical ability to direct the conduct of another;

control may be found not to exist where the person has an exercisable legal ability or the practical ability to direct the conduct of another;

control may be found not to exist in a principle over the expert activities of a contractor where the principle does not possess the necessary expertise to exert influence, and;

more than one person may have control over the relevant matter at the same time.

As I mentioned earlier, the absence of any direct reference to the issue of control has been one of the most contentious issues surrounding this debate. There has been a lot of toing and froing in terms of coming up with a position that addresses the concerns of industry without significantly narrowing or restricting the scope of duty holders and compromising the core provisions of the bill. I believe the proposed amendment achieves this. It provides clarity; however, it is not intended to derogate from the current judicial interpretation of control. It is, if you like, an avoidance of doubt clause.

In recent weeks there has been a lot of discussion around the issue of control in the context of the recent decision of the Full Court of the Supreme Court of South Australia in Baker v Markellos, now often referred to as the Salvemini case. For those members who are not aware, Jack Salvemini died tragically while working as a deckhand on a fishing vessel owned by Jean Bryant Fisheries Pty Ltd. Both Mr Markellos, in his capacity as a self-employed skipper, and Jean Bryant Fisheries were prosecuted for and found guilty of breaching their respective duties under the Occupational Health, Safety and Welfare Act.

Mr Markellos appealed against the decision on the basis that he was an employee of the company and not self-employed, as argued by the Crown, and his conviction was quashed. That decision was the subject of appeal before the Full Court. Without going into too much detail, the court held that the essential element of the offence, that the defendant was a self-employed person, was not proven beyond reasonable doubt. As such it was open to judges of the Industrial Relations Court to conclude that Mr Markellos was engaged by Jean Bryant Fisheries under a contract of employment.

The Salvemini case is a good illustration of the fact that we have moved away from the traditional employer-employee relationship and that our current laws, to some extent, are inadequate in dealing with more complicated working arrangements. Indeed, I have continued to raise this case as an example of the need for legislative reform on behalf of Jack's parents, Mr Lee and Mrs Carol Salvemini, for some time now. That said, this case was far from straightforward and the question of whether or not a prosecution against Mr Markellos either in his capacity as a self-employed person or as an employee would have resulted any differently under this bill is open to debate.

There is no question that the Crown may have tackled the charges differently under this legislation or that they would still need to prove beyond reasonable doubt each element of the charge against an individual in their capacity either as a PCBU or as a worker. However, my advice is that many of the technicalities that currently exist in our laws could be overcome under the proposed bill. I would be interested to hear any comments that the government may have to make on this matter, particularly if they have sought advice on the Salvemini case.

Before finishing, I think it would be useful to refer to another recent South Australian decision of the Full Court of the Industrial Relations Court: Candetti Constructions Pty Ltd v Fonteyn, which deals more directly with the sorts of concerns that have been raised regarding the issue of control where principles and subcontractors are involved. Candetti Constructions was convicted and fined for failing to safeguard an opening in a ceiling through which an employee fell. The Full Court dismissed the appeal against the conviction relating to a single judge's decision upholding the ruling of an industrial magistrate.

In a 2-1 majority, the court accepted that a principal's obligation to take reasonably practicable steps to ensure the safety of a contractor's employee does not extend to a general obligation to supervise the manner in which a specialist contractor goes about the performance of the work it has been contracted to do.

Further and importantly, a principal does not have an obligation to ensure the safety of a contractor's employees where the matter in issue is associated with the function of a specialist contractor of which the principal has no expertise. Rather, the principal is only responsible for ensuring the safety of such employees in respect of matters over which it has actual control in the sense that it is managing and organising those matters.

These findings are consistent with the recommendations of the OHS Review Panel and the policy of Safe Work Australia in that the bill is not intended to hold individuals accountable for matters which are beyond their control, nor does it impose an absolute duty on a PCBU to ensure that no harm is caused to another individual. The issue of control must be considered in light of what is reasonably practicable in the circumstances.

Businesses will be able to achieve compliance by taking reasonable steps that other businesses in their position would take. However, this does not extend to taking every possible step that could be taken. As stated in Safe Work Australia's interpretive guidelines, it is a matter of weighing up all the relevant factors and reaching a balance that will provide the highest level of protection against injury. I think this is a very important point in terms of clarifying what is expected of businesses. With that, I urge all honourable members to support this amendment.

The Hon. R.P. WORTLEY: I would like to thank the honourable member for his amendment and also a number of questions he has asked which I will start to answer right now. In relation to the issue of control, there has been considerable debate and misinformation about the use of safe work method statements, and I thank the honourable member for raising this issue.

A safe work method statement is simply a work plan that is used to identify hazards and risks involved in the work and the control measures that need to be put in place to ensure that work is undertaken safely. These are not complicated documents, and there are no issues or concerns in workplaces using a template document which is freely available either through SafeWork SA or employer associations.

Typically, many employer associations provide template documents to their members. This is certainly the case with the Master Builders Association in South Australia, which provides template documents and guidance on how to use safe work method statements to its members now. Similarly, the Housing Industry Association of Australia is working with Safe Work Australia to prepare a work method statement with specific application in residential construction.

A safe work method statement is required for high-risk construction work such as working from heights. Importantly, I acknowledge the concerns that have been raised by industry groups in South Australia and agree that the height threshold for safe work method statements in the South Australian work health and safety regulations will be raised from two metres to three metres. This will obviously limit the work situations where safe work method statements are required.

I should also add that a new safe work method statement is only required when the risk to workers changes. In other words, if the work activity is repeated and the risks are the same for similar situations, the control measures outlined in the safe work method statement will not change, and there is no need for the PCBU to prepare a new safe work method statement every time the work activity is repeated. Indeed, if circumstances change and additional risks are encountered, these can be accommodated by way of an addendum to the safe work method statement without the need to produce an entirely new document.

I would like to thank the honourable member for the proposed amendment to clause 17. I acknowledge that the proposed amendment will provide greater clarity and certainty to the extent of the clause and as such I support the proposed amendment. Members of this committee will agree that it is important to assist duty holders in understanding their legal obligations and that the duty is qualified to the extent that they have the capacity to influence and control the matter. The proposed amendment provides the certainty that businesses in South Australia have been asking for and it is for this reason that the government supports the proposed amendment.

To further help businesses in regard to this, I have asked SafeWork SA to prepare an example of how the principle of control might apply in practice. SafeWork SA has developed a hypothetical example of a workplace with multiple duty holders, and I will table that shortly. This document is not a legal interpretation but rather provides a simplified representation of interrelationships that may occur in certain work situations. It provides a helpful example that reflects the intent of the proposed amendment. I table that document.

The Hon. R.P. WORTLEY: With the Markellos prosecution, would the work health and safety laws have assisted in this issue? The Crown Solicitor's Office is of the view that the bill closes a loophole. The definition of a person conducting a business or undertaking is much clearer than the narrow options in the current act of 'employer' and 'self-employed person'. The term 'self-employed person' is not even defined in the current Occupational Health, Safety and Welfare Act 1986.

In addition the Work Health and Safety Bill makes it far easier to prove someone is a worker, a far broader concept than in the 1986 act definition of 'employee'. It is not necessary to prove what type of worker is someone, only that he or she is a worker. Finally, clause 29 of the bill, other persons at the workplace could be charged as an alternative if there was doubt about someone's status either as a person conducting a business or undertaking or as a worker. The bill's definition arises from the workplace economic arrangements that are common today and not those in 1986.

With regard to the Hon. Mr Lucas: his amendment seeks to include a control test. The bill does not contain any specific definition of 'control'. It establishes a primary duty of care, which requires the duty holder to ensure, so far as reasonably practical, the health and safety of any workers that they have the capacity to influence or direct in carrying out work. The incorporation of the standard of 'reasonably practical' in the duty will provide a consideration of control in relation to compliance. If a duty holder does not have control over an activity or a matter relevant to health and safety, then it cannot be reasonably practical for the duty holder to do anything in relation to it.

If the control able to be exercised by the duty holder is limited, then that limitation will be relevant to determining what is reasonably practical for that duty holder in the circumstances. An advantage to this approach is that any focus on control occurs when considering compliance, at which time the focus is on effective management of risk rather than on whether a duty of care exists and the parameters of it.

The substantive provisions of the bill include the duties of care, which have been the subject of extensive consultation at both local and national levels, and the primary duty, as currently drafted, has formed part of the model Work Health and Safety Act since its early drafting. The Workplace Relations Ministers Council agreed that should not be a control test in the model Work Health and Safety Act. Those who argue against including control as a determinant of the duty holder or the extent of their duty assert that existing duties of care that include reference to control that can encourage a focus of avoidance of control to avoid the duty rather than on the practical compliance measures taken to meet the relevant duty.

I undertook quite considerable consultation with the business sector. I had a meeting of all business organisations in my office during our negotiations, and they were satisfied with a clarifying clause, 17(2), in regard to the control. This is what Mr Darley's amendment is doing. The business sector at no time during our meeting insisted on a control test. They were quite happy with a section there which clarified the issue of control. The Hon. Mr Darley during negotiations came up with a form of words that the government was quite happy to accept, and this provides clarity in regard to control. So, there is a big difference between what the Mr Lucas is putting to us with regard to introducing a control test and the clarifying amendment we are going to support.

The Hon. R.I. LUCAS: I never cease to be amazed. That has to be, and there are many contenders, the most unbelievable convoluted explanation of the government's change of position that I have ever heard from this particular minister. I will just clarify, so that I and all other members can actually understand what we think we have just heard. Is the minister saying that this amendment being introduced as supported by the minister is not a control test?

The Hon. R.P. WORTLEY: It is a clarification. It is as simple as that: it is a clarification.

The Hon. R.I. LUCAS: I heard those words. The minister is saying it is a clarification. He does not want to say that this is a version of a control test. The Dick Whitington QC version of a control test is the version that the industry associations, the Liberal Party and others will be supporting. As I have said earlier, we do not believe the version of the control test being moved by the Hon. Mr Darley is the one that should be endorsed by the parliament, but ultimately the numbers will determine that, or not.

For the minister to stand up in this council and say that the amendment he is now going to support is not a form of a control test, and the reason why he is trying to say that is because so far he has been going to select councils of ministers arguing, 'We won't support a control test' and now he is saying, 'Well, this is not a control test.' He is saying that the amendment which the Hon. Mr Darley has moved, which states:

A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity...

etc., is a clear indication, albeit we do not believe as good as the Whitington control test, of the introduction of control into the bill. The existing clause 4(2) of the Occupational, Health and Safety Act—I will not read the first four lines of that subclause—which is the governing control test in the existing act, provides:

...but the principal's duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.

That is the control test under the occupational, health and safety legislation referred to by Dick Whitington, Rick Manuel and all of the other legal commentators and experts in relation to this as the control test, with decades of precedent as the control test. We have moved our particular amendment which Dick Whitington drafted, which states:

However, a person who does not have direct control of a particular risk to health or safety does not have a responsibility for eliminating or minimising that risk so far as is reasonably practicable.

We have included both elements of the essential control test; that is, control and the reasonably practicable element, which is consistent with the existing position. The Hon. Mr Darley's amendment also refers to the control. Yet, what the minister is trying to have us believe is that this is not a version of a control test, it is a clarification of the issue of control. The absurdity of the minister's argument in relation to this particular issue is there for all to see. There would not be a practitioner in the field who, when the minister's comments will be circulated in the coming hours, will agree with what the minister has just claimed, on behalf of himself and the government, in relation to this issue.

This is a central feature. What the minister is trying to get around is this issue that Labor amendments are good and Liberal amendments are bad for the bill; that is, Labor amendments are consistent with the core principles of harmonisation. One of the core principles of harmonisation was that there was not going to be a control test, as the minister and the Hon. Mr Darley read out from the officers who reviewed all of this. They decided, for whatever bizarre reasons they had, that they believed you should get rid of the control test. You should end up in a situation such as in New South Wales where a poor hardworking plumber was prosecuted because a valve was faulty.

He had no control, no responsibility, but the occ health and safety law found him legally liable and prosecuted him because that is what the occ health and safety law said—it did not have this control test or issue in it. As I said, for some bizarre reason, officers (the equivalent of SafeWork SA) and others around Australia believed that this was a good test, a good principle to be followed, and that we should incorporate it into the national harmonised occ health and safety laws.

The minister is running around everywhere saying, 'We're amending the bill but we're not really offending against harmonisation. It's only Liberal amendments which offend against harmonisation; Labor amendments (or ones that we support) don't offend against harmonisation.' Then he moves on and says that it does not offend the core principles of the bill, so in some unbelievably intricate act of sophistry he has to somehow argue that this amendment which includes control is not some measure of a control test that is to be incorporated into the legislation.

As I said, when the minister's comments are circulated in the coming hours to practitioners in the field, I am sure they will have a good hearty laugh not only at the minister but at the government's position in relation to this issue. There will be no court decision, I am comfortable in predicting (and I am not a lawyer), over the coming years that will agree with the minister's interpretation of what he has just said.

A number of issues have been raised by the Hon. Mr Darley and the Hon. Mr Wortley, and I want to pursue those. In relation to the safe work method statement commitment, my understanding from industry associations is that those templates already exist, and I think the minister, in part, acknowledged that. Certainly, the MBA and others have indicated to me that these templates are already available via their own websites to their own members. I do not detract from their importance, and the only point I make to the Hon. Mr Darley about seeking a commitment from the government is that the government can happily give that commitment because it is already occurring and industry associations are doing it.

My understanding is that SafeWork SA was going to provide those templates to industry associations as well, and if it was not it will now, evidently. That is a good thing and we do not have a problem with that. However, that is not the problem that the subbies and industry associations have. It is not the issue of whether they can get a template, it is the fact that they actually have to complete one of these things every time there is a judgement under the legislation that there is a change in the risk profile of the job or work that they are undertaking.

There are any number of other forms people have to fill in. It is not the fact that you either get a template or you do not; it is the fact that people do have an objection to, in their view, unnecessarily fill out too many forms—whether they are templates or a blank piece of paper. Sure, it is better to have a template, but they still have to fill in the form and they have to do it whenever there is a change in the risk profile.

The minister's comments highlighted that as well. He said that if the circumstances are exactly the same you do not have to keep filling out a new risk statement or safe work method statement (and that is correct), but risk profiles change, as SafeWork SA has acknowledged to industry associations, with changes in weather conditions—for example, a clear, sunny day with no wind as opposed to exactly the same day that is windy. That affects and impacts the risk profile and there will have to be changes. Even though you are doing exactly the same job, the risk profile changes; if it rains, you will have a different risk profile for the same job.

That is what people are complaining about in relation to their tasks—and these are some particular stubbies who have been lobbying furiously in relation to this. I know the Hon. Ann Bressington has already had feedback from members of her extended family who used to work in the subcontracting industry in Queensland under this legislation in the first 12 months. I do not know whether the Hon. Ms Bressington's voice will allow it, but I think she indicated at the second reading (if I can refer to her second reading contribution) the experiences of members of her family in this area.

Some of them are just shaking their heads and saying that it is all too much in terms of the paperwork and these requirements. Some are either getting out of the industry or are joining a bigger firm and becoming an employee, where the firm does all the work. Of course, the unions love that, because there is a much greater chance for them to unionise the bigger employer worksites, as opposed to the subcontracting industry. That is one of the reasons this Labor government and its cheer-chasers in the union movement are delighted with the legislation before the parliament.

However, putting that to one side, the issue in relation to the safe work method statements is not going to be resolved by what already occurs, that is, the provision of template report forms. That is great, fine, already being done, and maybe SafeWork SA does it. It is the issue of the repetitiveness and the necessity to continue to make those changes when there are profile changes that is grinding on the subbies, in particular, and those who work within the industry. I do not see that as any great concession from the government.

I do acknowledge the change from two metres to three metres that has been achieved by negotiations between the Hon. Mr Darley and the government, and we congratulate the Hon. Mr Darley. I know that many within the industry are strong supporters of that. The government started off with a position that it would not be amended, it would have to be agreed at the national level, that this has to be harmonised. Now the government still claims that it is harmonised, but is prepared to amend the provision from two metres to three metres.

We see that as being sensible but, again, it highlights the fact that the claimed savings that the minister uses, the billions and hundreds of millions that are going to be saved in reductions in red tape and productivity because of harmonised laws between the states, can no longer be used truthfully by the minister. I know he continues to use them, but they can no longer be used truthfully by the minister because they were done on the basis of completely harmonised laws and, as I have indicated before, we now see significant changes right across the nation. In two jurisdictions we do not even have legislation; it is still the existing legislation in Victoria and Western Australia.

To highlight this particular issue, I would like to quote from a story in March this year under heading of 'OHS setback for Gillard'. It said:

Gillard is under increasing pressure to abandon her flagship reform to workplace safety despite claiming it would deliver billions in economic gains, with one of her top advisers concluding [the plan] should be scrapped.

COAG Reform Council chair Paul McClintock has issued a damning verdict on the workplace changes ahead of a crucial meeting this Wednesday to negotiate COAG deals; the conclusions are a blow to [the] PM's ambition to create a 'seamless national economy' by ending state differences on OH&S rules, a policy she has cited as one of her proudest achievements. McClintock—

and this bloke is the COAG Reform Council chair appointed by the Prime Minister—

warned the changes would do 'more harm than good' in their existing form given moves by state governments to modify or reject the original blueprint.

He then goes on to highlight how you can no longer claim these billions of dollars in savings that the minister continues to proclaim wherever he goes.

This is the COAG Reform Council chair who is saying that ministers and governments are amending the harmonised bill, that Victoria and Western Australia have refused to introduce it so you can no longer make these claims in relation to massive savings in terms of red tape as well as huge improvements in terms of economic productivity. Again, that is not something being claimed by the Liberal party, that is the Prime Minister's own COAG council chair who was indicating concerns about that particular issue.

So, as I said, on the two metres to three metres we congratulate the Hon. Mr Darley for that particular amendment, or commitment from the government to amend the regulations (we do not amend it here). I know that industry associations are also appreciative of the backdown from the government on that issue.

As we know, the minister was running around everywhere on radio—and I will not quote them all back to him because it will only further embarrass him—making claims that there were no changes in relation to height issues; it was exactly the same under the bill as it was under the existing act.

The MBA and others produced evidence and documentation to demonstrate again that the minister's claims were just not true. There were clearly new requirements under the legislation which had not existed under the existing arrangements and conventions in terms of prosecution by SafeWork SA. The fact that the minister has now agreed to Mr Darley's deal in relation to three metres is an acknowledgement that there are massive changes, and the minister has had to acknowledge those with his backdown in relation to the issue.

On this particular aspect, we welcome the minister's backdown, a recognition that all that he had been saying on this issue was wrong, untrue, incorrect—and any other word or phrase that you would like to insert—and now it is to be corrected by the commitment to amend the regulation that the Hon. Mr Darley has pointed out.

The next issue is the Markellos case, or the issue in relation to Mr Salvemini. At the outset, can I say that all members in this chamber are sympathetic to the tragic circumstances that appertain to this case. Over the years, many of us have met with the Salvemini family in relation to the issue.

I know many other members continue to provide support and comfort to the family. It would not have been my wish to raise this issue in this debate, other than the government, the minister and SafeWork SA, in a very public way, sought to take advantage of the recent decision to garner support for the legislation that is before the parliament at the moment. The Hon. Mr Darley has made his contribution in relation to the case and put it on the public record just this morning. When that decision came down in early October, the following was reported:

A fishing boat skipper has escaped penalty over a deckhand's death on a technicality, South Australian Premier Jay Weatherill says. Mr Weatherill said he shared the anger of Jack Salvemini's family following the death of the 36-year-old in a workplace incident in 2005.

'I believe that a legal technicality of this sort should not permit somebody to escape responsibility for what otherwise would be regarded as a breach of occupational health and safety legislation,' the Premier told reporters...'If you go to work you should be expecting come home safe and whole.'...Mr Weatherill said, 'legislation currently before the South Australian parliament would close the loophole used in the Salvemini case, but was being held up by the Liberal opposition.'

I interpose there, when these comments were being made, the Liberal Party's position from early this year was that we delayed it until the start of this year, with the support of the majority of members in this chamber, but our position has been broadly established for some period of time. The government has been negotiating with the Hon. Mr Darley to try to get the critical 11th vote to get the legislation through.

So, the delay for the bulk of this year has been a product of the government not being prepared to put it to the parliament because the government did not believe it had the numbers to get it through. For Mr Weatherill, in a very tragic set of circumstances, to seek to make political capital out of this issue, I think, says more about the Premier than anything else. Anyway, so, that was just not correct. He said that he was also willing to meet with the Salvemini family. 'I'm just so distraught that they've had to have this experience,' the Premier said; and we would share all those particular comments, as I said earlier. But then, also, in the press reports, there is a quote and reference to an employee of SafeWork SA:

Ms Juanita Lovatt, a director of strategic interventions at SafeWork SA, said her team would review the judgement and the Crown Solicitor's Office would consider if there were any further avenues of appeal. She became emotional during media interviews as she spoke of ongoing tragedy for the victim's family. 'Whilst this is about legal aspects of the laws as they stand, what it's really about is a son who never came home from work', she said. 'In this day and age nobody should get killed at their work.'

And certainly we agree with all those comments and the emotions that Ms Lovatt would have felt as a senior officer in SafeWork SA. The article went on to say:

She said the current laws were written in the mid-80s but had become in desperate need of review. The South Australian Premier Jay Weatherill said he sympathised with the victim's family.

Then there are further quotes in relation to Premier Weatherill's position. Again, another article referring to Ms Lovatt states:

The decision reduced SafeWork SA investigator Juanita Lovatt—who handled the case—to tears. She said she hoped revised workplace safety laws [that's this bill], currently before parliament, would be enacted soon. The revised laws close the self-employed person loophole. 'Courts obviously do their job with the laws that they have got', she said.

I think that when the deal was actually announced by the Premier and the Hon. Mr Darley, again, the Premier referred to what he refers to as the 'Salvemini case' as justification for the laws that are currently before the parliament. As I said, it would have been my preference not to have canvassed this particular issue given the circumstances for the family, but the position adopted by the Premier in a very political way on this issue necessitates a response on behalf of the Liberal Party and many others who take a contrary view as to the reasons why the Salvemini case was unsuccessful.

I have had three separate pieces of legal advice in relation to this case, and I want to share some of the legal advice from one of them and put it on the public record. One of those pieces of legal advice to me summarises as follows:

Markellos was a decision of the Full Court of the Supreme Court of South Australia. Without reiterating the facts of the matter, Mr Markellos was the captain of a fishing ship when a person on the ship, Mr Salvemini, tragically died. The owner of the fishing boat...Jean Bryant Fisheries Pty Ltd. Jean Bryant, who also employed Mr Salvemini, and Mr Markellos were both prosecuted. Both were found guilty of a breach of their respective duties under section 19 and section 22 of the Health, Safety and Welfare Act 1986. Hardy I.M., the magistrate at first instance, noted that the culpability for the incident lay predominantly with Jean Bryant, that is, the company.

I interpose there that the decision of the magistrate (Hardy IM), having heard the evidence, was that the culpability lay predominantly with Jean Bryant. I continue:

Mr Markellos argued successfully on appeal that the court could not be satisfied to the requisite standard that he was self-employed, and as a result the Crown had not proved an essential element of the case.

What I intend to highlight—as I am going to continue to read from this one particular legal opinion—is that there is significant criticism of SafeWork SA's prosecution of this particular case from lawyers experienced in the field; and, of course, it is not convenient for the Premier or for those who support the legislation to highlight criticisms of the prosecution of the case through SafeWork SA. However, the advice, as I said, that has been provided to me highlights significant criticisms of SafeWork SA's handling of the case.

I do note that there is a parliamentary committee to look at the efficiency and effectiveness of SafeWork SA. As a member of that particular committee I know one of the issues that I would be hoping to explore in terms of its efficiency and effectiveness is to look at its success or otherwise of its prosecution, such as this particular case, and the cost of those prosecutions, but its success or otherwise in terms of prosecuting the case. Ultimately, if you have legislation, that is one thing, but successful prosecutions will be significantly impacted by decisions taken in terms of what particular charges you bring against individuals, what particular cases you choose to pursue in what particular way and manner and what evidence you produce to support your case.

That is how you get successful prosecutions in our judicial system in South Australia. That is the way you are meant to, and not by running to the media and saying there was a loophole and that will be conveniently fixed by new bills coming through in the parliament. The view of a number of lawyers who practise in the jurisdiction is that that is just, in this particular case, a cop out, and there is significant criticism of the way SafeWork SA handled this particular prosecution.

I continue with this one piece of advice that has been provided. As I said, there are two others that I have received expressing very similar views as well. It states:

The laws relating to a person being engaged as a contractor/employee involves assessing various indicia of the relationship to determine whether a person is in fact a contractor or an employee. It is usually reasonably clear as to whether a person is that employee or a contractor. The facts surrounding Mr Markellos's engagement were quite exceptional and caution should be exercised in applying this principle to future cases. Despite my misgivings—

that is, the lawyer's—

as to the present value of this case, advice below proceeds to examine the case and what differences would have arisen were it prosecuted under the bill. Before doing so I note that this prosecution failed because the Crown did not prove its case. I can see nothing in this decision that, were the correct charges laid, and the case run appropriately—

I interpose there—

were the correct charges laid and the case run appropriately, would inherently lead to this prosecution failing. Caution should be exercised when criticising legislation as being inadequate before casting one's mind to the adequacy of the prosecution. It was open for the Crown to leave further evidence in support of its case or to run its case differently or to charge the person differently. None of these took place and it is all too common for prosecutors in safety matters to complain that the laws are inadequate when it is the inadequacy of the regulator which is at issue.

That is the fundamental basis of all three legal views that I have had, that SafeWork SA chose to prosecute Mr Markellos and to pursue it on the basis that he was self-employed. Lawyers who have looked at it at least accept there was an argument in relation to the employment status of Mr Markellos. SafeWork SA made the decision to pursue the prosecution under those particular grounds, and they were wrong; the magistrate found that they were wrong.

The magistrate also said the main culpability in this is actually the company. They have been pinged, prosecuted, under the terms of the act and they, on my understanding, did not appeal. It was not as if someone got off. There was a tragic death, two entities were being charged—an individual and the company. The company got pinged but SafeWork SA laid the wrong charges. SafeWork SA laid a charge on the basis that Mr Markellos was self-employed and the magistrate said, 'Well, no, you're wrong, that's not the case.'

The legal advice says that SafeWork SA could have charged Mr Markellos under other provisions in the act. They may or may not have been successful. The lawyers ask who would know what evidence there is that SafeWork SA would have had in relation to that, what they were led, how they would have prosecuted the case and whether they would have been successful or not, but at least they would have met the minimum test in terms of being able to argue their particular case.

Ultimately, as I said, the magistrate said that the chief culpability in relation to all of this was not with Mr Markellos. The magistrate's view was that it was with the company and that was the magistrate's decision. It is not a view that I am expressing; I am just recounting the magistrate's assessment and that of the legal people who have had a look at that. That conviction stood.

The legal advice is actually saying that SafeWork SA made the mistake and they are the ones who issued the wrong charges and in the wrong way and did not run their case appropriately, to use the legal understatement of this particular legal officer. From the viewpoint of the Salvemini family and others, they will obviously be disappointed that somebody else was not to be punished or penalised as a result of that.

In particular, my criticism is directed towards the Premier who is the one who sought to make political capital out of all this. The criticism of the Premier and the minister is: have a look in your own backyard. It is always convenient to pitch a tent over your own backyard and point the finger somewhere else and blame somebody else for your own inadequacies but you are the minister, the Premier is your boss, the agency reports to you. You are the one who ought to be asking the questions based on the legal advice that has been put around as to why SafeWork SA made the mistakes that it did in terms of running this particular case.

I have said it before and I want to say it again, so I repeat: even if they had run the case in a different way, it is still unclear as to whether or not there would have been a successful prosecution because, as I say, the magistrate's view was that the major culpability for this was not with the individual. It was the company that had been successfully prosecuted.

The minister argues, 'Well, we're going to close this loophole because we've now got much clearer concepts.' I will not read Whitington's opinion again, but I will refer to it again from last night. Whitington says that we are not going to clearer concepts. We are going to something which in South Australian occ health and safety law is completely unfamiliar. It is this new concept of 'a person conducting a business or an undertaking'.

The minister is saying that this loophole is going to be closed because we are now moving to much clearer concepts. We have had 20 or 30 years of industrial law and precedent in relation to employers and employees, businesses and trades and all those sorts of things under the existing act and SafeWork SA still stuffs up the prosecution in relation to this issue. The minister says, 'Well, we're now going to close a loophole.' It is convenient for him to say that because that puts political pressure to support the legislation, but when you ask for the evidence of it, he says, 'Well, we're introducing concepts which will be clearer.'

The concepts are not clearer. I am sure you will find a lawyer but you have not yet found a lawyer and put him or her on the public record whereas we have. Dick Whitington, Rick Manuel and a number of others have been prepared to be identified in relation to this issue of 'a person conducting a business or an undertaking' to say, 'We understand what a business is and there are court precedents etc. for that, but this whole notion within this occ health and safety context of what on earth an undertaking is is a new concept.'

As I said (and I read it last night), Dick Whitington is clear that something as simple as a homeowner employing a tradesperson for home renovations is a PCBU. The minister is still running around saying, 'We've got our lawyers'—unnamed, anonymous—'who tell us that that's not the case,' and therefore Dick Whitington, in essence by inference, does not know what he is talking about.

With the greatest respect to the minister, as I said on radio this morning—when he eventually got flushed out, having used the novel excuse on ABC radio at 7.15 that he could not comment on these issues because it was before the parliament, and then obviously two hours later when someone gave him something to say, he was commenting on the issue on FIVEaa at 9.45, so I am not sure of the minister's consistency on this particular issue—we have the position where it is a completely new concept, so for the minister to be holding out false hope to the Salvemini family and others to say, 'Hey, you beaut, we've solved the issue; this bill resolves all those sorts of circumstances,' is just a nonsense.

I am sure he probably knows that it is a nonsense, but it is convenient for him and the Premier to make these sorts of claims publicly and in the house today, to say 'We're closing a loophole, we're introducing new concepts which are clearer than the old concepts and therefore SafeWork SA,' and he does not say this of course, 'will not stuff up the prosecution by laying the wrong charges in relation to this particular case'.

The summary of one of these pieces of legal advice to me is as follows:

Given his above views, it is in my view inappropriate to suggest that Mr Markellos would have been found guilty under the new laws—

'Inappropriate to suggest that Mr Markellos would have been found guilty under the new laws,' and that is clearly the inference that the Premier and the minister have been given, that is, 'Hey, there's a loophole, we're going to close the loopholes, and by inference if this bill had been in place that particular decision would not have occurred.' That is the inference, the impression they have sought to give to the Salvemini family and to anyone else in relation to this issue, and the legal advice says that it is inappropriate to suggest that that be the case. The legal advice goes on:

or that he escaped liability through a loophole or that the bill would fix any perceived deficiency if made law.

This case highlights the failing of the prosecutorial authority [that is, SafeWork SA] to conduct thorough investigations and to run its cases properly.

That is the legal advice to me. I repeat:

This case highlights the failing of the prosecutorial authority to conduct thorough investigations and to run its cases properly.

It continues:

As the personal and financial consequences of safety prosecutions increase, defendants will more likely defend these matters and hold SafeWork SA to the same standards of accountability that the police and the DPP are held to. Nothing in this legislation will change the fundamental obligation on the crown to properly prosecute its case. Put simply, one cannot legislate for incompetence.

I note public comments made by SafeWork SA about this matter. These comments by SafeWork SA are at best misguided. This is regrettable, particularly in light of the grieving family, who have suffered terribly through this tragic accident. Hardy IM went to great lengths to describe the terrible effect that this tragedy has had on Mr Salvemini's family.

I wanted to place on the record in some detail the legal advice we have received in relation to the claims being made by the Premier and the minister in relation to the Salvemini case. Because of its proximity to this debate, it has taken on some significance not only in terms of determining views in relation to the amendment but, as the Hon. Mr Darley has indicated, in terms of determining or influencing views in relation to the need for the legislation.

It would have been my preference not to have raised these issues, given the grieving that the Salvemini family is going through. I am, however, required to provide some response on behalf of my party to reject what I believe are unacceptably grotesque suggestions and inferences by the Premier in relation to this particular issue.

The Hon. B.V. FINNIGAN: Moving away from some of the issues the Hon. Mr Lucas is raising on the wording of the amendment, would the Hon. Mr Darley or the minister address the latter part of the amendment, which says 'or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity'? I have a concern about that and about how it might potentially be used to suggest that people are not bearing the responsibility or not having the duty when in fact they should have. I wonder whether either the mover or the minister has some information about how that particular section of the clause would apply.

The Hon. J.A. DARLEY: Section 272 concerns no contracting out. There is a provision there that contracting out is not allowed, and that was the whole essence of the exercise.

The Hon. R.P. WORTLEY: I agree with the response from the Hon. Mr Darley.

The Hon. D.G.E. HOOD: I would like to place on the record that, on this occasion, Family First prefers the Liberal amendment. As I said in a contribution I made earlier, this is, in many ways, the nub of the bill for a large section of industry. All of us have been lobbied quite extensively across the various industry sectors on this particular bill and all who have done so have raised this issue that we are now focusing on with great concern. The problem is how this issue of control is precisely defined. The bill goes into great detail about what it may or may not mean, but ultimately that will be decided by a court.

As the Hon. Mr Lucas pointed out a little while ago, it will be decided by a court several years (I suspect) down the track. Until then, it is going to be very difficult for industry to know exactly what it is dealing with. One thing we do know with certainty is that there are 20 pages (or thereabouts) of this particular bill dealing with duties or expectations on PCBUs. The reality is that that is a great deal of expectation on industries, whatever type they are, to undertake and adapt to in a particularly difficult time, as we see in the economic environment at the moment, particularly the building sector, which is struggling at this moment.

One thing that was said to me that makes absolute sense, despite the claims that this bill would lead to great savings in its harmonisation aims, if you like, is that more paperwork does not equal savings. I think that is one of the key issues. In Queensland we have seen examples of people getting to building sites and spending 30 minutes plus filling out paperwork for each particular site. So, I think there are real problems with this issue. I think Dick Whitington QC has outlined those for all to see, and we share his concerns.

I raise the issue of the so-called two to three metre change that we are all familiar with. We support that. Family First thinks that is a step in the right direction, but—and I think this is the key issue—we cannot really see on what basis we should be changing from how it is at the moment. It works well. We have a very good safety record in that regard. Whilst there is a risk, there are always risks. There are risks in everything we do. We would prefer to see the status quo. That being said, Family First supports the Liberal amendment and we will see how it unfolds from there.

The Hon. A. BRESSINGTON: I also indicate that I will be supporting the Liberal party amendment, but I do want to make a couple of comments, because by the end of the day I will probably not have a voice left to speak. I am absolutely horrified that in South Australia we are introducing legislation ignoring the legal opinions of people qualified in the field to make judgements on this, that this government, namely the minister and the Premier, have used a very sensitive case in the courts (almost that ambulance chaser mentality) to try to convince people that this bill is going to be the saviour of people who are victims of deaths in the workplace.

The Hon. Rob Lucas was right to use members of my family in Queensland as an example of what happened: one was a plumber and the other was a plasterer. They had to work under this legislation and their businesses have gone—literally gone. They were self-employed subcontractors but it did not even take 12 months before they were not able to comply with the regulations under this so-called harmonised legislation.

This is what we are delivering to the people of this state: pigheadedness by the government to forge on regardless to keep the unions happy—that is what this is about. I see this as a full-on, frontal attack on subcontractors in this state, as it was in New South Wales and Queensland. For the minister to ignore letters from Self Insurers of South Australian (SISA), the Civil Contractors Federation and Business SA, and to ignore their concerns outright and for him to say, 'Well, people have gone out there during the course of this consultation and created all of this drama and chaos and have just blown it out of proportion,' is an absurd statement.

Business SA, at the beginning of this, supported this legislation. When it suited the minister and the government to listen to Business SA it was all well and good but now that it has looked into it and changed its mind, and have actually done the consultation that the government should have done, now it is said they are just fearmongering.

I find this whole thing an absolute disgrace. As I said, it is unionism by force. We will see the consequences of this legislation three or four years down the track—not now. Some of us probably will not even be here when the consequences of this will start to be felt by the industry, subcontractors and workers. I just hope that all of those who have gone into this without listening to both sides, with a pigheaded view of it, when those consequences unravel, take some responsibility for it at that time.

The Hon. B.V. FINNIGAN: I thank the Hon. Mr Darley for responding to my question. I understand the application of section 272 but often acts will include a kind of catch-all clause like that that says, 'Anywhere else in the bill where a particular consequence might arise, this clause is to cover that.' However, that does not always work because it may be that people will go back to the section (in this case 17) and say, 'Well, with regard to management of risks this is what it says, so that is the most compelling clause to consider.'

I am still wondering about this 'would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity'. Is it going to be possible for someone to say, 'Well, I didn't have a duty because I've got this agreement or arrangement which limits or removes that.' I am just not sure about this wording.

The Hon. R.P. WORTLEY: I thank the Hon. Mr Finnigan for his question but the honourable Mr Darley did answer that to the government's satisfaction. With regard to Mr Lucas' amendment, to me the very concept that you exclude any person, any employer or any PCBU that does not have direct control is totally unacceptable. Many employers have an influence—not a direct control but an influence—over their workplace and the ability to provide a safe and healthy workplace.

The whole concept of this legislation is about making workplaces safe. I hope that employers and anyone who has an influence in their workplace will exercise that to ensure that their workplace is safe and healthy. So, we totally oppose the concept of the Hon. Mr Lucas' amendment.

We do support the Hon. Mr Darley's amendment. What is important in all this is to remember that all the clauses from 13 to 17 will be read together, and we have had advice from Safe Work Australia which has made it quite clear to us that the amendment proposed by the Hon. Mr Darley does not undermine the fundamental principles of the model act. Hopefully, we will go to a vote now, and we do support the Hon. Mr Darley's amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The Hon. Mr Lucas is indicating that he has other issues.

Progress reported; committee to sit again.


[Sitting suspended from 13:01 to 14:15]


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