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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 (resumed on motion).

Clause 17.

The Hon. T.A. FRANKS: I had some questions, and I am waiting for my computer to warm up but I can remember some of them off the top of my head. My first question was with regard to the change from two metres to three metres in terms of falls policy. What data is there and in what jurisdictions does the three metres apply rather than two metres?

The Hon. R.P. WORTLEY: I would like to thank the honourable member for her question. A two metre threshold currently applies in all states and territories that have adopted the nationally harmonised work health and safety laws, this includes: Queensland, the commonwealth, New South Wales, Victoria, Western Australia, the ACT and the Northern Territory. Tasmania is expected to adopt the two metre threshold when it commences legislation on 1 January 2013. Preliminary advice indicates that Victoria has a two metre threshold as well, although this needs to be confirmed. Where does the three metre threshold apply? The three metre threshold applies in existing Western Australian legislation, where edge protection is required.

The Hon. T.A. FRANKS: Can the minister indicate what is the number of falls by industry and what percentage of these falls have either been considered serious injuries or led in fact to deaths? Is there any data on falls between two and three metres and the level of harm caused? Although I am holding out hopes that that exists, I am not sure that that data would have been so disaggregated. Also, and most importantly, what are the costs to industry and/or government of falls each year?

The Hon. R.P. WORTLEY: Whilst I do not have the data available for each separate industry, I can outline for the chamber that in the housing industry, 84 falls occurred over the past five years. These 84 falls from heights claims resulted in more than 5,100 working days lost. When you consider that, when you divide 84 into 5,100, you can see that these are all significant injuries, and each one of these injuries could have just as well been a death. The cost has been more than $1.5 million in workers compensation claims. Whilst I do not have a breakdown of other industry groups, it is clear from the data that the housing sector has more than its fair share of falls.

The dangers of working at heights are well known. As I indicated to this chamber yesterday, the research committee of the SafeWork SA Advisory Committee, which administers the Work Health and Safety Innovative Practice Grants program, has recently awarded the Housing Industry Association a grant of $35,500 to conduct a specific project on managing risks associated with working at heights. The HIA has acknowledged the danger of working at heights by seeking funding to improve its safety performance in this area.

Is there any data on falls between two and three metres and the level of harm caused? I have been advised there is no data available in relation to this. What are the costs to industry and/or governments of falls each year? This can be teased out to falls from a height above three metres. Regarding the number of falls by all industry groups, it was reported in the Safe Work Australia comparative performance monitoring report that between 2006 and 2011 there were approximately 62,000 compensatable injuries arising from falls across all injury sectors. This represents approximately 20 per cent of all compensatable injuries across the nation. It is not possible to determine how many of these led to death. However, all these falls are serious in so far as these people were off work for one week or more.

The Hon. R.I. LUCAS: Can the minister indicate what is the definition of fall that the minister has used for the collection of figures that he has just indicated? Are these falls from greater than two metres, for example?

The Hon. R.P. WORTLEY: This is from any height—84 falls.

The Hon. R.I. LUCAS: So, if I fall over from two inches, that is classified by the minister as a fall?

The Hon. R.P. WORTLEY: Once again, common sense has to prevail on this. Regarding the Housing Industry Association, these 84 falls for instance in the housing industry resulted in 5,100 days off. That is a significant number of days off, many months for each fall on average, so they are serious falls and should not be made fun of during this debate. My advice is these statistics are serious falls, serious compensatable injuries, so I do not believe falling from two inches is a serious sort of debate to have in regard to this issue.

The Hon. R.I. LUCAS: I do not like the way the minister is making light of some compensatable injuries which could be quite serious and which might not have been from a height. You might fall because of the uneven nature of the worksite. There might have been a hole or a pothole, or whatever else it is. All could be classified as falls. The minister has been leading everyone to believe that these particular figures relate to falls from heights.

He has now been forced to reveal that these figures do not actually reveal falls from heights of two metres or three metres or whatever it is; it is just a fall from any height, or indeed if you walk along and you fall over. That can be a serious injury and I am surprised that the minister would make light of falls of a compensable nature (where someone is off work for a week or more) just because they did not happen to fall from two or three metres.

I think what has now been revealed for the first time is that these figures being used by the minister are dodgy figures. They do not relate to people working at heights of two and three metres: they relate to people who might have been working at heights—and some of them clearly were—but they also relate to people who might have been walking along and fell over and had a serious injury as a result of that.

It has nothing to do with the issue of working at heights, the issue of scaffolding and trusses and the variety of other safety options that workers working at heights have to observe. We are indebted to the Hon. Ms Franks for the question that she has put because that has now thrown a completely new light on the figures that the minister has been using—in a misleading way, I might say—in relation to this issue of falls.

Now that that issue has been cleared up, I want to clarify two other matters in relation to the debate that we had before lunch today. One issue was in relation to the Markellos case, or what has been colloquially referred or more commonly referred to perhaps as the Salvemini case. I want to make it clear that the legal advice provided to the Liberal Party is that if the amendment being moved by the Liberal Party is successful, the position will be as simple as saying that if someone has some level of direct control over a safety risk then they can be held responsible and can be prosecuted.

So, in the circumstances that we are talking about—and I do not know the detail and the magistrate would ultimately have to determine it and he did say in that case that the company, in terms of culpability, had the major portion of blame rather than the skipper—the position is that under the amendments being moved by the Liberal Party, if it can be demonstrated that both the company and the skipper in a set of circumstances have some level of control, then they can be held responsible and prosecuted. I imagine that the Hon. Mr Darley would potentially argue the same in relation to his amendments. It certainly would not have been the case in relation to the model bill introduced by the government.

I want to make it clear on behalf of Liberal members in this chamber, and others who support the amendment, that in relation to this particular case—and not just this case, frankly, but any other case— it would be clear that, in the end, if an individual or company can be shown to have control of a particular safety risk, then they can be held to account and they can be deemed to be responsible. If they have done something wrong over an issue that they have control of they could and should be prosecuted for that if it is serious enough. I just want to place that on the record.

The second point I wanted to raise was in relation to what the minister indicated before the luncheon break today, when I pointed out to him that he was saying that the amendment that he is about to support does not contradict or contravene the harmonisation principles that he has talked about, because he argues that this is not introducing any element of a control test: he says this is just clarifying control. He went on to say in relation to the amendment that he is going to support that it is clear that a person or an individual who has the capacity to influence a particular safety risk should be held to account for it.

My question to the minister is: given that he is about to support this amendment which says 'has the capacity to influence and control', does the minister accept that the words 'influence and control' mean that control actually limits the extent of influence in terms of any legal judgement? That is, you might influence something but if you do not control it as well then that influence will not be taken into account in terms of the test that is being introduced here.

The Hon. R.P. WORTLEY: The Hon. John Darley gave an explanation for his amendment, and this government supports that amendment, so I do not need to go into detail any further. The statistics in regard to the 84 falls from heights are taken from WorkCover statistics which identify the injuries as 'falls from heights'. To make a bit of a joke about this and say you might have tripped over your foot and you are off for three months or so I think is typical of the way the Hon. Mr Lucas has handled this whole issue from the very beginning.

The Hon. R.I. LUCAS: The minister might say it is disappointing, but if a person injures themself seriously having fallen from a step, which might be six inches or a foot, and that is classified as a fall under the minister's statistics, then in some way he would demean the seriousness of that injury. I think it is beneath contempt for the minister to demean somebody injured in those circumstances. That is a fall from a height because the minister has just conceded it is any height. It could be six inches, it could be a foot. It can still be a serious injury and compensable for the classification of a week or more.

The minister cannot wriggle his way out of that issue in that way. He has had to concede that these are not all falls from heights of two or three metres—they are falls from any height—and, if someone falls off a step at six inches or a foot and injures themselves, that is covered. The issues about two or three metres and scaffolding and trusses and all those sorts of issues are not going to resolve those sorts of falls.

Unless the classification of figures can actually categorise (as the Hon. Tammy Franks was asking for) the number of falls from between two and three metres and greater than three metres (and the minister has said he is not in a position to do that), then they are all being categorised within the minister's figures of falls and some of them, clearly, will not be impacted by the issue of two or three metres.

My question was in relation to the issue of influence and control; there has not really been a debate, and I want to ask the Hon. Mr Darley, if the minister is going to refuse to answer—although he has put on the record prior to the lunch break today his interpretation of this. He was actually seeking to interpret this in a much broader sense than I believe the Hon. Mr Darley intends and the legal advice given to the Hon. Mr Darley.

My question to the Hon. Mr Darley is: how does he intend, as the mover of the amendment, that the words 'influence and control' be interpreted? Certainly, if this said 'influence or control', then it is a much broader legal interpretation because 'control' I would call a specific subset of influence. Influence can mean a whole range of things, but you do not necessarily control something. If you said influence or control, it is a much broader understanding. Influence and control limits it essentially to control, and that is contrary to what the minister was indicating before the lunch break. So, I ask the Hon. Mr Darley: what is his legal advice as to how he sees these three words 'influence and control' being interpreted?

The Hon. J.A. DARLEY: My amendment is the broader sense, influence and control.

The Hon. T.A. FRANKS: I would appreciate an explanation of why the words 'influence or control' were not used. It is one of our queries as well. I just thought I would make that known to the chamber.

The Hon. J.A. DARLEY: The clause is consistent with clause 16(3)(b), and it is to be read conjunctively.

The Hon. R.I. LUCAS: Is the honourable member referring to 16(3)(b) of the bill or the act?

The Hon. J.A. DARLEY: The bill.

The Hon. R.I. LUCAS: It states:

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

From industry associations that have discussed this issue with the Hon. Mr Darley, he did use the phrase, I think, and he repeated part of it, that this is to be interpreted legally conjunctively and not some other word—

The Hon. J.A. Darley interjecting:

The Hon. R.I. LUCAS: Sorry, I had better let you say what it is.

The Hon. J.A. DARLEY: The word is 'conjunctively'; that is the way it is interpreted.

The Hon. R.I. LUCAS: All that is saying, I think, in ordinary, non-lawyer terms, is that it is influence and control; that is, it has to be both. For example, if you can influence a particular safety risk but you do not also control it, then that will not be covered by this particular provision. You have to both influence and control, so control is an essence because it is the smaller subset of influence. Clearly, in terms of understanding this, control means you actually control something. You could influence something without actually controlling it.

The amendment is seeking to say that it is influence and control. If you influence something but you do not control it, that is not covered by this amendment the government is moving. I want to make that clear, and that is obviously the interpretation that the Hon. Mr Darley is putting on it. It is certainly the legal advice that has been provided to me, but it is contrary to what the minister was saying prior to the luncheon break.

So I just want to make it clear, as we vote for this, that we are all voting for it in the full knowledge that you have to both influence and control. If you do not control something but you influence it that does not activate this particular clause or provision. It is to be read in that way, as the Hon. Mr Darley has indicated.

The Hon. R.P. WORTLEY: To put this whole issue in a nutshell, it is likely that in order to have influence you will have a degree of control. It is quite straightforward as far as I can see.

The Hon. J.A. DARLEY: I would just like to clarify the two or three metres; in Queensland the figure is three metres.

The Hon. R.I. LUCAS: Can we clarify that? The minister gave advice contrary to that; he said that every jurisdiction, including Queensland, was two metres.

The Hon. R.P. WORTLEY: I did say that. I must say that I thought the same as the Hon. Mr Darley, that Queensland had three metres, but I have been advised only a few minutes ago that Queensland Regulation 291 reads:

In this chapter, 'high risk construction work' means construction work that—

(a) involves a risk of a person falling more than 2m; or

As I said, this was given to me only a couple of minutes ago. Like the Hon. Mr Darley, I thought Queensland's regulations were three metres, but I have been advised that it is two metres.

The committee divided on the Hon. Mr Lucas's amendment:

AYES (5)
Dawkins, J.S.L. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. (teller)
PAIRS (6)
Wade, S.G. Vincent, K.L.
Lee, J.S. Hunter, I.K.
Bressington, A. Zollo, C.

Majority of 3 for the noes.

Amendment thus negatived.

The Hon. Mr Darley's amendment carried; clause as amended passed.

Clause 18.

The Hon. R.P. WORTLEY: In regard to heights, Queensland retains the two-metre height threshold for high-risk construction work. They have introduced provisions for falls from heights for the housing construction which have a threshold of three metres.

Clause passed.

Clause 19.

The Hon. R.I. LUCAS: Before I move the amendment, I want to make some brief comments. This is, together with the amendments we have just moved to clause 17, one of the key clauses in the bill: primary duty of care. It then goes on to the duty of persons in various other categories as well. I make this point on the basis of part of the debate that we entered into yesterday and last night, because it has attracted a lot of publicity and controversy today on talkback radio, blog sites and in contacts to my office.

The minister has acknowledged that mums and dads who employ a nanny will be a PCBU for the purposes of the legislation, that is, a person conducting a business or an undertaking. Therefore, all of the requirements of this amended bill will now rest with the mum and dad who employ a nanny in the home, and other similar examples as well. This primary duty of care—this particular clause—outlines all of the expectations on a person who conducts a business or an undertaking.

I think, as had to be acknowledged this morning on some of the debate on radio, the minister was not able to say, 'Well, look, a mum or dad who employs a nanny and is a PCBU won't have to undertake all of these particular requirements.' He was forced to concede on these requirements, 'Look, these are expected; they are common sense, and all mums and dads who employ nannies should have been doing these things anyway.'

I am not sure what the minister's experience is in this particular area, but I can tell the minister that there is no mum or dad employing a nanny that I know who has been drafting occ health and safety policies as an employer when they employ their nanny in the event that they end up subject to a court action by a nanny or someone like that.

The minister may well want to argue, 'Well, they should have,' but all I would say is that some of us are living in the real world, and the notion that mums and dads who employ nannies should have occupational health and safety policies, do risk audits, and outline all of this to each and every nanny that they employ in the home environment is certainly not one which is likely to be supported out there in the broader community.

As I said, there has been quite some controversy about this today—a lot of talkback radio, a lot of feedback in relation to this particular issue, and great concern that Premier Weatherill and the ministers in this government would be pushing this sort of policy on mums and dads who employ nannies and others.

The advice I received from Dick Whitington QC, when I highlighted that any mum or dad who employs a tradesperson in their home will be similarly caught up, was that clearly, a mum or dad who employs a tradesperson for home renovations is a PCBU, contrary to the minister's contention that they are not, and that it is the tradesperson. The tradesperson might be a PCBU as well, but Dick Whitington QC is saying that the mum or dad who employs the tradesperson for home renovations is caught up as well.

As I said, before I move the amendment standing in my name I highlight this particular clause, and there are many others right throughout this legislation. As a result of the minister's confirmation yesterday, a mum or dad who employs a nanny is a PCBU and therefore caught up in the legislation. There are 270-odd clauses in this bill, not all but many of which relate to the obligations and responsibilities for PCBUs and, in the case we are talking about, for mums and dads who employ their nannies. I move:

Page 23, line 10—Delete 'or control' and substitute 'and control'

This is the first of a number of amendments, and I certainly treat this one as a test case for the many others later on. This is a similar debate to the one we just had, where the Hon. Mr Darley was quite clear, and I thank him for that. In relation to the amendment the committee has just passed, he said that he quite deliberately used the words 'influence and control'; that is, it is to be read conjunctively. It had to be both. You were not to extend the notion of control to the much broader notion of influence.

It is my simple contention that this is exactly the same argument we have just had. It does vary throughout the bill; sometimes it says 'management or control', sometimes it says 'management and control' but, in relation to this, it is a simple argument. It is saying that, when we are talking about the issue of control, it should be, as the Hon. Mr Darley has moved and been supported by the government, read conjunctively; that is, it is management and control, the same as influence and control, rather than management or control, which is what has currently been drafted in there.

It is clear that management is a broader notion than control, as influence is. You can have management, but you might not be in control of a particular safety risk. You might be a manager quite removed from the worksite. We have talked about the examples in the residential housing industry where a particular company has managers and they might have 500 different worksites throughout South Australia. You are a manager and you manage; therefore, it is management, but you are not in control.

That was this whole debate we had earlier about control. Whilst the Liberal Party's amendment was unsuccessful, at least the Hon. Mr Darley's amendment has been accepted, which we, at least, accept is a marginal improvement on the government's bill. But it introduces the notion of control. It is on the basis that there are some people who might have influence or who might have management or whatever it is, but they do not actually control the risk. They should not be prosecuted and held to account for it; if you control a risk, then you should be. It is a pretty simple notion, as Dick Whitington, Rick Manuel and other lawyers have highlighted in their legal advice to many of us.

We see this as a simple contention. Our legal advice is that it would appear to be either a genuine oversight by the legal drafters for the government nationally or a deliberate intent to broaden the concept from just control, that is, to be management or control in this area. We think it is exactly the same argument as the Hon. Mr Darley has used, which has been supported by the government, in relation to the words 'influence and control', rather than 'influence or control'. In this case, it should be 'management and control'.

The Hon. R.P. WORTLEY: A mum and dad who hire a nanny are 'a person conducting a business or undertaking' and they have an obligation to provide a safe and healthy workplace for that nanny. Under the current act, they would be an employer and they have an obligation to provide a safe workplace for the nanny, so there is no change in their responsibilities. I would like to lift this debate that we have sunk to with the Hon. Mr Lucas up a level or two.

I have never known a prosecution where a nanny has successfully prosecuted her employer. However, let us now talk about what this legislation is actually all about. It is about the tens of thousands of factories, of workplaces, of retail outlets and construction sites where people are dying day by day and getting seriously injured. This is what this is all about.

To my knowledge no mum or dad has ever been sued or prosecuted under the Occupational Health and Safety Act. I think that we have got to put this all in perspective. In regard to mum and dad employing a tradesperson, the tradesperson themselves is the person conducting a business or undertaking, not the mum and dad; so, they would be the people who have to ensure that they work in a healthy and safe environment. We oppose the Lucas amendment and look forward to moving on.

The Hon. B.V. FINNIGAN: I indicate that I will be opposing the amendment moved by the Hon. Mr Lucas and the other amendments along the same train. I understand that he wants to restrict the scope of the bill or the application of the act, but while there may have been a legitimate question over what the word 'influence' might mean I think that with 'management' or 'control' that is going to be fairly straightforward.

With respect to the concern that he has raised that someone might be a manager but be nowhere near the work site or have no direct control over it, I think that these clauses do refer to 'reasonably practicable', which is a fairly well understood concept in the common law when talking about reasonableness, so I think that would have to be something that would be considered in the event of a potential breach.

Also, if one were to apply that logic, I think that the following sections about suppliers, importers, designers and so on would also have to go because you would say, 'Why should those people, if they are not necessarily at the workplace, have obligations under the bill?' I think that just overly restricts the application of the act.

The Hon. D.G.E. HOOD: Just briefly, I indicate that Family First will support the Liberal amendments. It makes sense to me that if someone does not have overall control, if you like, that they should not be held to absolute account.

The Hon. T.A. FRANKS: The Greens will oppose this amendment, and we certainly do have some reservations about inserting 'and' rather than 'or'.

The Hon. R.I. LUCAS: Just returning briefly to the minister's attempt to explain, again, his position in relation to mums and dads employing nannies or mums and dads employing tradespeople at home, all I can do is repeat what I said yesterday: Dick Whitington QC disagrees with the minister's interpretation of the bill.

The minister has not been able to give us the name of a lawyer who agrees with his interpretation, and, with the greatest respect to the minister, I think I would take my legal advice from Dick Whitington QC rather than from the minister in relation to it. If Dick Whitington QC says that if you are at home and you employ a tradesperson you are a PCBU for the purpose of this act, then I am prepared to accept his advice in the absence of anything specific from someone from the minister.

The final point I would make is that the minister says that he is not aware of any cases which involve nannies. The first thing I would say is that that would not be surprising to me. There are a lot of things the minister is unaware of, but put that to the side for the moment. Until I did the preparation for this I was not aware that if you are working at home and you walk up the stairs in your socks and slip over, you can successfully claim workers compensation.

That was news to me and it has certainly been news to many people to whom I have recounted that particular story in the last 48 hours or so. The reality is that, as you make new laws, over a period of time (as I indicated yesterday, it is likely to be five years or so) we will see magistrates and courts interpret the laws that we have passed.

As the national law firms such as Freehills and Allens Arthur Robinson highlighted (which I quoted in this place yesterday) that Telstra decision of the employee slipping over while walking up the stairs in her socks opens up significant issues under this particular legislation in terms of occ health and safety audits for the home that the employers will have to conduct. I just wanted to respond to that. In relation to the management and control issue, it is interesting that the minister has offered no specific rebuttal of that at all other than just saying that he does not agree with it.

The Hon. R.P. WORTLEY: Just on the issue of the Telstra worker who fell down the stairs while wearing socks, this is a workers compensation issue. Telstra was not sued and was not prosecuted for a breach of the Work Health and Safety Act.

The committee divided on the amendment:

AYES (7)
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.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. (teller)
PAIRS (6)
Wade, S.G. Vincent, K.L.
Lee, J.S. Hunter, I.K.
Bressington, A. Zollo, C.

Majority of 1 for the noes.

Amendment thus negatived.

Clause passed.

Clause 20.

The Hon. R.I. LUCAS: My amendments Nos 11 to 13 are consequential and I will not move them.

Clause passed.

Clause 21.

The Hon. R.I. LUCAS: My amendments Nos 14 to 16 are consequential and I will not move them.

Clause passed.

Clauses 22 to 30 passed.

Clause 31.

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

Page 31, line 37—Delete '$300,000 or 5 years imprisonment or both' and substitute:

$200,000 or 5 years imprisonment.

This particular amendment is the first in a series of amendments, and I will treat this as a test case for many of the remaining amendments. Our instruction to parliamentary counsel in relation to this—and we understand that it was a difficult task and I thank parliamentary counsel for their hard work in terms of adhering to the drafting instructions—was essentially to say: return the penalties to the existing penalties.

We did not seek to reduce the level of penalties; in our view they were significant anyway. The drafting instructions were—and this is the first of those—to reduce the penalties as close as possible to the existing level of penalties, which include significant fines and imprisonment in some cases as well.

I will not read it again but earlier today I did read Rick Manuel's legal advice onto the record, and one of the issues that he raised was the notion that, given that this bill is going to very significantly increase penalties, it is much more likely now that companies will defend, and defend vigorously, any prosecutions from SafeWork SA.

What Rick Manuel and other lawyers have been saying to us is that this will mean much more litigation and much more expensive litigation and the pressure is going to be on SafeWork SA and the government in terms of the way they handle the cases. I put on the record the very significant criticisms from lawyers as to the way SafeWork SA handled the Salvemini case, but those lawyers have been equally critical of the way SafeWork SA has handled a number of other prosecutions as well.

It is the view of a number of people who practise in this jurisdiction that the reality is going to be that the stakes are going to be lifted and people are obviously really going to defend themselves—as is their right—against the prosecution, so the onus is going to be on SafeWork SA to make sure that they get their charges right, that they do not mess things up beforehand, that they lay the right charges and get the appropriate evidence to seek to get prosecutions where it is appropriate.

All of us in this chamber would believe that if somebody is in control of a risk and they have caused death or injury to a worker and there is an appropriate penalty, then that should not be prevented through sloppy work from the prosecutorial agency. So, the onus is on SafeWork SA and the minister to ensure that that is not the case. I would hope that the minister—well, I do not have great hope, I must admit—would at least listen to the advice of some legal practitioners in this field and start asking some serious questions in relation to the operations of SafeWork SA.

As I indicated earlier today, another parliamentary committee is about to commence a searching inquiry into the efficiency and effectiveness of SafeWork SA and hopefully that will provide information for government and for decision-makers in terms of any changes that might be required in terms of the management, operations, efficiency and effectiveness of SafeWork SA as an agency. As I said, this is the first of a series of amendments. We believe the existing levels of penalties are already significant and we do not believe that the extraordinary, large, further increases in penalties that are contemplated in the model bill should be supported.

The Hon. R.P. WORTLEY: We oppose this amendment. The penalties reflect the recommendation of the national review which was undertaken by a panel of occupational health and safety experts and which preceded the drafting of the model Work Health and Safety Act. The national review recommended that the penalties in the model act should have a stronger deterrent factor. The category 1 offence, for example, is on par with the most serious breaches of the general criminal law.

However, this offence requires the element of recklessness in the behaviour of the alleged offender. The three levels of penalty allow for a differentiation that takes into account the culpability and risk. They also allow sufficient room for a sentencing court to adjust the penalty within each category to suit the particular circumstances of the offence.

The concept of this whole legislation is about making workplaces safe. It is not the intention for this just to be used for prosecutions. There is a section in this act that allows for enforceable undertakings, so where there is a low-level breach and noncompliance, the employer can enter into an enforceable undertaking and, with SafeWork SA, will ensure that they make their workplace safe. This is the emphasis that we like to believe is on it. It is not about prosecuting, it is about making workplaces safe.

To question the effectiveness and efficiency of SafeWork SA is almost outrageous when you consider that SafeWork SA, in the pursuit of reducing injuries in this state, leads the country in regard to the reduction of workplace injury. Over the last 10 years we have reduced numbers by 40 per cent and we have also reduced the incidence of serious injury by 25 per cent, so SafeWork SA ought to be congratulated for the great work they have done. However, there is only so much you can do with the tools you have in the box. They now need other pieces of legislation to continue on with their great job of reducing injuries and death in the workplace.

The Hon. B.V. FINNIGAN: I indicate that I will be opposing this amendment and the 40-odd other amendments in the same vein. It seems incongruous to argue that we should not increase these penalties because that will be too onerous on businesses and at the same time criticise the work of SafeWork SA in prosecuting them. If they are so incompetent at prosecuting, you would not imagine that it would be a big problem for the penalties to go up.

There are precious few successful prosecutions as it is. The bar that needs to be crossed in order to be successfully prosecuted for any of these sorts of offences is very high and we are not talking about expiating a traffic offence here, we are talking about serious offences. If people are successfully prosecuted, it is going to mean they will have committed a serious breach. I think there are not that many successful prosecutions and the fines that are levied, in many people's view, are not sufficient, so I think it is right that the regime be lifted across the board.

The Hon. T.A. FRANKS: It will come as no surprise to the Hon. Rob Lucas that the Greens will be opposing this amendment. We do so for the reasons I started to outline before. We also need to recognise that workplace injuries occur from negligence or not having high enough safety standards. Injuries occur and so do deaths in the workplace. For example, Safe Work Australia puts out Work-related Traumatic Injury Fatalities reports, which usually come out about two years after the financial year that was examined, and they are based on quite thorough research than the standard reports. These particular report find that generally 450 people per year are killed in work-related incidences; that is more than one a day and some of these are bystanders, not just workers.

The Greens believe that we need to recognise the seriousness of what happens if a breach of occupational health and safety law takes place. Setting a low penalty for a breach of occupational health and safety law does not indicate from this parliament the seriousness of this and does not set a deterrent for those workplaces with high injury rates. We also need to be making sure that we are not setting a precedent for other jurisdictions to follow us and lower their penalty rates.

The Hon. D.G.E. HOOD: Just briefly for the record, Family First supports the amendment and the ensuing subsequent amendments.

The Hon. J.A. DARLEY: I will not be supporting this amendment.

The committee divided on the amendment:

AYES (7)
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.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Maher, K.J. Parnell, M.
Wortley, R.P. (teller) Zollo, C.
PAIRS (6)
Wade, S.G. Vincent, K.L.
Lee, J.S. Hunter, I.K.
Bressington, A. Kandelaars, G.A.

Majority of 1 for the noes.

Amendment thus negatived.

The Hon. R.I. LUCAS: The next two amendments are consequential and I will not move them.

Clause passed.

The Hon. R.I. LUCAS: My amendments Nos 21 to 24 are consequential and I will not move them.

Clauses 32 and 33 passed.

Clause 34.

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

Page 32, after line 32—Insert:

(a1) To avoid doubt, an officer of a prescribed strata/community titles corporation who is a volunteer does not commit an offence for a failure to comply with a duty under section 27 (but may be liable for a failure to comply with another duty under this Act).

I will speak to amendments Nos 2 and 3 together, as they relate to the same matter. At the outset I should disclose that I am the presiding officer of a group of 10 strata title units by virtue of the fact that I part own one with my wife. My wife also owns a separate strata title unit in her own right, and as such is a member of another strata corporation. I was also formerly a director of a company that owned a group of home units under the company shareholding system, which preceded the Strata Titles Act, which commenced operation in 1988.

For the record, that is not the reason I am moving these amendments. In fact, it had not even occurred to me at the time that this issue was raised with me. The amendment proposes to make it clear that an officer of a strata or community title corporation who acts on a volunteer basis is subject to the same exception that applies to volunteers, and I would suggest that those people who act as company directors in a company shareholding system would be affected in exactly the same way; that is, they do not commit an offence for a failure to comply with a duty under clause 27 by virtue of the exception provided for under clause 34.

Clause 27 of the bill provides that if a PCBU has a duty or obligation under this act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation. A breach of a duty by an officer is subject to penalty as outlined in clauses 2 and 3. The duties that relate to officers of strata or community titles corporations become less clear by virtue of clause 244 of the bill which deals with offences by bodies corporate.

Subclause (1) of that provision provides that any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate itself.

Regulation 7 of the proposed work, health and safety regulations provides that strata title bodies that are responsible for common areas used only for residential purposes are not classified as a PCBU in relation to those premises and, therefore, would not have duties under this bill. The exception does not apply if the body corporate engages any worker as an employee. However, where you have mixed-use premises, that is, premises that have both a residential aspect and a commercial aspect, the situation becomes less clear. The minister has provided me with written advice in relation to this issue which states that in terms of mixed-use premises, and I quote:

...the work health and safety laws would apply to the Strata Title body corporate if the body corporate employed someone or the body corporate had responsibility for areas used for commercial purposes. Therefore, officers of the body corporate would have a duty under the legislation to exercise due diligence to ensure that aspects of the building do not present a risk to those who use it. This would extend to, for example, ensuring that hazards, such as damaged floors in common areas were attended to so as to avoid trips and falls.

It is quite foreseeable that a strata title unit owner who is a member of the strata corporation only by the fact that they own a strata title unit in a mixed-use premises could be responsible for areas used as common areas or for commercial purposes. Further, it would not be impossible to imagine that the same strata title unit owner would potentially be captured by clause 244 of the bill. That is, the conduct of an agent or officer acting within his or her actual or apparent authority, could be attributed to the body corporate and, therefore, the unit owner who sits on that body corporate voluntarily.

This may sound like a very remote possibility but it is possible nonetheless and made even more likely by the increasing number of mixed-use developments occurring around Adelaide, principally in the CBD. The fact that this issue has recently been addressed by SafeWork Australia insofar as it relates to residential premises, demonstrates that it is one of growing concern. The amendment goes one step further to address the issue of mixed-use premises, an issue that was raised with me some months ago by industry groups involved in the management of strata corporations. In closing, the aim of the amendment is to provide a clarity for volunteer officers of prescribed strata and community title corporations. I urge all honourable members to support it.

The CHAIR: The Hon. Mr Darley, you spoke to both your amendments and, for clarification, you will be moving both your amendments?

The Hon. J.A. DARLEY: Yes, Mr Chairman. I move:

Page 33, after line 2—Insert:

(4) In this section—

prescribed strata/community titles corporation means—

(a) a body corporate established under the Strata Titles Act 1988 or the Community Titles Act 1996; or

(b) a company that holds land for the purposes of a building unit scheme consisting of 2 or more properties designed for separate occupation where the buildings comprising the scheme were erected before 22 February 1968.

The Hon. T.J. STEPHENS: If a strata group has a mixture of apartments where some are residential and some of the people who live in those apartments are officers of the strata group but also have apartments that they rent, where does that leave those people? Can you clarify that for me, please?

The Hon. J.A. DARLEY: Yes; those people are still covered by this amendment.

The Hon. R.P. WORTLEY: The government supports this amendment. It provides clarity for residents living in mixed residential/commercial accommodation under strata community title, confirming that private residents who volunteer as officers will not be liable for duties under section 27.

The Hon. R.I. LUCAS: Having heard the explanation I have some concerns relating to the amendment before the committee at the moment. During this long debate all sorts of people, including, as we have discovered, mums and dads who employ nannies, are going to be PCBUs and subject to the obligations, duties and responsibilities under the legislation. It is not entirely clear to me, and I am going to need some further convincing as to why, if this bill is good enough for everybody else out there in the community, including mums and dads who employ a nanny, it is that people in the circumstances the Hon. Mr Darley is talking about should get a free pass; that is, that they will be exempt. That is the first issue.

Certainly, the position we have adopted in the Liberal Party is that if the amendments in relation to control that we had moved had been accepted by the parliament we believe that would have resolved these particular issues; that is, the directors of these strata title corporations the Hon. Mr Darley is seeking to exempt and protect. If it can be demonstrated that they were in control of a particular issue then they could be held responsible and prosecuted. From our viewpoint, we think that is sensible, but in many respects, as I understand the argument from the Hon. Mr Darley, they are not; that is, they would not be deemed to be in control and therefore not responsible and therefore would not be prosecuted.

Again, if our control amendments had been accepted we think that would have resolved the sorts of issues the Hon. Mr Darley is now seeking to resolve because he has moved his amendment in relation to control and he is now moving these particular amendments in relation to strata corporations. The concern we have is: what is it that is so special about this particular group of people that they should be exempt from all of the rigours, responsibilities and requirements under the legislation?

Colleagues like the Hon. Mr Stephens have much greater experience in terms of the operations of strata corporations than I do and he has indicated, by way of his questions, that he has some knowledge of this area, but a number of lawyers have put to me the issue that there are a number of other organisations (for example, charitable foundations and others) which do good works.

They raise funds (because they are a charitable foundation), they get grants from state and federal governments, they build homes for homeless people or disadvantaged South Australian families and they manage those, and the people who operate these foundations are volunteers doing a community service but, nevertheless, having to make decisions which might be subject to this legislation.

So, the question that some lawyers have put to me is: if you are going to exempt directors of strata corporations, why should all these other directors in the many other organisations that one can think of not also be exempted from the provisions of the legislation? It comes back to the first question that I put: what is it that is so special about this group?

If this legislation is going to be the greatest thing since sliced bread in relation to occupational health and safety and if everyone else is exposed to it, including mums and dads employing nannies, why should the directors of strata corporations not similarly feel the full force of the magnificence of this legislation in terms of occupational health and safety? It seems extraordinary that minister Wortley should stand up in this chamber and support this, given all that he has been saying in relation to these issues and the importance of occupational health and safety.

Minister Wortley is quite happy to stand up as he did last night and say mums and dads employing nannies are PCBUs and they should have all these requirements that relate to occupational health and safety but, whilst he is happy to say that to mums and dads who employ nannies, he is obviously prepared to support an exemption in relation to these particular groups. I am seeking further evidence or argument from the minister or the mover in relation to why this group of people is so special compared to a number of other groups who do good works or who are volunteer directors and who might equally be subject to the force of the new Work Health and Safety Act.

The Hon. T.J. STEPHENS: If you do not mind, Mr Chair, I would stand to benefit, I suspect, in the long term from agreeing to the Hon. Mr Darley's amendment, but to me it smacks of absolute hypocrisy, so I want it on the record that I will be voting against this particular amendment.

The Hon. R.P. WORTLEY: You see in the very first part of the Hon. Mr Darley's amendment, 'to avoid doubt'. During discussions with the Hon. Mr Darley, the government's view and Safe Work Australia's view is that volunteer officers such as these involved in strata corporates are already excluded. However, we are happy to support the amendment merely to remove any doubt.

The Hon. T.A. FRANKS: My question of clarification to the mover was almost summed up by the minister. My reading of this is that it puts these particular people on parity and gives no doubt that they fall under the category of volunteer officers. Is that the case?

The Hon. R.P. WORTLEY: Yes.

The Hon. T.A. FRANKS: So they are not actually being given special treatment. There is already particular treatment for volunteer officers in this bill. The Greens are comfortable with that.

Amendments carried.

The CHAIR: The Hon. Mr Lucas, you have a further contribution to clause 34?

The Hon. R.I. LUCAS: Indeed I have. Can the minister clarify some legal advice provided to the opposition that the exceptions provision in 34(1)—'A volunteer does not commit an offence'—covers, for example, if a business person sits on a board of directors but does so as a volunteer (that is, takes no payment for his or her contribution to the board; it is a contribution to that particular board) so that this exception applies to that individual and that individual will be exempt from prosecution for any breaches of the Work Health and Safety Act?

The Hon. R.P. WORTLEY: If they are a volunteer director, they will be immune from prosecution for a breach of the officer's duty.

The Hon. R.I. LUCAS: That seems to be an extraordinary loophole. What the minister is saying is that if Alan Bond or James Packer—pick a name, people who do not need the directors' fees from serving on a number of these companies, someone who is independently extraordinarily wealthy—serve as a director for a company and do so as a volunteer, they are automatically exempt from any prosecution, and that is a piece of legislation that the Labor Party, the Greens and others want us to accept.

A very wealthy person in our community, through the device of not taking a payment as a director of a company, can automatically not be prosecuted. If they were smart, all of them would not take a salary or a fee, and the minister is saying that this model bill that has been developed will allow any wealthy businessperson in Australia to exempt themselves personally from any prosecution under this occupational health and safety act. I ask the minister: how does he see that as fair in terms of occupational health and safety legislation?

The Hon. T.A. FRANKS: Can the minister also clarify what the lines in the amendment that we have just passed, 'but may be liable for failure to comply with another duty under this act', would actually entail?

The Hon. R.P. WORTLEY: It is all very well for the Hon. Mr Lucas to use the example of Mr Alan Bond. The fact is that SafeWork SA and the government's view is that those people who are purely volunteers are not caught and cannot be prosecuted as an officer. In the case of Mr Bond being on a board and so on, you would probably find that he would be a PCBU himself; he would probably own half the company. I think you are going to extreme lengths—as you have done with the vast majority of these clauses—to denigrate the integrity of the clause.

The Hon. R.I. LUCAS: That is the most unconvincing response to a question I have ever heard—and I have heard a few from you over the last 48 hours. Putting aside Alan Bond, you can talk about your great mate Peter Malinauskas, if you like, or whoever, pick a wealthy businessperson in the community. There are a number who have been significant donors to the Labor Party in South Australia—pick any one of those, if you wish.

We are not talking here about strata corporations, we are talking about a company, any company or organisation, that might be in charge of a factory, a factory site, a business or whatever it is, and there might be the most horrendous occupational health and safety issues, and they might relate to asbestos or all sorts of issues. What the minister is saying is that he supports a wealthy businessperson or a wealthy union leader—and let us look at those because there a few of them sitting on boards and organisations—and, as long as they do not take a fee or a salary, they can fly through the coop.

So the company for which they are responsible can commit the most horrendous workplace safety offences and what the minister is saying is, 'Well, too bad. If you are wealthy enough not to need to take a fee or a salary, we are happy to let that go.' I am hoping the minister might actually have a more convincing explanation as to why he and the officers in SafeWork SA and Safe Work Australia, and their equivalents around the nation, are recommending this particular provision.

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