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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-01 Daily Xml
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WORK HEALTH AND SAFETY BILL

Committee Stage

In committee.

(Continued from 31 October 2012.)

Clause 155.

The Hon. R.I. LUCAS: I oppose this clause. The legal advice to the Liberal Party is that this is a new power for the regulator which goes beyond the existing powers in the Occupational Health, Safety and Welfare Act. The first point to make is that the essential powers of collecting information for the prosecution of offences are covered in subsequent clauses which relate to the powers for inspectors. One can see, under clause 160, the functions and powers of inspectors; under clause 163, the powers of entry; and, under clause 165, the general powers on entry, which are obviously wideranging in terms of being able to collect the evidence and information and being able to assist the investigation of an alleged breach of the act and being able to prosecute where it is deemed to be appropriate.

In relation to the regulator, one can see that the functions of the regulator are under clause 152, that is, essentially to provide advice, to collect information and publish statistics and a variety of other things like that in terms of sharing of information. The powers of the regulator are outlined in clause 153, which provides:

...the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions—

which are outlined in clause 152. Speaking broadly, that reflects the current position under the Occupational Health, Safety and Welfare Act. Clause 155 goes much further in that, in terms of the functions of the regulator in collecting information, it gives the regulator wideranging powers: the power to require documents to be produced, the power to require any person to appear on a day and at a time or place specified in the notice which is issued to that particular individual, to give either oral or written evidence of the production of documents and a range of other functions.

It is the view of the Liberal Party, having taken submissions on this from industry associations, that the government has not made a case for the requirements for the significant expansion of the powers of the regulator over and above the powers that exist within the existing act. I repeat: the issue in terms of the collection of evidence for potential offences is well and truly covered by subsequent clauses when one looks at the powers of inspectors of the regulator. For those reasons, I oppose the clause.

The Hon. R.P. WORTLEY: We support clause 155 as it enables the regulator to obtain information from a person in circumstances where the regulator has reasonable grounds to believe that the person is capable of giving information, producing documents or records or giving evidence. In relation to a possible contravention of the bill or that it will assist the regulator to monitor or enforce compliance with this bill, it is important for a regulator to have access to all necessary information in order to carry out its functions effectively.

Clause 155 enables the regulator to request information if it will assist the regulator to monitor or enforce the compliance of the act. I would also like to indicate in this committee that the government will be supporting the reinsertion of the right to silence, so protections are there. It will be moved by the Hon. Mr Darley. We believe there is ample protection for people under those provisions.

The Hon. T.A. FRANKS: The Greens will be supporting this clause. We believe the regulator needs strong powers to enforce occupational health and safety compliance. The National Review into Model Occupational Health and Safety Laws report recommended inspectors and regulators to have strong powers and ensure that they are able to enforce occupational health and safety. This is why we will support this clause.

The Hon. D.G.E. HOOD: Family First will be not be supporting the clause.

The Hon. J.A. DARLEY: I will be supporting the clause.

Clause passed.

Clauses 156 to 162 passed.

Clause 163.

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

Page 78, line 32—Delete 'suspects' and substitute 'believes'

The legal advice provided to the Liberal Party is that the more usual word used in these circumstances is 'believes' rather 'suspects', and for those reasons we move the amendment standing in my name.

The Hon. R.P. WORTLEY: We will oppose this amendment.

The Hon. D.G.E. HOOD: We will be supporting this amendment. Family First has had the same legal advice.

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

The Hon. T.A. FRANKS: Without the benefit of seeing this legal advice the Greens will be opposing this amendment.

Amendment negatived; clause passed.

Clause 164 passed.

Clauses 165.

The Hon. R.I. LUCAS: This amendment is consequential, so I will not be moving it. Again I make the point that I made earlier that this clause gives all of the required powers for inspectors within the regulator to ensure compliance with the Occupational Health and Safety Act; that is, it is the inspectors who need the powers in terms of the collection of evidence gathering information to assist in the prosecution of alleged offences under the legislation. That is the reason we gave earlier in relation to the move to delete the additional powers for the regulator.

Clause passed.

Clause 166 to 169 passed.

Clause 170.

The Hon. R.I. LUCAS: This amendment is consequential on an earlier amendment. I will not be moving it.

Clause passed.

Clause 171.

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

Page 82, line 23—After 'inspector' insert 'subject to the operation of section 172'

The Liberal Party first flagged the issue of the removal of the provisions that relate to self-incrimination, which are covered in clauses 172 and in 173. In parliamentary counsel's drafting of our package of amendments to achieve this right to silence or removal of self-incrimination provisions, parliamentary counsel has advised us that we are required to move this amendment to clause 171. We see this as the test clause for the issue which will be addressed more substantively in relation to 172 and 173.

I note that the Hon. Mr Darley, who has adopted the same position, has similar amendments to 172 and 173 but does not have this amendment for 171. I am assuming that the same parliamentary counsel drafted the amendment, so I am not sure what the distinction is. However, certainly the advice from parliamentary counsel to us is that there is a package of amendments to 171, 172 and 173 which is required to give effect to this removal of the right to silence issue, and they are all part of a package and consequential. We see this as the test clause on this issue, and if this one is successful the amendments to 172 and 173 are consequential.

This has been one of the very important issues that industry associations and others have felt very strongly about and lobbied very strongly on in relation to the legislation. The minister has, in a number of public interviews, attacked the critics of this provision by saying that it was an important provision, in his view, to be kept within the legislation. On FIVEaa, he indicated that in the interests of reducing the number of people who die from industrial accidents or who are seriously injured it was important that this provision be retained. He has indicated that this was an important part of the legislation. Again, the minister's backflip on this issue is inconsistent with his continued claim that the government's position is consistent with harmonisation of occupational health and safety laws.

One of my questions to the minister is: would any other jurisdiction under the harmonised laws that has introduced this have deleted these provisions? The clear to answer that is and will be no. The minister still clings to the facade of saying that none of the changes impacts on the core principles of harmonisation, and yet, as I said, he is on the public record, FIVEaa and a number of other media interviews as highlighting the importance of this particular provision in the harmonised legislation.

The opposition obviously welcomes the backflip from the government on this issue, its recognition that its previous position was incorrect and unsustainable, and its willingness now to accept the position put by industry associations forcibly, first raised by the Liberal Party, the Law Society and a number of other advocacy groups and flagged by way of amendment by the Liberal Party. For those reasons, I move the first of a series of amendments standing in my name which seek to remove these provisions from the legislation.

The Hon. J.A. DARLEY: Can I just ask the Hon. Mr Lucas to clarify with parliamentary counsel that that is the intention? I have basically the same amendment, but if that is the case I will be supporting this amendment.

The Hon. R.I. LUCAS: Parliamentary counsel's advice to me is that to meet the purpose that we have now all agreed we should, which is to remove what is known as the right to silence provision, we are required to move three amendments: an amendment to 171, which is the one we are debating; an amendment to 172, which is the substantive provision; and then the amendment to 173.

In looking at the amendments that have been drafted for the honourable member, the amendments to 172 and 173 are exactly the same as our amendments but, for some reason, the amendment to 171 is not in the honourable member's amendments. So the answer to the question is yes, parliamentary counsel's advice to me is that we require the three, and this is why he has drafted the amendments. I know that the honourable member has had copies of our draft amendments, and they have not changed over the period of time. The draft amendments are the same here. So the answer is yes, that is the advice that parliamentary counsel has provided to us, that it is part of the package.

The Hon. R.P. WORTLEY: The government will support this amendment. I must say that I had that opposition to this clause but, as we know, the dynamics of this council meant that because the opposition had put a position of total opposition to this bill we entered into dialogue and long and protracted negotiations with the Hon. Mr Darley. I do recognise and acknowledge the fact that there was a lot of concern about this particular clause amongst the business and legal fraternity, and even a number of unions. The Hon. Mr Darley took up their cause and as a result we are supporting this amendment and the Hon. Mr Darley's amendment.

The Hon. D.G.E. HOOD: I would like to place on record that Family First will most definitely be supporting this amendment. As this is the first clause that touches on this issue I will make a brief contribution on it. The right to silence is, of course, a fundamental aspect of our criminal justice system and something I think none of us would seriously consider removing for almost any reason, except perhaps in extreme circumstances—ones that, frankly, I cannot imagine. So the question has to be asked: why would we be doing that under these circumstances?

We need to understand that employers generally act in good faith, overwhelmingly so. There may be a very small element of rogue people out there acting as employers, but they would be in the absolute, absolute minority. In my estimate—not that we have any reliable figures on these sorts of things—I would imagine substantially less than 1 per cent of the employer pool, if I can put it that way. So why we would have a different set of rules for people like that, who are basically doing good things in the community—that is, providing paid employment and dignity for people to go about their daily business, enjoy a wage to take home and feed and house their family, etc.—why we would have a separate set of rules for these people, to demonise them, in such a way that they are somehow worse? We wouldn't consider removing the right of silence for accused murderers for example—

The Hon. R.P. Wortley: Ark Tribe had his rights removed.

The Hon. D.G.E. HOOD: In very extreme circumstances, that is the case.

The Hon. R.P. Wortley interjecting:

The Hon. D.G.E. HOOD: With that interjection, minister, are we pooling these employers with the sort of people you are mentioning? I don't think so.

The Hon. R.P. Wortley interjecting:

The CHAIR: The Hon. Dennis Hood has the call—

The Hon. D.G.E. HOOD: Ignore the interjection, sir? Yes, I will.

The CHAIR: —and is almost in robust agreement, so please continue.

The Hon. D.G.E. HOOD: Correct; thank you, Mr Chairman. I think I have made my point. My point is that employers are overwhelmingly doing very good things in our community. Do mistakes happen? Yes, they do. Are they regrettable? Absolutely. We should do everything we can as a parliament to ensure that those mistakes do not happen any more than they absolutely have to. I must say that I think that this is a pivotal amendment in this bill, and Family First will support it strongly.

The CHAIR: There is a further amendment to clause 171. The Hon. Mr Lucas.

The Hon. R.I. LUCAS: My amendment is consequential, and I will not be moving it.

Amendment carried; clause as amended passed.

Clause 172.

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

Delete this clause and substitute:

172—Protection against self-incrimination

A person is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

This amendment is identical to the amendment the Hon. Mr Darley intends to move. We had the substantive debate on this in clause 171; I do not intend to add to it.

The Hon. J.A. DARLEY: I will be supporting this amendment because, as the Hon. Rob Lucas has mentioned, the amendments are identical and, as a result of that, I will be withdrawing my amendments Nos 8, 9 and 10.

The Hon. R.P. WORTLEY: In accordance with the undertaking we gave to the Hon. Mr Darley, we will be supporting this amendment.

The Hon. D.G.E. HOOD: For the record, Family First supports the amendment.

Amendment carried; clause as amended passed.

Clause 173.

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

Page 83, line 24—Delete 'warn' and substitute 'advise'

This amendment is consequential on the previous debate.

Amendment carried.

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

Page 83, lines 26 to 29—Delete subclause (2)

This is a consequential amendment.

The Hon. R.P. WORTLEY: In accordance with our arrangements with the Hon. Mr Darley, we will be supporting this amendment.

Amendment carried; clause as amended passed.

Clauses 174 and 175 passed.

Clause 176.

The Hon. R.I. LUCAS: I oppose this clause. In speaking to my opposition, I refer members to clause 175, which gives very wideranging powers to the inspectors to seize evidence. An inspector who enters a workplace can seize anything—and I emphasise 'anything'—if the inspector reasonably believes 'the thing is evidence of an offence against this Act'. Subclause (3) of 175 states:

An inspector may also seize anything else at the place if the inspector reasonably believes—

(a) the thing is evidence of an offence against this Act; and

(b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence.

I am advised that they are broadly the powers that exist within the occupational health and safety act in South Australia at the moment. It is quite clear that they are broad, sweeping powers. If there is anything that the inspector reasonably believes is required in terms of evidence, then the inspector can seize that evidence. The legal advice provided to me is that 176 for some reason seeks to go beyond that. Parts of it reflect 175—it just repeats it—but one of the things that 176 seeks to do is actually provide that 'the inspector may seize the workplace'.

One can understand why equipment or documents or machinery or anything like that may need to be seized in terms of the contravention of an act, but why does an inspector need the power actually to seize a whole workplace—a whole factory, for example—to prosecute an alleged contravention of the act? The legal advice to me is that this goes way beyond the existing powers in the act in South Australia. Nobody has provided thus far any evidence as to why there is the power to seize a workplace, as opposed to machinery and all those sorts of things.

The inspectors also have powers obviously to cordon off parts of a workplace if that is required in relation to the investigation of a particular alleged breach of the occupational health and safety act, or under this, the work health and safety act. So, there are wideranging or sweeping powers under 175 to seize anything that is required for evidence and we see no justification for the power to be given to an inspector to seize a whole workplace, a whole factory, in terms of its investigation.

For those in this chamber who support this sweeping new power, we seek from the minister and anyone else who is supporting the power the reasons why an inspector should be given the power to seize a whole factory in relation to the investigation of an alleged breach of the occupational health and safety legislation. We think that the powers are already sweeping and that there is no need and there has been no evidence produced to justify why it should be broadened to this particular step, where an inspector is given the power to actually seize a whole workplace.

The Hon. R.P. WORTLEY: Clause 176 enables an inspector to seize a workplace or part of a workplace, plant or substance or a structure only when they reasonably believe that it is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur. A workplace could be a truck, a taxi or a whole number of issues. It could be a building that is so dilapidated that it is actually dangerous to be working in it. Section 38(4) of the current Occupation Health and Safety Act 1986 states that:

...if the inspector suspects on reasonable grounds that an offence against this Act has been committed, seize and retain anything that affords evidence of that offence, or in relation to which the offence is suspected of having been committed.

The Hon. Mr Lucas by his own admission on FIVEaa made clear that the Occupational Health and Safety Act has served us well, it was a good act, so why would we not insert into the new act something similar to what is in the current act, which has served us well over many years and helped us reduce injuries in this state over the last 10 years by 40 per cent? Why would we not make sure the new act has similar provisions?

All jurisdictions had similar provisions prior to the development of the model Work Health and Safety Act. Already Queensland, New South Wales, the commonwealth, the ACT, the Northern Territory and Tasmania—and hopefully soon South Australia—have the same provision in their acts. The national review of the model laws noted that the model act should provide for all of the powers currently provided in occupational health and safety acts that may be exercised by an inspector in relation to testing analysis, seizure and forfeiture of plant and substances. This is an important power for inspectors to ensure compliance with the legislation.

An inspector's power to seize will only arise in the most dangerous of situations, and if those circumstances seek to exist it will be reasonably expected that the seized items will be returned immediately. There is no impact on a person's proprietary title to the place or thing. Procedures are included in the bill for return of seized things in clause 180 and access to seized things in clause 181.

Inspectors are subject to the regulator's direction and oversight and also other checks and balances in the provisions, including the requirement for written notice to be given of the decision and the requirement to provide a receipt for seized things. The protections when an inspector seizes goods are greater under the Work Health and Safety Bill than under the current South Australian law.

The Hon. R.I. LUCAS: The minister does not understand the existing act and indeed the powers in the bill. As I read out, clause 175, which we have just passed, reflects the existing powers under the Occupational Health and Safety Act. So the provision he read out makes no reference to seizing a workplace—it says that in essence you can seize whatever you need to assist in the investigation of alleged contravention of the act.

The words in the existing act that the minister read are reflected in the proposed bill, but in clause 175. So, when the minister says, 'Why would not we support the existing position in the act?', we are. That has already just been passed in clause 175. For the benefit of the minister, he might like to look at clause 175 and apprise himself of the fact that that is actually a reflection of what exists in the existing act (and that is the legal advice provided to us).

Clause 176, which we are debating here, is not in the existing act. There is no reference, that the minister can show in the existing act, where the inspector is given the specific power of seizing a workplace. I challenge the minister to quote from the existing act any reference to an inspector having the power to seize a workplace. What is in the existing act is what is covered under clause 175 of the current bill. An inspector can seize whatever is required to assist in the investigation of the prosecution of alleged contravention of the act. The minister then introduces a furphy and says, 'What happens if the whole building is decrepit or a danger to workers?'

I am surprised that the minister is unaware under the existing act, for example, of the issue of prohibition notices. If that was the circumstance, if an inspector is of the opinion that there is an immediate risk to the health and safety of persons at work because the whole building is unsafe, they are able to issue a prohibition notice. So, there is the power to protect workers if there is a danger at work without actually having to give power to the inspector to seize the whole building.

The minister's logic is deficient in terms of trying to raise the furphy that we are somehow leaving workers at risk in a building that is unfit or unsafe for the workers who work within it. The existing act gives the inspectors the power for prohibition notices. There are similar powers in the proposed bill for those particular circumstances, which we obviously support. No-one supports workers being required to work in a workplace where it is unsafe.

Equally, as the minister should know, a worker can refuse to work if they are in an unsafe workplace, and the health and safety representative can call everyone out and close down a worksite if there is a danger to workers as well. There are a number of protections short of the inspectors in relation to the sort of circumstance that the minister is suggesting. Certainly none of the aspects of the minister's attempted justification of this new power hold any weight at all in relation to justifying why an inspector should be given this extraordinary additional power to seize a whole factory when that is not specifically provided for under the existing act.

The Hon. R.P. WORTLEY: As I have stated before, in the significant amount of time I have engaged in consultation with everyone, I have not had any concerns on this clause expressed to me. Consistent with what we currently do, clause 175 is post breach (that is, collection of evidence), whereas clause 176 requires the need to seize things that might be hazardous or a defection—for example, it could be a truck, a boat or a taxi, as I have stated before.

The whole idea of this is to update the old act of 1986. Things have changed. We acknowledge now that there is a much wider net to be cast over the various employment relationships. We also want to make it quite clear that workplaces are not just factories. Workplaces are things that could be moveable or of a different nature. We oppose his position.

The Hon. D.G.E. HOOD: Family First does not support this clause. I have no doubt that the minister is telling the absolute truth when he says that this issue has not been raised with him, but it is probably because there were so many other issues in this bill that were raised with him that people did not have time to raise this particular issue with him.

The truth is that the seizure of goods, items, factories or whatever it may be is a very serious thing. Our current system where prohibition notices are able to be used—and are used, in fact; on my understanding are used quite appropriately—seems to be working very well. To then increase that jurisdiction or that power by introducing a new power which enables the seizure of what are assets belonging to somebody, we are really entering the realm of law enforcement. This is a power that rightly belongs with the police, in my view. For that reason, we will not be supporting this clause.

The Hon. R.I. LUCAS: I ask the minister: if the regulator seizes a property under this provision, does that restrict the capacity for the owners of that property to transact businesses by way of sale during the period for which SafeWork SA holds or has seized that property?

The Hon. R.P. WORTLEY: If a workplace is seized—for instance, a truck—and they have seized it because it is extremely dangerous and could have the capacity to cause death or injury, and those are very extreme cases, there will be no ability for someone to sell on that truck, if that is the question you are asking.

The Hon. R.I. Lucas: I am not talking about a truck: I am talking about a building, but you can talk about a truck.

The Hon. R.P. WORTLEY: A workplace.

The Hon. R.I. Lucas: Yes.

The Hon. R.P. WORTLEY: If it is seized in very extreme cases, where they believe that the degree of seriousness is so great that it could cause death or injury, no, they will not be able to onsell that.

The Hon. R.I. LUCAS: Let me just highlight that there is nothing in clause 176 which says it is limited to the circumstances where the breach may well cause death or serious injury, it is just the investigation of a contravention against the act. Clause 176(1) talks about 'serious injury or illness or a dangerous incident to occur'.

Given the situation in relation to SafeWork SA, on some occasions it can take a year or up to two years (I am not sure what the limitation is) for SafeWork SA to investigate and eventually bring charges or not. What we are actually saying is that you may well own a building, SafeWork SA may well seize that building and, for a period of maybe up to two years—the minister can indicate whether or not that is the appropriate period—you will be left in a position where SafeWork SA will, in essence, have seized control of the building.

They may not actually institute charges at the end of it, but you will have actually lost any ability—your business might be going down the tube or whatever else it is—to, in essence, sell the factory or sell the building and protect the jobs of the workers who are there because SafeWork SA has been given the power in this legislation to seize the whole factory or the whole building.

If there is a change of ownership and so on, you obviously do not and cannot absolve yourself from any potential offence under the legislation; you will obviously still be caught or covered by a potential breach. But, given the time SafeWork SA takes to investigate some of these things—and eventually, as I said, they might not even proceed with a charge—to give them the power to seize a whole factory or a whole building in relation to these circumstances seems to be an extraordinary power that goes beyond the powers that exist within the legislation at the moment.

The Hon. R.P. WORTLEY: Under clause 176, subclause (1), you have paragraphs (a), (b), (c) and (d), which provide:

(1) This section applies if an inspector who enters a workplace under this Part reasonably believes that—

(a) the workplace or part of the workplace; or

(b) plant at the workplace; or

(c) a substance at the workplace or part of the workplace; or

(d) a structure at a workplace;

is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur.

I argue that, if there is a plant or a workplace which is so dangerous to the degree that it will cause serious injury and, naturally, death could follow from that, it is quite appropriate that, for public safety, that plant/workplace is seized.

The Hon. R.I. LUCAS: In the circumstances the minister has indicated you have the power to issue a prohibition notice, which in essence closes everything down. If it is a safety issue for workers, the workers themselves and the health and safety rep have got powers anyway to protect the workers. If you are concerned about the issue of inspectors, under 195, and what follows, you have the power to issue a prohibition notice. If any activity is occurring in a workplace and involves, or will involve, a serious risk to the health or safety of a person you can issue a prohibition notice.

In the circumstances the minister is talking about you do not actually need to seize the whole factory or the whole building; you can issue a prohibition notice to protect the workers. We all support the protection of workers in the circumstances that the minister is talking about; that is not an issue. The issue is: does the regulator need the power to seize the whole factory or the whole building? Our view is that you do not.

The Hon. R.P. WORTLEY: It is likely that a prohibition notice would have been issued, and once they complied with the prohibition notice they can return to the workplace. What we are saying here is that it is only in cases where the workplace itself is considered to be so dangerous that it is a threat to life and limb. I see nothing wrong with a situation where if a factory is so badly dilapidated and it is a health and safety issue that it be seized. Once it has been rectified they will be returned. I really cannot see the objections of the Hon. Mr Lucas.

The Hon. J.A. DARLEY: Just by way of clarification, can the minister advise whether SafeWork SA seized the whole of the property at Gladstone at the explosive factory and also Diemould where Daniel Madeley died?

The Hon. R.P. WORTLEY: Yes, we did.

The Hon. T.A. FRANKS: That was a very useful question, and I thank the Hon. John Darley for that. I indicate the Greens will not be supporting the amendment to delete this clause. We are looking at particular cases which are the most extreme. It is our understanding that similar powers do exist in Victoria and a similar model exists in Queensland. These are obviously subject to regulated oversight checks and balances, and there are other protections in the bill that will ensure that this power will not and cannot be misused. It is also not lost on me the irony that recently we had asbestos in the other chamber of Parliament House, and I do not think anyone would have argued against the closing down of the other chamber.

The Hon. R.I. Lucas: You would have argued against SafeWork SA seizing it.

The Hon. T.A. FRANKS: In the case where I was working at a particular workplace that was so unsafe that I would be putting my health at risk—

The Hon. R.I. Lucas interjecting:

The Hon. T.A. FRANKS: Then I am glad that the law is there in those most serious of cases to protect my safety as a worker.

The Hon. D.G.E. HOOD: I do not want to prolong this, but I just want to be clear in my mind. Can the minister outline the circumstances in which a prohibition notice would not be sufficient and would require seizure of a building or asset?

The Hon. T.A. FRANKS: While we are waiting, can I ask a further question? I lost my train of thought, given the interruption previously. I also wanted to ask the minister whether or not, if this power was removed, a worker would be able to prosecute the PCBU for not having duly secured their safety in that workplace.

The Hon. R.P. WORTLEY: To answer the Hon. Mr Hood: as an example, where there is a substance at the workplace presenting a hazard for workers, inspectors may need to seize it rather than to put a prohibition notice on it. Could the Hon. Ms Franks repeat her question, please?

The Hon. T.A. FRANKS: Should we delete this particular clause, would a worker be in a position to take legal action against the PCBU for not ensuring that the workplace was safe, and how would that happen?

The Hon. R.P. WORTLEY: Our advice is no.

The committee divided on the clause:

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

Majority of 1 for the ayes.

Clause thus passed.

The Hon. R.I. LUCAS: My amendments Nos 79 to 88 are consequential, so I will not be moving them.

Clauses 177 to 229 passed.

Clause 230.

The Hon. T.A. FRANKS: I move:

Page 102, after line 28—Insert:

or

(c) in the case of a summary offence by an official of a union any member or members of which are concerned in the matter to which the proceedings relate.

Put simply, this is an amendment that would enable union prosecution of breaches of this act. This amendment seeks to insert provisions for a union to prosecute an employer or a PCBU who has breached safety standards in a workplace. Indeed, it is a scheme that has been adopted in the state of New South Wales under this harmonised system. There is a distinct advantage in improving health and safety in a workplace by allowing a union which represents its members in that workplace to bring prosecutions where practices have breached the occupational health and safety standards.

In fact, while union-led prosecutions are rare, it is a very useful mechanism for strengthening the safety standards for workers and also for the community at large. I will highlight that by sharing with members the example of the Finance Sector Union, which successfully ensured the health and safety of bank employees who were facing a series of armed robberies at various New South Wales bank branches.

These armed robberies not only hindered the health and safety of those bank workers but, of course, they affected the safety of the public. The successful prosecution of this case resulted in New South Wales banks investing around $100 million to improve the safety standards of their workplaces, and that is a significant amount. This included full-height anti-jump barriers, ATM bunkers, digital-controlled circuit TV and other measures. But as a result, there was a dramatic fall in armed robberies, from 102 in 2002 to just four in 2010

This is just one example of a successful union-led prosecution. It is a useful amendment and, of course, it was a Greens amendment originally in New South Wales. I would note that it continues to be upheld under the O'Farrell government, and it has support from various sides of politics. It is a common-sense amendment, and I commend it to the committee.

The Hon. R.P. WORTLEY: I do acknowledge that a similar clause was passed in the New South Wales upper house. This government is committed to trying, where possible, not to alter this bill. We want to keep within the framework where it as much as possible harmonised legislation, and we believe that what we have now, as an outcome through negotiations, does not really affect the pillars of this legislation.

The government considers that part 13 of the bill provides transparency and accountability of all proceedings brought under the bill. This is facilitated by a requirement on the regulator to issue and publish guidelines about the prosecution of offences under the bill, and also the ability of the DPP to bring proceedings if the regulator does not. Clause 31 allows for a review by the DPP of a regulator's decision not to prosecute a category 1 or category 2 offence. We will not be supporting the amendment.

The Hon. R.I. LUCAS: It will not surprise the Hon. Ms Franks that the Liberal Party will not be supporting her amendment either. Her amendment seeks to increase massively the power of unions and union leaders in South Australia's industrial relations and occupational health and safety system. However, at least the Liberal Party's position on this and amending the bill has been a consistent one.

I think the hypocrisy of the minister's position and that of the Premier and the Labor Party is stark and apparent to anyone and, I suspect, even to the Greens. The minister's position, up until recently, has been at least a consistent one; that is, he refused to amend the bill because he agreed to introduce the model and harmonised bill. So, he could say to the Greens and the union leaders who want this change, 'I am sticking to the position that this a national agreement, a harmonised bill, we're not going to amend it.'

However, he has lost that defence. He has now amended the bill in a number of significant areas, as he has had to indicate during the debate on the bill. So, he no longer has the defence to be able to say to the Greens or to the unions, 'I'm not going to amend this bill because it will offend against the harmonisation principle.' In essence, what he is saying is that he is not going to support the amendment from the Greens and the position the unions want but that he will support some of the other amendments that he has indicated his willingness to support.

Whatever one thinks of the Greens, on one hand, in relation to their position or, indeed, the Liberal Party, at least we have been consistent in our position that the bill can be amended. The hypocrisy of the minister's position and that of the Premier and the Labor government is all too apparent to anyone who has followed this debate.

The Hon. B.V. FINNIGAN: I support the Hon. Ms Franks' amendment in principle. I accept that it is not going to be part of the bill, but the ability for unions to prosecute has existed in New South Wales for many years. I do not think it has been the subject of wide abuse. It would be a very expensive proposition for any union to undertake a prosecution, so it is very unlikely that they are going to do so unless they were satisfied they had a reasonable chance of success, so I do not think it is likely to be abused.

It would seem unusual, perhaps, for a non-state entity to be prosecuting, but it is not unheard of in other areas, particularly in the health and safety and industrial relations area where you have quasi-judicial tribunals rather than the traditional courts. I do support the amendment or certainly the concept of the unions having that prosecuting ability.

The CHAIR: The Hon. Ms Franks, my understanding is that all three amendments are related. Are you going to move all three?

The Hon. T.A. FRANKS: I am happy to see them moved as a package. I move amendments [Franks-3] 7 and 8:

Page 103—

After line 7—Insert:

(6a) To avoid doubt, subsection (1)(c) does not authorise a person to proceed under subsection (4).

After line 14—Insert:

(10) In this section—

official of a union means a person who holds an office in, or is an employee of, a union.

The writing is on the wall. I know that I do not have the support of the council. I am surprised, actually, that the opposition does not at least support these amendments in principle, if not in practice, given some of the speeches that we have heard and particularly the criticisms of the Salvemini prosecution and SafeWork SA specifically.

Certainly, in New South Wales, the Greens offered to other players here and certainly to employers the option to prosecute breaches but, in fact, there was no great interest shown in that and so it simply stayed with the unions being able to prosecute. I would like to note that I have certainly had discussions with Andrea Madeley and I do understand that, in some jurisdictions, it is not only unions that could prosecute those breaches but also potentially families or supporters in particular cases.

It is obviously not something you would enter into lightly but certainly it is something that the Greens would bring back to this chamber in another form. With that, I will not be dividing on this particular amendment and I will not pursue the subsequent amendments but I certainly would like it on record that there was a lost opportunity here to improve the prevention of occupational health and safety breaches and also to improve the options for those who do in fact, in the very worst examples, lose a loved one to a death in the workplace.

Amendments negatived; clause passed.

The Hon. R.I. LUCAS: My next amendments are consequential, so I will not be moving them.

Clauses 231 to 268 passed.

New clause 268A.

The Hon. T.A. FRANKS: I move:

Page 114, after line 4—Insert:

268A—Industrial manslaughter

(1) An employer is guilty of an offence if—

(a) the employer breaches a duty imposed under Division 2 of Part 2; and

(b) the employer knew, or ought reasonably to have known, or was recklessly indifferent as to whether, the act or omission constituting the breach would create a substantial risk of serious harm to a person; and

(c) the breach causes the death of a person (whether or not the person was an employee of the employer and whether or not the death occurred in a workplace).

Maximum penalty:

(a) in the case of an employer who is a natural person—20 years imprisonment;

(b) in any other case—$1,000,000.

(2) An officer of an employer that is a body corporate is guilty of an offence if—

(a) the officer engages in conduct that, had the officer been acting within the scope of his or her actual or apparent authority, would be imputed to the employer pursuant to section 244; and

(b) the conduct would, if so imputed, constitute a breach by the employer of a duty imposed under Division 2 of Part 2; and

(c) the officer knew, or ought reasonably to have known, or was recklessly indifferent as to whether, the act or omission constituting the breach would create a substantial risk of serious harm to a person; and

(d) the breach causes the death of a person (whether or not the person was an employee of the employer and whether or not the death occurred in a workplace).

Maximum penalty: Imprisonment for 20 years.

(3) It is a defence to a charge of an offence against this section for the defendant to prove that the act or omission alleged to constitute the breach—

(a) occurred in the course of an emergency; or

(b) was authorised under this or any other Act or law of the State or the Commonwealth.

(4) Nothing in this section prevents an employer and an officer of the employer from both being guilty of an offence against this section in respect of a particular death.

(5) For the purposes of this section—

(a) the way in which the activities of the employer were managed or organised causes a breach of a duty if it substantially contributes to the breach;

(b) a breach of a duty causes the death of a person if it substantially contributes to the death.

(6) An offence against this section is a major indictable offence.

(7) Section 267 of the Criminal Law Consolidation Act 1935 does not apply in respect of an offence against this section.

(8) If at the trial of a person for an offence against this section the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under Division 5 of Part 2, the jury may bring a verdict that the accused is guilty of that offence.

This amendment is a long overdue measure, and I previously brought it before this council in the form of a private member's bill, as I note the former member the Hon. Nick Xenophon also undertook to do. It seeks to capture the minority of employers who cruelly put workers through unnecessary risk. It introduces the concept of industrial manslaughter into our state laws, and the intentions and the implications of this amendment would only apply in the event that a worker tragically died.

Putting people's lives at risk for the sake of cost cutting or other reasons is unacceptable. The statistics speak for themselves: on average one person dies every three days in Australia from a work-related incident. This is an unacceptable figure. For every death, there are many more who lose part of their lives, their children who live their life without a mother or a father, perhaps a partner is lost to a loved one. These people who are left behind have to struggle with coming to terms with having to bury either their child, their brother, their sister, their grandparent, their uncle, their aunt, their cousin, their friend or their colleague. It is far too often a needless death, and of course this would only apply in those particular cases.

Companies must and can continue to do all they reasonably can to prevent workplace injuries. This amendment would ensure that culpable employers are held responsible for workers' deaths. If they do not take that responsibility, this is a stick rather than a carrot that would apply, introducing the concept of corporate criminal responsibility.

I note that industrial manslaughter exists in the ACT and has done for some time, and certainly I note that Greens around the country are pursuing industrial manslaughter in various jurisdictions, including the Hon. Alison Xamon in WA. The United Kingdom has industrial manslaughter within its statutes, and as legislators we are beholden to ensure that there is genuine incentive for employers to ensure they are providing safe work places. We provide many carrots and we all hope that the worst does not happen, but this amendment would only come into play where the worst has happened and a worker has died. These are the most significant and devastating incidents of a breach of workplace health and safety that we can imagine.

I do not expect the Liberal Party to support this amendment, although I am always happy to be surprised and would be pleasantly surprised should we receive that support, but I note that they went to the 2010 state election with a specific policy that said that they would not support industrial manslaughter. I certainly do not expect to get the numbers here today, but I would hope that this issue will not fall off our legislative agenda. With that, I commend this amendment to the council.

The Hon. R.P. WORTLEY: The government is sympathetic to the symbolic appeal to the community of industrial manslaughter offences, but supports the use of offences based on recklessness to risk as superior options that retains consistency with current occupational health and safety legislation nationally. The bill does not specifically establish an offence for industrial manslaughter.

The national review into model occupational health and safety laws commissioned by the federal government in 2008 considered this issue as part of its assessment of the types of offences that should be included under harmonised model occupational health and safety legislation. In particular, it examined offences relating to work-related deaths and serious injuries that arose in workplaces. It noted that the Australian Capital Territory was the only jurisdiction that had a specific offence for industrial manslaughter. It was also noted that this offence was contained in its criminal code and not specifically in the occupational health and safety legislation.

The review further noted that the previous reviews of occupational health and safety laws undertaken in the last 10 years in Australia—that was in Victoria, New South Wales and South Australia—all had recognised the seriousness of work-related deaths but that there was no common ground as to how occupational health and safety acts should deal with industrial manslaughter. The review's report did not recommend that industrial manslaughter be a separate offence under any proposed model occupational health and safety legislation. In accordance with that, we will be opposing this amendment.

The Hon. R.I. LUCAS: The Liberal Party has long opposed the introduction of industrial manslaughter laws in South Australia. The Hon. Ms Franks has rightly quoted a specific policy commitment given by the party at the last election, and I suspect previous elections, and we will be adhering to the promises and commitments we gave to the electorate at the time of the last election on this particular issue.

The Hon. B.V. FINNIGAN: I support the concept of industrial manslaughter offences. When I was on the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation dealing with this, we did an inquiry inspired or moved by the Hon. Mr Xenophon (now Senator Xenophon). While the majority of the committee, including myself, did not support a change to the law, I think there is a clear case for industrial manslaughter legislation. I am not certain that the Work Health and Safety Bill is an appropriate place for it. I think it probably belongs more properly in the criminal law and that any prosecution ought to be in the Supreme Court rather than through any work tribunal, given the severity of the offence and the potential penalty.

I am not aware that there have been any successful prosecutions in the ACT but I am not certain of that. It would be extraordinarily difficult to prove as an offence, so I think the sort of hysteria that gets whipped up about it amongst employers on occasion, whenever it rears its head, is a bit exaggerated. This amendment would need a lot closer consideration, given the importance of it—certainly there will not be majority support for it anyway—but I do place on the record that, in principle, I think industrial manslaughter is an offence that ought to be recognised in state law.

The Hon. J.A. DARLEY: I believe the matter of industrial manslaughter is not an issue for debate in this bill. I believe it should be debated as a separate issue and, therefore, I will not be supporting the new clause.

New clause negatived.

Clauses 269 and 270 passed.

The Hon. R.I. LUCAS: My amendments Nos 95 and 96 are consequential, so I will not be moving them.

Clause 271 passed.

Clause 272.

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

Page 115, line 18—Delete ', limit or modify' and substitute 'or limit'

This is not an amendment of great significance, but the legal advice provided to us is that the words 'limit or modify' can be succinctly summarised as 'limit'; it means the same thing. The words 'or modify' do not actually add anything to the clause.

The Hon. R.P. WORTLEY: The government opposes the amendment.

The Hon. D.G.E. HOOD: We are happy to support the amendment. I do not think it makes a big change.

Amendment negatived; clause passed.

Clause 273.

The Hon. R.I. LUCAS: I oppose this clause. This is of some significance to some industry organisations and, in particular, the Master Builders Association. They have asked that the potential unforeseen implications of this provision at least be understood by members and considered before they support the existing provision. The Master Builders Association have provided quite a lengthy submission to interested members, which I will share with the committee.

The Master Builders write:

This clause, while perhaps paved in good intentions, will be unworkable in practice. It is common for a person to levy someone for things done in relation to WHS matters. For example, an employer may issue personal protective equipment but require an employee to pay the cost of that equipment if it is lost or damaged as a result of the employee's conduct. This is a reasonable course of action that would be prohibited. The only alternative that would be left for the employer in this situation would be to discipline and/or terminate the employee. One can hardly consider this as a desirable outcome but the alternative of asking to repay the monies would be an offence. Recovering monies from employees in such circumstances is already heavily prescribed in the Fair Work Act 2009 and modern awards and agreements made under that legislation and are subject to numerous safeguards.

The arrangements between the extended definitions of 'worker' are commercial arrangements and there is no justification provided as to why, for example, a builder could not charge a subcontractor a portion of the cost of scaffold hire that they use. The alternative is [that] each party would need to provide all safety equipment themselves. This loss of efficiency would lead to unnecessary cost increases. As a result, Master Builders urge a reconsideration of this provision, which adds little (if anything) to safety but considerably restrains a PCBU in its ordinary activities.

Also, the Master Builders in another submission have highlighted that:

...it is common practice for an employer to provide high level WHS training (such as a Diploma or Degree qualification) which is transferable from one employer to another, on condition that the employee stay employed for a period of time following provision of the training. This clause would prohibit this and therefore make employers more reluctant to provide such training, to the detriment of the industry.

What the Master Builders Association are saying is that there exist what they believe to be sensible practices which up until now have not been objected to by employees, workers or unions who represent them in relation to these particular arrangements. In the first example it would seem eminently sensible that, if an employee's conduct has damaged the equipment which has been provided free to an employee, it is a preferable course of action to say they have to replace the equipment because the worker has damaged it as a result of their actions rather than take disciplinary action or terminate the employee's employment as a result of their behaviour.

The MBA are saying that there are existing practices. The last example is in relation to high level WHS training such as diploma or degree qualifications. In the other examples that the MBA have given they believe that perhaps those who have drafted this legislation at the national level have not understood the reality of what goes on in the workplace in relation to these issues. On legal advice that the MBA has received, this particular provision would prevent all of those existing circumstances from continuing.

The Hon. J.A. DARLEY: I have similar concerns to those of the Hon. Mr Lucas. I understand it is a common practice for an employer to require an employee to pay for personal protection equipment in instances where the employee has repeatedly lost or damaged the equipment issued to them. There is some concern that this would not be allowed under the bill and that the only alternative would be for the employer to take disciplinary action against or terminate the employment of the employee. According to the Master Builders Association, recovering moneys from employees in such circumstances is already heavily prescribed and subject to safeguards under the Fair Work Act. Can the minister provide clarification regarding the intent of clause 273 in light of these concerns?

The Hon. R.P. WORTLEY: In regard to the clarification required by the Hon. Mr Darley, the intention of this clause is to prevent a person conducting a business or an undertaking from charging workers for anything done directly by the PCBU for the worker, or provided by the PCBU to the worker, relating to the worker's health and safety. The clause does not intend to interfere with commercial relationships that may exist between PCBUs and subcontractors relating to the contracting of projects.

Further to this, regulation 46 of the work, health and safety regulations specifically requires a worker to take care of personal protective equipment. Furthermore, the bill requires a worker to cooperate with any reasonable policy. Accordingly, there are a number of provisions within this legislation that would help to avoid the situation referred to by the honourable member. It is also worthy to note that industrial laws prevent the deduction of any money from a worker's wages without their consent.

Once again, I had quite significant consultation with the employers associations, and at no time was that brought up with me as an issue. The MBA was represented on the local SafeWork SA Advisory Committee. The MBA is represented nationally through their representative on Safe Work Australia, which is the Australian Chamber of Commerce and Industry. They ticked off on this legislation, so why are we seeking to change something which the MBA nationally and in this state have given the green light to? I would urge everyone to oppose the amendment.

The Hon. R.I. LUCAS: The minister this morning has again repeated on a number of occasions that in all the consultation particular issues have never been raised with him. Can I outline to the committee that the minister made that claim late last evening in relation to this controversial issue (which has attracted some publicity this morning) about the removal of the exemption for small businesses for the costs of training for health and safety representatives.

The minister said last night the same thing he has just said, that, 'In all the consultation over a long period of time this issue has never been raised with me, no-one has ever protested.' My office contacted the MBA this morning and asked, 'Is that claim from the minister true?' The MBA representative told my office that it is not; that they have long protested to the minister and the minister's representatives in relation to the exemption issue for small businesses which exists in South Australia being removed.

So, whilst I hear what the minister has said on two occasions this morning that, 'In all the consultation no-one has ever protested, no-one has ever raised this with me,' all I can say is that the minister said exactly the same thing last night in relation to a controversial issue, and the first organisation we rang today (the MBA) has denied what the minister said and has indicated that one part of the MBA's position has been for quite some time to protect the position of small businesses in South Australia. I take with a grain of salt the minister's claims that no-one has ever protested about this because as soon as we check these things we pretty quickly find that his particular claim is not true.

The Hon. B.V. FINNIGAN: I support this clause. There are instances I can think of where employers and employees enter into an arrangement to, say, pay for health and safety courses or particularly tertiary qualifications and things like that, or for additional personal protective equipment that may not be—I will not say necessary—obligatory, shall we say, and where the employee will contribute to the cost of those things. However, I am assuming that they do not count as an imposition because it is a voluntary arrangement.

In relation to personal protective equipment it is very important and we know that employers are obliged to provide whatever PPE is necessary for the worker do their job. I understand the point that the Hon. Mr Lucas and the Hon. Mr Darley are raising. Some of this stuff is very valuable and we certainly would not want a situation where every two weeks someone is coming back and saying that their very expensive safety boots or overcoats or whatever have disappeared and they want another one, but I think that would certainly be the exception rather than the rule.

If somebody has entered into an employment arrangement on the basis that they are told, 'You're given this and if you should lose it or require it to be replaced you will have to pay for it,' I am not sure how that would intersect with this clause. However, the notion that it is going to be a particular problem in relation to PPE I think is unlikely.

The Hon. D.G.E. HOOD: My reading of clause 273 is—and I am sure this is not the intention, by the way, but I think it could reasonably be argued—that somebody could be provided, as they should be, with appropriate safety equipment and clothing, etc., on the very first day of their employment with an organisation, that they could take that home (and I am not suggesting that anyone would do this but it would be possible under this reading), they could then sell the stuff on the internet that night and turn up the next day and say, 'I need more,' and that the employer would have no option but to provide it in full as they did the day before, because charging the worker anything at all, as this very clearly says, would mean that they are in breach of the act should this bill pass and become an act.

I am sure that is not the government's intention but I think the Hon. Mr Lucas has a very strong point here: it could easily be abused and I think that is the point. Up until now we have had a system which I think works well and is respected by workers and employers: that is, people are issued with appropriate material and if, through some reason, it needs to be replaced then, in most circumstances, employers do that at their cost. However, if there has been some negligence on the part of the employee there may be a levy imposed, and I think that is not unreasonable.

This clause, however, could be abused as it says very clearly that if they impose a levy or charge or permit a levy or charge to be imposed on a worker for anything done or provided in relation to work health and safety, then they are in breach—so anything. It needs to be kept as provided at the employer's cost, that is what this clearly says. I am sure that is not the intention but that is what it says. That being said, Family First will support the amendment for that reason.

The Hon. R.P. WORTLEY: The Hon. Mr Lucas has brought into question whether I am telling the truth in this chamber with regard to the consultation and the support that the MBA has given. It is quite clear, and I would like to make it clear to the people in this chamber, that the MBA was part of the SafeWork SA Advisory Committee. They were at the meeting where they ticked off on this, and the minutes were there. So who do you believe: someone who actually knows, who was there at the meeting, who ticked off on it, or the Hon. Mr Lucas who, right through this debate, has thrown up all sorts of straw men and issues that, to some extent, really defy imagination?

The very concept that a worker can be employed and given the appropriate safety clothing—they are only given safety clothing to protect them against safety issues—and then suddenly have their pay packet reduced to pay for it. The concept that the Hon. Mr Hood has brought up, that they will get it and go home and put it on the internet, there is really no evidence for that. There is just no evidence of that. We should not be supporting amendments based on things that do not really have basis in fact. I urge members to support this clause.

The Hon. G.A. KANDELAARS: I would not normally speak on a matter like this, but I bring the attention of the chamber to instances I have become aware of as a union official, where employers have unreasonably sought to charge their employees for lost property. I remember a case in Telstra, at point, where an employee was threatened with discipline because someone stole a computer out of the back of his car.

In terms of Mr Hood's assertion, if an employee goes and puts an article of safety clothing on the net to sell, that is an illegal act. He deserves to be dismissed. I do not defend actions like that; it is not an action that should be defended. However, to suggest that an employer be given a right to charge an employee for safety equipment is offensive, and I can tell honourable members that I have seen employers use such techniques against employees. So I strongly support this clause.

The Hon. D.G.E. HOOD: I was not at all suggesting that some employers do not do the wrong thing: they do. The Hon. Mr Kandelaars is quite right about that, I accept that. He is 100 per cent correct. But that was not my point. My point was that the clear reading of this clause is that it is open to abuse. Now, is it an extremely unlikely scenario that I have painted? Absolutely; I accept that and I said it in my remarks, but it is possible.

The question is: should we be making laws that are open to abuse? The answer to that, I think all of us would agree, is no. That is the issue. I think the numbers in the house are what they are, and we will move on. So be it. However, we have created a scenario that could potentially be abused, and I do not think that is good to legislate.

The Hon. T.A. FRANKS: I certainly thank the Hon. Gerry Kandelaars for his contribution. It reminds me of a friend of mine who worked at BP, who was fined every time someone stole petrol unless he actually managed to get the details of the person who stole the petrol. He would have his pay docked for that week. He does not work there anymore, but I understand it is a common practice and something that workers face which I think is quite unacceptable, that they are docked for someone else's crime.

We are not looking at this clause in isolation. As the minister has noted, this clause must be read with the other parts of the bill, and there are provisions there for workers to be required to act not only legally but also responsibly and to take a proper duty of care. But we are also looking at situations where, yes, people may have items stolen and need them replaced. It is not as if the mover of this amendment has not noted himself that there is no remedy here.

There is a remedy where this worker in this case, if they do abuse this clause could be looking at losing their job, and I think that is a pretty big penalty for that worker to be facing. While the call has been that that is too big a penalty to apply, a suitable amendment has not been put forward that addresses the nuances of this issue. For that reason, we will not be supporting the Hon. Mr Lucas.

The Hon. R.I. LUCAS: Whilst I am interested in the contribution of the Hon. Mr Kandelaars, in relation to the computer, and the Hon. Ms Franks, in relation to petrol, I am not convinced that they are actually examples of safety equipment and therefore the subject of this provision.

The only other point I would make in response to the contribution from the Hon. Bernard Finnigan is that exactly the point he made that he was familiar with examples of employees contributing towards the cost of high-level qualifications in work health and safety, such as diplomas, etc., and he did not understand that would be prevented by this clause. The legal advice provided to the MBA is exactly that; that is, the arrangements they had entered into with higher-level qualifications, WHS qualifications, such as diplomas and—

The Hon. B.V. Finnigan: Certificates.

The Hon. R.I. LUCAS: I think it might have been certificates; I just cannot find it—certificates and diplomas. That is one of the reasons they are asking that this be considered. They are saying that they are common arrangements which have been entered into, and they would be prevented under this provision.

The committee divided on the clause:

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

Majority of 1 for the ayes.

Clause thus passed.

The CHAIR: We will now be dealing with amendment No. 10 in the name of the Hon. Ms Franks to insert new clause 273A.

The Hon. T.A. FRANKS: I do believe this is my amendment with regard to workplace bullying, and I withdraw that amendment.

Clause 274.

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

Page 115, line 33—After 'if' insert:

the Minister is acting on the recommendation of the Advisory Council and

This is the first of two very significant amendments as they relate to codes of practice, and this is one of the very important issues that has caused much consternation and opposition from employer organisations and industrial organisations as well.

As outlined in the second reading, we have this comprehensive bill. We then have 500 or 600 pages of regulations but beneath that are 40 or more codes of practice which are very significant in terms of their potential impact on the operations of businesses nationally but, in our case, obviously here in South Australia.

The construction industry has been appalled at some of the examples of provisions within the codes of practice in particular. As I said, we are talking about more than 40 of them. Some of them, we understand, are more than 90 pages long. Not all of them have been finalised. There was some debate earlier about some of them which were still going through consultation stages; some are still being developed in relation to the impact.

Parliaments nationally have signed off much earlier on the legislation and the regulations and, in essence, have bought, sight unseen, these hundreds of pages of provisions in the codes of practice. Those earlier jurisdictions, in signing off on the legislation and the regulations, basically said, 'Well, deliver whatever you want under the codes of practice. We're not going to have any influence at all in relation to what you put in the codes of practice.'

That is not a position that we are in, obviously, because we are debating the bill much later than many other jurisdictions, but Victoria and Western Australia are yet to debate even the legislation. The issue in relation to the codes of practice is that they will have a significant impact: what input should the parliaments have in relation to these issues? The legislation does provide the first port of call in terms of providing some legislative oversight, some framework, within which these codes of practice can be developed.

The simple fact of the matter is that ministers have abrogated their responsibility over a number of years. Minister Wortley, and ministers prior to him who have held the portfolio, effectively have delegated to the equivalents of SafeWork SA nationally to go their hardest in terms of drafting codes of practice. With the greatest of respect to the hardworking bureaucrats in SafeWork SA, and their equivalents in other jurisdictions and nationally, that is not a healthy state to be in, where you leave to officers the final decisions or, to rephrase it, the guiding influence in terms of the final decisions of what is to be included.

The brutal reality is—and let us take the Hon. Mr Wortley—he will not apply much rigorous oversight, given his performance in this portfolio and others, in terms of the detail, whether it be legislation or regulations and certainly not codes of practice. He certainly will not be going through the codes of practice as a minister, looking at whether or not they contain unreasonable provisions.

We know, for example, that he even refused to read the Burnside council report because he was fearful of leaking it or inadvertently outlining the details publicly. So, the minister will not be providing the legislative oversight that is required. Whilst he, together with other ministers, will formally sign off on this detail, all the engine-room work is being driven by officers with whatever consultation processes they might have entered into.

There has been significant opposition in South Australia to much of the detail of these codes of practice, but the minister outlined earlier that, having heard all that criticism, the government will not amend or change in any way these codes of practice as they apply to business and to industry. What we are seeking to move (and time will not permit me to outline all the arguments for both aspects before the luncheon break) are protections for business and industry in relation to the codes of practice.

The first thing we are saying is that the minister should act on the recommendations of the advisory council. That is a body which comprises employers and employee representatives. We accept that a minister can stack that body, but that is the reality. The advisory council has operated in that way more often than not. That has not occurred, but certainly the structure allows a minister, if he or she so chooses over a period of time, to stack the particular body. At least it is some level of protection in relation to trying to get agreement from the employer and employee representatives on a particular code of practice. That is the first element of the package of amendments we are proposing to move.

The second element, which I will outline in greater detail after the luncheon break, relates to a regulatory role for the parliament; that is, the parliament has the say in relation to the legislation, whether or not we like it. The parliament has an opportunity in relation to regulations; that is, we have the capacity to disallow regulations if we so choose, and we are proposing a certain role in relation to codes of practice, which I will outline in greater detail after the luncheon break.

Progress reported; committee to sit again.


[Sitting suspended from 13:00 to 14:15]


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