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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-02 Daily Xml
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WORK HEALTH AND SAFETY (SELF-INCRIMINATION) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:31): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Work Health and Safety (Self-Incrimination) Amendment Bill 2013 will amend section 172 of the Work Health and Safety Act 2012. Operation of the Act commenced on 1 January 2013.

This amendment is a minor technical amendment which provides certainty in relation to a provision that currently is arguably open to an unintended interpretation.

During the debate on the Work Health and Safety Bill 2012 in the Legislative Council, an amendment to clause 172 was successfully moved by the Honourable Rob Lucas MLC. Clause 172 originally removed an individual's (natural person's) privilege against self-incrimination (the right to silence). The intention of the amendment in the Legislative Council was to reinsert this privilege.

This was made clear in the Parliamentary and other debates surrounding the Bill.

It appears that the amended section 172 could be interpreted as providing a privilege against self-incrimination to corporations as well as individuals (natural persons). Corporations, at common law, do not enjoy the protection against self-incrimination.

If corporations were to be granted the privilege against self-incrimination, it would seriously compromise future investigations into workplace fatalities and serious incidents.

The intention of this amendment is to provide certainty that section 172 provides the privilege against self-incrimination to individuals (natural persons) only. The Bill achieves this objective by replacing the word 'person' where is appears in section 172 with the word 'individual'. The reason for the use of 'individual' rather than 'natural person' is because it is 'individual' that is used throughout the Act to distinguish between a body corporate and a natural person, not the term 'natural person'. The term 'individual' is clearly an d unambiguously used throughout the Act to refer to natural persons, most notably in the various penalty provisions.

I commend the bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Work Health and Safety Act 2012

3—Amendment of section 172—Protection against self-incrimination

Section 172 of the Work Health and Safety Act 2012 provides that a person is excused from answering a question or providing information or a document under Part 9 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. The amendments made by this clause make it clear that the protection against self-incrimination afforded by section 172 applies only to natural persons (referred to in the principal Act as 'individuals').

Debate adjourned on motion of Hon. S.G. Wade.

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