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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-06-04 Daily Xml
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WORK HEALTH AND SAFETY (SELF-INCRIMINATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 2 May 2013.)

The Hon. R.I. LUCAS (16:33): I rise unexpectedly to speak to the second reading, having made the mistake of following the government's priorities as outlined on the schedule given to us today.

An honourable member interjecting:

The Hon. R.I. LUCAS: Exactly. You would think I would not take much notice of the schedule. Given that no-one else is listed to speak, I may well seek leave to conclude my remarks tomorrow.

I rise to put on the record the Liberal Party's position in relation to the work health and safety bill. Thankfully, given the lengthy and extended debate on the main bill during last year, this is a relatively short, relatively specific piece of legislation, which seeks to make a specific change to the self-incrimination provision, section 172 of the new act.

What I would say at the outset is that whilst the government said that it had consulted widely on the original bill, this is further indication of the warning that I issued at the time, that there would be over the coming years—and I must admit I did not expect it to be within the space of six weeks—a number of issues and problems with the government's drafting of the legislation. I remind members of that warning I gave, and I suspect it will be a number of years down the track in relation to some of the provisions as various courts and tribunals are required to present or to make judgements about what the legislation intended and what it actually achieves. I suspect that future governments will be forced as a result of some of those judgements to seek to clarify a number of the aspects of the legislation.

With that comment, I note again that, as we are now halfway through 2013, there is very little progress on the national scene in terms of achieving what this government said it was achieving with this bill, that is, supposedly achieving harmonised legislation throughout Australia. Contrary to the claims made by the then minister in the government, it is now well and truly after the Western Australian state election and they have showed no signs of introducing the harmonised legislation. The Victorian government is getting ever closer to another election and is still showing no sign of introducing the harmonised legislative package and, of course, the government in South Australia has actually amended its own legislation, even though it had indicated originally that it could not make amendments to the legislation because it was going to introduce the harmonised package that had been agreed to at the national level.

This particular issue is the result of an amendment which was going to have three parents—I think the Hon. Mr Darley, minister Wortley and myself. There were three amendments drafted on exactly the same legal advice provided by parliamentary counsel—exactly the same form of words—so, in the early stages of this debate, it was a bit cute for the government to indicate that this was an amendment moved by the Liberal Party. That is technically correct but the minister and the Hon. Mr Darley had exactly the same legislative amendment as well and, eventually, this particular amendment was agreed to, I think, by all members in this particular chamber.

I think what the member for Davenport has outlined must be of concern to all members of this chamber as we look at our review process. The member for Davenport revealed that when former minister Wortley and the government moved their amendment, they did not seek crown law advice on the amendment. To me, it just seems extraordinary, on an issue as critical as this, that a minister would move an amendment and not seek crown law advice at all. I am not sure how that process actually occurs. Under the processes and procedures of the former government, any amendment to a bill would actually have to go through a cabinet process and, through that cabinet process, one would imagine there is a requirement for crown law to have been consulted. Certainly, that would have been the case and crown law would have given its view, either directly or generally through its minister, in relation to a particular amendment.

So, I am interested to know from the minister in this chamber, because there did not appear to be any response to that in the House of Assembly, what the government's response to that particular point is, that is, is it correct that crown law advice was not sought? If that is the case, how on earth can that happen with the cabinet processes of this particular government? I would certainly hope that is not the case; I would certainly hope that all amendments to government legislation, particularly one that will be moved by the government minister himself, would have received crown law advice prior to it being moved.

I guess that begs the question: what advice, if any, did the minister and the government seek in relation to the amendment they were going to move? Within a space of five or six weeks SafeWork SA, supposedly, says that the impact of this particular amendment will possibly be cataclysmic for the potential implementation of safety breaches; so it is not as if we have waited a long period of time. It might potentially be an issue that the Hon. Mr Darley and I, in another forum, in a parliamentary committee, might be able to explore with SafeWork SA, when looking at its effectiveness and efficiency as an organisation.

What advice was it providing to the minister and the government in relation to the amendment? If it took it only five weeks after the operational date of the legislation this year to raise all these problems, why was not it, as an agency, raising these issues in the process of negotiation? Alternatively, will SafeWork SA say to us, 'Well, we did advise the minister that there were problems but he chose to ignore that advice,' and that he proceeded irrespective of the advice that SafeWork SA gave? Either way, the government and the former minister are not painted in a very good light, if that is the way they actually manage the legislative and governance process.

There are some strongly held views in the legal community about both the original provisions in section 172, the initial drafted amendment from the government, and now finally this drafted amendment by the government. Whilst the Law Society has put a particular point of view and the government now has its legal view, I have to say that a highly respected lawyer with considerable experience in the industrial jurisdiction, who was one of the key stakeholders at that time, advising a number of significant industry groups in South Australia, strongly disagrees with the legal interpretation of the Law Society and the government on the drafting amendment.

This particular experienced lawyer, in emails to me and to the member for Davenport, has indicated that their opinion is supported by senior counsel. The senior counsel is named in the email to me, but I will not place their name on the record because, to be frank, I have not seen the senior counsel's advice. However, I have enough respect for this lawyer to accept that if the lawyer indicates that that is the senior counsel's view then I am prepared to accept that that particular senior counsel shares the view of this lawyer, experienced in this jurisdiction.

However, for every lawyer on one side of the argument I am sure there is a lawyer on the other side of the argument. The government will be able to point to the view of the Law Society, in part—and I will highlight another aspect of their opinion in a moment—and I guess the government will now be able to say that crown law's advice in relation to this is that this resolves the issue to the satisfaction of the government, some of the industry groups and SafeWork SA in relation to the appropriate operation of section 172.

As the member for Davenport indicated in the House of Assembly, we are left in a difficult position. He did indicate in the end, given the strongly divergent views of the legal fraternity and the strongly divergent views of the industrial associations and industry groups on this particular issue, that the Liberal Party will not oppose the legislative amendment. In essence, we have said to the government, 'Well, this is your latest attempt at getting this right. Let's see how it operates.'

If elected in March 2014, I know we would certainly want to look at what has transpired between now and March 2014 in relation to interpretation of this new provision if it is enacted and, indeed I am sure, many of the other provisions of this legislation which, as we have warned, we believe will cause significant problems in terms of industry operation in South Australia.

In relation to the Law Society's advice, which I understand the government and some others are placing great weight on, I noted in his contribution that the member for Davenport in the House of Assembly quoted at length from the Law Society's position. Let me quote also that view from the Law Society in their letter:

4. The Bill initially proposed to delete the word 'A person' and replace it with 'A natural person' so as to limit the privilege against self-incrimination to natural persons only. Following consultation, the Government proposes to amend s172 as follows:

'An individual 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 a document, may tend to incriminate that individual or expose that individual to a penalty.'

5. The Society understands that the revised wording is favoured by local businesses and employer organisations in preference to the initial proposed wording, however it is not immediately apparent why.

6. In our view the phrase 'natural person' is clear and unambiguous. The same we suggest, cannot be said of the term 'individual'.

7. There is a risk that 'individual' may be interpreted by some to mean all legal entities, including body corporates. In saying this, we acknowledge that the term 'individual' in Commonwealth legislation means a natural person: s2B Acts Interpretations Act 1901 (Cth). However, it is worth noting that 'individual' is there defined to mean 'natural person'. There is no clearer statement of the definitive nature of the phrase 'natural person' than for it to be used to define another term.

8. Our concern is that the term 'individual' may lead to body corporates asserting that they are covered by s172 on the basis that the term encompasses body corporates. In our view, there is no room for such interpretation if 'natural person' is used.

9. Accordingly the Society submits that the proposed amendment to s172 of the Act tabled in the House of Assembly on 6 February 2013 is preferred because it is clear and unambiguous.

It is interesting to look at the Attorney-General's view on it. He indicated that his personal view was, in essence, that he agreed with the Law Society that the term 'natural person' should be used rather than 'individual', but he then went on to explain that the government position, as a result of the other legal views and the lobbying or the views expressed by industry groups, was that they would accept the term 'individual'.

I am assuming—and I ask the question of the minister—that SafeWork SA has ultimately provided advice that they believe that they are prepared to accept the term 'individual' in the current drafting of the bill that we have before us. It would be extraordinary if they did not. The Law Society's position then, as I said, casts doubt on the current bill that we have before us. In essence, what the Law Society is saying is that, 'In our considered view, the problem that you claim you are seeking to correct isn't going to be corrected or might not be corrected by the bill that you have before the house.'

Certainly I am not a lawyer; I am certainly not an industrial lawyer. Ultimately it will be an issue for the courts and/or tribunals to adjudicate on this particular issue: whether the Law Society view is correct, whether the government and crown law advice is correct, whether the Attorney-General's view is correct or whether the industrial lawyer that has been providing advice to us over the duration of this bill is correct, or some version of any of those particular groups.

As the member for Davenport outlined, it really does leave the Liberal Party in a difficult position. We fought the battle in relation to the total bill and lost that battle. This is, in essence, one small but specific problem area in the bill. We have fought and lost the battle on the total legislation, which we still think will do great harm to the state's economy and the industrial relations environment. However, as I said, that battle has been lost, at least for the moment.

The issue now remains in relation to this particular provision (section 172) and, as the member for Davenport outlined in the House of Assembly, our inclination is to say, 'The government says that this is going to fix the problem. We'll at least'—to use a colloquial expression—'suck it and see.' We will sit back and observe and see whether or not the government's view is correct or, as I said, whether or not any of the number of other legal views on this particular provision are correct.

I indicate that there is one other specific area that, given the early onset of this debate this afternoon, I had not quite concluded my thinking on. I would seek to make some comments on that specific issue at a later stage—I assume sometime tomorrow or Thursday—so I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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