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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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WORK HEALTH AND SAFETY BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. R.I. LUCAS (16:21): I am sure members will recall that I was speaking prior to the lunch break and now, refreshed and invigorated, I can continue. Just prior to the break I quoted the figures from the HIA and Rider Levett Bucknall. I was addressing the issue of the impact on affordability and I pointed out that Rider Levett Bucknall had been used by this government to do the Adelaide Oval costings, etc. and they had come up with these costings, together with the HIA, with the impact on affordability from somewhere between $20,000 and $30,000 for single-storey to double-storey dwellings.

At the same time the government has basically been attacking the HIA and the consultants that it has used on a number of occasions, in essence saying that what they have claimed is garbage and that it is part of a scare campaign. Here are just a couple of examples of what the minister, Mr Wortley, has said on radio. On 27 September last year he said:

The reality is they are saying on your program the cost is $22,000 or so for the building of a house. What we're saying is it's insignificant.

They are making a lot of statements on radio and publicly which, to me, do not carry any weight at all. So, the minister is there saying 'insignificant'. Then in The Advertiser a bit later, on 1 October, minister Wortley is quoted as saying:

Let's look at the ramifications for those businesses which are operating within our borders. If you are complying with the current act and regulations then by and large you will be under the new system as well and compliance costs will be minimal.

So it is marginally above insignificant but nevertheless it is down at the bottom end of the continuum. Further to that (still on the SafeWork SA website, I am told, as of today) is a questions and answers guide. The question is simply, 'Will it cost more to build houses under this new legislation?' The answer from the government and SafeWork SA is no; full-stop.

I accept that when consultants are employed in relation to the national regulatory impact statement and others it does depend, to a large degree, on the assumptions that they make. I accept that, but I do not know anybody who believes the government's position in relation to this—and SafeWork SA's and others—that there will not be one extra dollar in extra costs as a result of the bill: 500 pages of regulations and thousands of pages of codes of practice.

The Hon. Mr Wortley, the government and the advocates want us to believe what SafeWork SA has put on its website on behalf of the minister: 'Will it cost more to build houses under this new legislation? No.' Not that it is minimal or it is insignificant or it is only a small amount or it is worth it for the benefit for worker safety—none of that. It is just no; it will not cost a dollar or dollars more in relation to the new package. As I said, I do not know of anyone who believes that. I certainly do not believe it and the challenge for the minister when he replies in this chamber is to back up that extraordinary claim that he is making.

There can be argument as to whether or not the increase will be $20,000 or $30,000, or some significant number in between; I accept that. It depends on the assumptions that the consultant has made, particularly in relation, for example, to the degree of fencing that is going to be required or the work safety statements that might have to be undertaken. You can certainly read the regulations and the codes of practice and others to require those in virtually every circumstance, and that is what would have been, I am sure, included in the costings.

There is no doubt that there is going to be significantly more paperwork and more requirements, and therefore significantly more costs in relation to the implementation of this package. For the minister in a bold-faced way, together with his advocates, to say, 'It ain't gonna cost a dollar more', does him, the government and those who support the bill no good at all. It does not do them any good at all to be making those particular claims.

I just want to look at one particular area, although there is a second area I could look at, which is fencing. As an example of the changed requirements, scaffolding is one of the issues that has been debated on talkback radio and elsewhere. The Hon. Mr Darley put some very good questions to the minister on FIVEaa one morning in relation to requirements on scaffolding. I am not aware that the minister has answered those questions and certainly would be interested to see the answers to the questions.

They were simple questions such as: will the tradespeople who work on insulation in your roof, put solar panels on your roof—this is a normal standard suburban house, we are not talking about major buildings or anything—put a satellite dish on top of your roof, clean out your gutters, or do retiling on your roof be required to have the additional costs of scaffolding in terms of the work that they undertake?

I am not aware of the minister's answer to that. I think this chamber deserves an answer in relation to that, because certainly tradespeople are already saying that, if that is required for those sorts of standard tasks that many of us have implemented in our homes, the additional cost can be $5,000 or $6,000 for each particular job that might have to be done. For example, painting would be another one—potentially up to an extra $5,000 or $6,000 just for the scaffolding that is involved in some of those cases.

In relation to the scaffolding issue, I have sought advice on this from the HIA, the MBA and others. This is the advice that I have been provided with and I put this on the public record. The minister is wrong where he is claiming there has been no change in scaffolding requirements under these new laws. The minister's line is that the scaffolding requirements under the new laws are no different to the existing ones.

It is certainly my advice that that claim from the minister is wrong. I think that is in part why the minister claims there is no cost increase, because he is saying these are already existing scaffolding requirements being undertaken by tradespeople and businesses already. On FIVEaa on Monday 26 September Mr Wortley said:

'Look, currently existing legislation provides that people working at heights of greater than two metres must put controls in place to mitigate the chance of a worker falling from such a height...this requirement will not change under the new legislation nor will it impose greater requirements that don't already exist.

The Housing Industry Association has advised me that what the minister has said is incorrect; that is, this bill will not enforce greater requirements than already exist. The HIA has advised me that the new two-metre height limit for installing scaffolding is much more prescriptive than present guidelines and the proposed regulations require a risk assessment to be conducted for working at any height. There is no cut-off of two metres but before you work at any height—one metre, two metres, three metres, or above—you have to do a risk assessment and fill out a form.

What I have been advised is that, whilst there is no specified height limit in the existing regulations, the current industry practice is that scaffolding is only installed for work above three metres. Given that this three-metre limit is the usual industry practice, it is clear that SafeWork SA has accepted this practice as consistent with the existing regulations. In fact, the HIA has advised me that it is not aware of any prosecutions that have occurred in South Australia for people working at heights of less than three metres on a standard building project.

The evidence from the HIA and other industry groups clearly demonstrates that it is impossible for cost increases to be insignificant or minimal, as Mr Wortley claims. This is true in a number of other areas as well. So the essential evidence from the HIA—and it is for the minister to respond—is that when the minister said and continues to say publicly that current existing legislation providing that people working at heights greater than two metres must put controls in place to mitigate the chances of a worker falling from such a height will not change, that is not correct.

The HIA is saying that is not correct. It is saying that the current industry practice, in essence sanctioned or approved by SafeWork SA because they work with the MBA and the HIA, is that scaffolding is generally used in the industry at levels of three metres and above. If you are going to implement this at two metres and if, at any height, you have to do an assessment—a risk assessment has to be conducted at any height—then clearly they are additional costs for a lot of standard tasks that are undertaken on each and every one of our homes at any particular time of the year.

That must be an additional cost. A tradesperson who has to install additional scaffolding and do additional risk assessments does that at a cost, and the tradesperson cannot absorb that cost himself or herself; it has to be met by the client, who is the home-owner. So costs will have to increase in relation to many of those areas. I have only highlighted the issue of scaffolding. You can look at dozens of other areas, but I have enough to cover in this contribution without going through all those.

I highlight scaffolding as proof positive, from the industry viewpoint and others, that it is just impossible to believe the minister's claim that none of these are additional imposts or new requirements, that they all exist at the moment and there is no cost increase at all as a result of this particular package. That is the government's position, and if it wants this bill to be passed by this chamber it will need to somehow sustain that argument and provide evidence to the chamber that it is indeed the case.

I certainly do not believe it, the industry certainly does not believe it, and I suspect the government would be hard pressed to find anyone who would support that particular contention, other than their own bureaucrats within SafeWork SA. Obviously there are significant changes in this bill. Two of the more controversial ones, which have occupied the minds of lawyers—at great expense to everyone, I suspect—I want to address in relation to legal opinions, because they are important.

One is that this new bill introduces the completely new concept in work safety legislation of a PCBU, a person controlling a business or undertaking. Under our current legislation there is no such concept as a PCBU, thankfully. We talk about businesses and we talk about employers and we talk about employees, but for some reason the bureaucrats and the ministers have agreed to introduce this completely new concept, which is currently untested in the law, as to what is a person conducting a business or an undertaking.

Clearly it is now to cover a variety of organisations and others that are not traditionally considered as businesses. For example, it covers anyone who is engaging in any undertaking, and an undertaking can be anything. Volunteer associations are an undertaking, a football club is an undertaking. If you can think of anything that is, in essence, a task or an activity then it is highly probable that it will come within the definition of an undertaking and potentially under the purview of this legislation.

That is one of the more significant changes that has been implemented in the legislation. I want to refer to one of the pieces of legal advice, dated 22 December 2011, from prominent QC Dick Whitington, who was employed by lawyers working for the Housing Industry Association. Mr Whitington's legal opinion makes this point quite explicit. He says:

The 2011 Bill indisputably alters radically the nature and scope of industrial health and safety duties applying to employers and others in South Australia...The 2011 bill contains no comprehensive definition of a 'person conducting a business or undertaking'. Instead, there is a provision in s 5 which merely operates to confirm certain aspects of the reach of the provision without actually explaining what is meant by the expression and, in particular, without explaining what is meant by 'conducting', 'business' or 'undertaking'.

The expression 'business' is one with a reasonably well-established meaning in law. The expression 'undertaking' is not so clear. The relevant meaning given in the Macquarie Dictionary is of a 'task' or 'enterprise'. Plainly, the expression is wide enough to cover such things as home renovations and possibly even a single task of work in a residence (eg, changing a light bulb) (and this appears to be confirmed by the terms of s 20). In this context, the word 'conducting' may not be a limiting expression.

I repeat that Dick Whitington QC is saying that this definition of 'undertaking' could include something as wide as home renovations or a single task, such as changing a light bulb in your home. This could come within the definition of 'person conducting a business or an undertaking' and potentially come within the purview of duties in terms of worker safety and health and safety of others in the workplace. I will continue with Dick Whitington's opinion:

Hence, the basal criterion or pre-condition of liability informing the primary duty of care is no longer a relationship of employer and employee and instead is one of general (circumstantial) proximity between a person carrying on some business or undertaking and a person exposed to risks to health or safety ultimately as a result of that business or undertaking. Further, there is no requirement that the PCBU shall actually have created the relevant risk which resulted in injury or possible injury nor that they have any control over the risk.

I repeat that what Whitington is saying is that you have this indeterminate PCBU and that there is no requirement that the PCBU shall actually have created the risk or have any actual control over the risk. You could still potentially be held responsible. Dick Whitington goes on:

In practice, in many cases the duty will be derivative in the sense that the PCBU will not be responsible for controlling the relevant risk to health and safety although they will have engaged the person who has created the risk in connection with the PCBU's business or undertaking.

That is the first of the two significant legal points from Whitington I wanted to put on the public record, and that is the indeterminate nature of what is a PCBU and the requirements that spring from that. I now want to turn to the second one, which has been even more controversial, which is the notion of control. This has applied considerable amounts of my time and lawyers' time in terms of seeking to come to a resolution on this particular issue.

I want to place on the record, firstly, Dick Whitington's advice on this particular issue. There are two pieces of advice from Dick Whitington. There is one dated 18 October 2011. He refers to section 4(2) of the existing act, which is the control provision within the existing legislation. The essential argument in relation to this, in layperson's terms—as I am not a lawyer either—is that under the existing act there is a notion of control. If you control something you can be prosecuted for it.

The main argument is that, under the new bill, that control element or test has disappeared completely. That is, there might be events that you do not control and you still might be prosecuted and held responsible for that. So, in non-legal terms—and as most of us are non-lawyers—that is essentially the argument. This is now the legal argument from Dick Whitington to back that up. Dick Whitington argues that section 4(2) of the current act, which is the control test in the current act:

...is not merely a definitional provision expanding the scope of the class of employees to include independent contractors engaged by an employer/principal and their employees or sub-contractors, it is also a substantive provision restricting the duty which is consequentially attracted to the employer/principal in respect of such deemed employees so that it covers only 'matters over which the principal has control or would have control but for some agreement to the contrary etc.'

Further on in that opinion, he says:

However, the restrictive duty criterion of 'control over matters' has been held to require actual control, referring to things which the deemed employer is managing or organising...

He quotes a case, Complete Scaffolding Services Pty Ltd v. Adelaide Brighton Cement Ltd [2001] SASC 199 [56]:

The Western Australian counterpart to section 19 of the [Occupational Health, Safety and Welfare] Act is s. 19 of the Occupational Safety and Health Act 1984. Section 19(4) contains a counterpart to s. 4(2) of the [Occupational Health, Safety and Welfare] Act and provides that where a principal engages another person (called the 'contractor') to carry out work for the principal, 'the principal is deemed, in relation to matters over which he has control...to be the employer of the contractor...and any person employed or engaged by the contractor to carry out or to assist in carrying out the work' and those persons other than the principal are deemed in relation to such matters to be employees of the principal. The Western Australian Court of Appeal has held that s. 19(4) requires actual control (including the right of actual control, whether exercised or not) over the particular matter affecting safety. It has been held that the section is not intended to impose upon a principal who has engaged a specialist contractor a general obligation to supervise the manner in which the contractor goes about the performance of the work entrusted to it. The Court of Appeal has held:

'A construction that imposed such a far-reaching obligation on a principal would produce unworkable consequences. There is no real scope for a principal (lacking the requisite expertise) to exercise actual control over the detailed manner of performance of work by a specialist subcontractor. If it endeavoured to do so, this would be more likely to lead to hazards than to avoid them.

As to the suggestion that the principal should be required in such a case to engage an expert to oversee the method of work adopted by the expert subcontractor, the Western Australian Court of Appeal observed:

'That solution seems to us to be unworkable. A builder, (for example) would have to 'double up', at significant cost, on contractors having special expertise. Work performed by a plumber or an electrician would have to be overseen by another plumber or electrician (whose manner of supervision of the work of the first plumber or electrician would, on this construction, also be subject to the control of the builder).

Again in nonlegal terms, what Dick Whitington is saying in that, based on both the South Australian law and the Western Australian law and on a Western Australian Court of Appeal case, is, essentially, if you are an employer or a business and you have employed a specialist contractor like an electrician who you are relying on to undertake the particular work, the suggestion is that, okay; you have a responsibility. Even though you are not the specialist and you might not know anything about electrical matters, you are the one who is in control of that and, if you have got any doubt about knowledge of electrical matters, you should actually employ another specialist electrician to oversight the work of the electrician to satisfy yourself that you have managed the risk appropriately.

The Western Australian Court of Appeal, according to Dick Whitington, is saying that is just nonsense. It would increase costs considerably and it still would not satisfactorily resolve the situation anyway. That, in nonlegal terms, is what Dick Whitington is saying to us in relation to this notion. You are employing experts—electricians and others—with expertise in the particular areas. As a general employer or businessman or as a principal of that particular business, you are relying on the expertise of that specialist electrician out on that work site to manage the risk—and work within a general program, of course—as it relates to matters of the work of the electrician.

Under the existing legislation, you are not expected to employ another specialist electrician to provide you with oversight of the work that that electrician is doing on that particular worksite. That is the advice from Dick Whitington on 18 October. He follows that up with his advice of 22 December, and I place that on the record as well. He says:

I advised in my advice of 19 October 2011 that the 2011 bill did not contain a provision such as s4(2) of the Occupational Health, Safety and Welfare Act..which not only deemed a principal the employer of a contractor or subcontractor and their employees but also confined the duty of the principal to matters over which the principal had control or would have control but for some agreement to the contrary between the principal and the contractor. I noted that the concept of 'control' in this provision had been held to require actual control over the matters giving rise to the relevant risk to health and safety, and that it was consistent with accepted commercial and industrial practice to acknowledge that there was no real scope for a principal to exercise actual control over the manner of performance of work by a specialised contractor. In other words, the cases in this area have effectively drawn a distinction between control over what is to be done and control over how it is done. It is the latter which has customarily been regarded as the proper basis for liability for the existence of a risk to health and safety.

This approach is also consistent with that adopted in the seminal 1972 report of Lord Robens into Safety and Health at Work. I also advised in my advice of 19 October 2011 that the duties enacted by the 2011 bill might be realigned with that basal principal by an overriding provision generally to the effect that a person who does not have actual control of a particular safety risk does not have a responsibility for eliminating or reducing that risk so far as reasonably practicable.

His legal advice goes on for pages and pages, but they are the essential elements of the advice on that critical issue of control. In essence, what he saying is that there is a provision in the existing bill—section 4(2)—which is an issue in relation to control; that is, you are responsible for and prosecuted for issues over which you have control. This bill does not have that. The way to actually sort out one of the issues in this bill is to provide for a control provision.

He says that this control provision, which exists in our current act and in the Western Australian act but which is not in the bill, is consistent with what he says is the seminal work on occupational health and safety going back to 1972, and it has governed occupational health and safety legislation in this country since that time (for nearly 40 years) in virtually all of our jurisdictions. That is, that you are responsible for and prosecuted for issues over which you have control. It seems a common sense issue but, for whatever reason, all of these governments, all of these bureaucrats and all of these others have thrown out decades of history in this particular area and they are seeking to impose their own view of the world.

The lawyers, having worked from that advice in relation to the proposed bill, raised a number of scenarios. I only want to put two on the public record, but there are literally dozens that they have produced to highlight the significance and the reach of this legislation now as a result some of these changes. These scenarios are provided by lawyers representing the HIA. The first scenario is:

Mrs Jones owns an investment property that she rents out to a tenant. She does not employ anyone, however, she contracts the maintenance of the house to a maintenance company that specialises in residential tenancies.

What is the impact of these new laws on that particular circumstance, familiar to many of us in this chamber, I am sure? Under the current Occupational Health, Safety and Welfare Act, Mrs Jones, who has this investment property, is not an employer and her investment property is not a workplace. So, she is not an employer and therefore not covered under the provisions of the current legislation. However, under the new laws, Mrs Jones is a PCBU. She is a person conducting a business or an undertaking. The undertaking is owning an investment property. She has a tenant in her property and she has a maintenance company that maintains the property on her behalf.

As Mrs Jones is now a PCBU under clause 5, she will now have a duty to ensure so far as is reasonably practicable the health and safety of that contractor—or any other—who performs work on her rental property, regardless of whether she has any control over how the contractor performs the work or whether she has any expertise in building maintenance. That is under clause 19. She will be required to provide and maintain safe systems of work for the contractor under clause 19(3)(c). If it is reasonably practicable for her to do so, she will be required to supervise the work done by the contractor and ensure that the work that is done does not place other persons at risk (clause 19(2)).

The point is that Mrs Jones will now have duties which are enforceable under the criminal law to which she will now have to turn her mind and decide what she will need to do to comply. She will have to do that in reference not only to the bill but to the regulations and to any of the applicable codes of practice. There is an argument there about what the potential offences are, and I will not go through those. They are clear.

The second example is an example of Dave, who is a self-employed farmer, aged 50. He works alone on his family's wheat farm. He usually does all the labouring work himself; however, sometimes he engages his farmer mate, John, who owns a farming property nearby to help him out with spraying his crops. When he is engaged by Dave, John works unsupervised and uses his own crop-sprayer to do the work. John gives Dave a valid invoice for his time that Dave pays. Dave believes that he is hiring John as an independent contractor. What is the impact of this scenario under the proposed bill?

The legal advice is that under the current laws, Dave is not an employer and John is not Dave's employee. It is an independent contracting arrangement between a farmer and another farmer who is providing crop-spraying activities for him. However, under the new laws, John will be a worker under clause 7 and Dave will be a PCBU under clause 5. It is also possible that John will be a PCBU under clause 5 while he is doing the work for Dave.

Accordingly, as PCBUs, both Dave and John will have a duty to ensure so far as reasonably practicable that John's health and safety is not put at risk while he is working for Dave. Dave will owe a duty to John because he is a worker and arguably John will owe a duty to himself because he is a PCBU and a worker. These obligations apply regardless of whether Dave is supervising or controlling John's work and regardless of the fact that John is not Dave's employee. The advice goes on to highlight the other requirements. There are many other scenarios that have been painted by the lawyers representing the HIA and others, but I think those two highlight the breadth of the application of these laws.

The investment property one is a common example for many; certainly, a self-employed farmer. There are examples here in relation to the wine industry and others like that where, contrary to the claims being made by the minister, there is nothing in this bill which is significantly different to what exists at the moment. If there is an existing obligation under the current act, that will be reflected in the new legislation. That advice, according to all of the legal advice, is just palpable nonsense. It just ain't so in relation to those particular claims. There are dozens of other examples like that, but I do not have the time today to put them on the record.

The next area I want to touch on is the vexed issue of volunteers. Ralph Bonig from the Law Society is not somebody who can be dismissed, as the minister has done, as a vested interest as he has dismissed many other criticisms. He was quoted on 13 February with a wide range of criticisms of the bill. I want to refer to the bit that relates to volunteers. This is Ralph Bonig from the Law Society. He said that one insidious (his word) consequence of this is the bill's effect on those volunteer run organisations that conduct a business or undertaking. For instance, a local community club that exists to provide a range of community sporting activities, but is principally financed by takings from its bar and kitchen, will be bound by the law if it engages a contractor to do the cleaning, carry out maintenance or carry out upgrades such as the installation of new lights.

Not only will the club be caught by the law, but the volunteers who comprise the committee that manage the club may attract individual responsibilities and liabilities. That is not the political opposition of the government; that is not industry groups conducting a scare campaign. That is the President of the Law Society highlighting the concerns in relation to volunteers. What has been the minister's response to these claims that volunteers are going to be impacted in a different way in this legislation? This is his radio grab from 14 February and there are many others similar to it:

Mr WORTLEY: A volunteer cannot be charged for a breach of the occ health and safety act. They can only be charged if they cause injury or death through reckless or negligent behaviour. Now, if they weren't charged under the Work Health and Safety Act, there would be some other act they would be charged under if they caused a death under those circumstances.

That is his claim on 14 February. On I think the same date was an interview with Bevan and Abraham on ABC radio as follows:

Any volunteer that has obligations now, there will be no difference with the new workplace health and safety legislation. If you've got obligations now, you'll have obligations under the new act.

So, there is absolutely no difference, according to the minister, and you can only ever be charged if you have caused injury or death through reckless or negligent behaviour. Again, that is just palpable nonsense. The Law Society President has highlighted that, as has all the other legal advice, and the challenge I put to the minister is to come into this chamber and repeat that statement.

It is quite clear that under sections 28 and 29 of the new bill volunteers within clubs can be charged and prosecuted for offences against clauses 28 and 29 of the legislation, and they make no reference to only being limited to causing death or injury through, in the minister's words, 'reckless or negligent behaviour'. They clearly include that, but they go much broader than that. There are the general duties, responsibilities and risks that volunteers are exposed to. This government and its advocates have sold a pup to the volunteer sector in South Australia.

With the greatest respect (and I make no criticism, because I'm not a lawyer and most of the people in these volunteer groups are not lawyers), they have been told what the minister has just said on the public record. They have all been told, 'Don't listen to the Law Society President, don't listen to Lucas, don't listen to the others who are saying there are changes in this legislation—I'm minister Wortley and I know best, and there will be no change. You can only been prosecuted if you cause death or injury through reckless behaviour', and that is just wrong. It is indefensible.

It cannot be sustained by the minister, yet the minister then runs around and says, 'Well, Volunteering SA agrees with the legislation and the volunteer groups agree with the legislation.' If the minister is saying to us and others, 'There ain't no change at all; it's exactly the same and you will only get prosecuted if you are reckless or indifferent and cause death or injury', then that is a different perspective from the advice that the President of the Law Society and others have highlighted.

Even SafeWork SA and SafeWork Australia's websites have acknowledged that volunteers can be prosecuted. Their websites, in terms of frequently asked questions, are at least acknowledging that in certain circumstances volunteers can be prosecuted. Advice from Scouts New South Wales has already indicated that, if you don't follow directives, policies and procedures, you may be fined, that is, prosecuted and potentially fined under the new arrangements.

What has changed is that under the existing legislation there was a responsible officer who had to be nominated and that responsible officer has been removed under the new bill, and I think that a number of volunteer organisations are pleased in relation to that, because they believe the responsible officer has gone. The dilemma for them is that in many cases all volunteers potentially are liable. I have been through with the lawyers some common examples to put on the record.

I looked at the example of a footy club that employs a coach for four or five hours a week. Everyone else in the footy club, country or suburban, is a volunteer. But they happen to employ a coach or a barperson for four hours a week on a Saturday afternoon at the peak period during the footy game. No-one else is employed; everyone else is a volunteer, giving of their time. The legal advice is that that footy club in those circumstances loses the exemption of being a volunteer association, because the definition of volunteer association is if you are 100 per cent volunteers.

If you employ a coach or a barperson for three hours a week and everyone else is a volunteer, you no longer enjoy the exemption of being a volunteer association. There would be hundreds of our sporting clubs who pay for a coach or occasional ground staff, for example, to help with green keeping on the weekend for a bowling club or something like that, but the bulk of the work is being undertaken by all of the volunteers. In those circumstances, under the current act, if a volunteer breaks a leg at your local footy club, none of the volunteers can be prosecuted. Even if you could mount an argument that if it was a business someone should not have left the hole in the middle of the ground or someone should not have left oil on the floor of the kitchen or whatever, in those circumstances, under the current act, a volunteer cannot be prosecuted. A volunteer member cannot be prosecuted if another volunteer injures himself or herself.

However, the legal advice is that, under the proposed bill, in exactly the same circumstances a volunteer could be prosecuted under sections 28 or 29 of the legislation in those circumstances. The local footy club has employed a coach for three hours a week, another volunteer is injured in the workplace—or the business and undertaking (the PCBU)—and breaks a leg. A volunteer, if she or he could be held liable, can be prosecuted for the broken leg in those particular circumstances—not possible under the existing legislation. That is just one of the many examples in terms of the potential impact on volunteers in South Australia. That is contrary to the assurances that minister Wortley and others have been giving on behalf of the government.

In South Australia, as a result of this debate, there has been growing opposition to the bill. Let me acknowledge at the outset that there are, together with the government, a number of groups who have lobbied the opposition (and others I am sure) wanting complete support for the legislation. SA Unions and Voice of Industrial Death have lobbied strongly. A number of other like-minded organisations, whilst they have not lobbied the opposition directly, I am sure share the views of those groups.

I have to say that of all the business and industry groups in South Australia there has only been one which has lobbied both with direct meetings and also through letters of support for the harmonised bill, and that is the Australian Industry Group (AIG). Its position has been quite clear and quite explicit; it has supported it at the national level. I also acknowledge that at the national level a number of organisations or bodies support the harmonised bill. The AIG group, the Business Council of Australia and a number of other national business and industry organisations have continued to support the bill being implemented without any amendments.

In South Australia we have seen that, as more detail of the implications of the legislation has become apparent, there has been growing concern and growing opposition to the government and its proposed bill. Last year when the bill was being debated in the House of Assembly, our own categorisation of industry lobby groups in South Australia was that the vast bulk of the industry groups were lobbying strongly for significant amendments to the bill.

Even though their national bodies were not supporting amendments at all, the vast majority of industry groups in South Australia were lobbying for significant amendments, and if those amendments were not achieved by the Legislative Council, they were supporting defeat of the bill at the third reading. That was the position of many of those industry groups in South Australia, the vast majority. AIG was supporting the bill but the overwhelming majority of the remaining industry groups was supporting a number of the amendments that needed to be made to bring the bill back closer to the existing legislation.

As we now move to February-March 2012 there has been a further significant move in terms of the feedback from industry and business groups. In the last three weeks we went out for another round of consultation with business and industry groups. We circulated at that stage our latest draft of amendments to the bill, which was more comprehensive than we had floated even in the House of Assembly debates late last year.

What we have now established is that there has been a significant increase in the number of business groups actually wanting this bill defeated at the second reading of the legislation. In that I would categorise groups such as the Housing Industry Association, the Master Builders Association, the Independent Contractors of Australia, the South Australian Farmers Federation, the Urban Development Institute and also the Hardware Association of South Australia which are lobbying for the outright defeat of the legislation.

We then still have a significant group who want more and more significant amendments to the bill and if they are unsuccessful to have the bill defeated at the third reading. This group includes Business SA, the Australian Hotels Association, the Motor Trade Association, the Wine Industry Association, the Self Insurers of South Australia, the Australian Meat Industry Council, the National Electrical and Communications Association, and the Association of Independent Schools of South Australia.

The remaining continuing supporting group for the bill is the Australian Industry Group (AIG). It remains in support. All those other industry and business associations are saying either defeat the bill at the second reading and let's stick with our existing legislation, or move significant amendments to it and if they are unsuccessful defeat the bill at the third reading.

To be fair to those groups supporting amendments, some are only supporting amendments in a smaller number of areas, a number of supporting amendments right across the board in terms of the amendments that we have circulated to business and industry. I believe that the Council of Small Business of Australia is also in that category that I have designated as wanting significant amendments to the bill. As I mentioned earlier, the President of the Law Society has also expressed significant concerns about the bill as well and is clearly supporting amendment in a number of significant areas.

The Liberal Party has moved significant amendments in the House of Assembly and we have been consulting since late last year on a further range of amendments. Given the time today, I only want to refer in particular to two amendments, because they have attracted a lot of contention or publicity, but I will list the areas that our amendments currently cover.

They cover the control test; the right to remain silent; union right of entry; volunteers and volunteer associations; health and safety representatives' power to appoint advisers; codes of practice; the power of parliament to disallow, and the fact that they must be approved by the advisory council; reductions in penalties, back to approximately the existing levels; a redefinition of the workplace; clarification of the delegation of power; a delay in the commencement date to 1 January 2013; and the power to seize property and workplaces.

That is not a complete list, but it is a list of the range of the major amendments that the Liberal Party has been consulting on in recent weeks with those groups that are supporting changes to the legislation. The first of the only two that I wanted to mention in a little detail is the union right of entry, because, unsurprisingly, I am sure the union-dominated Labor government will seek to defend this, and I want to put on the record the Liberal Party's position in relation to that.

The amendments that the Liberal Party will be moving if we get to the committee stage will be to remove the insertion of the union right of entry for occupational health and safety grounds. Our argument is driven largely by the figures that I gave earlier to say the existing legislation in South Australia has driven our performance in South Australia to be the best of all the jurisdictions under the current arrangements. That has been without having unions with an automatic right of entry into the worksites. There is certainly an argument there in relation to these things, if it ain't broken, why fix it? Someone needs to justify what it is that giving automatic union right of entry will do that will assist in relation to these issues.

The point I want to make in this is that our existing laws, and what would continue if the Liberal Party amendments in this area were successful, allow workers to elect their own health and safety representatives. There is nothing that prevents workers in a workplace electing a union representative to represent them if they so wish; there is nothing in the legislation that prevents the workers, when electing their health and safety representatives—who, I am told, have been a very important part of our current law—from electing a union representative to be the health and safety representative if they want.

So the unions can be involved if the workers actually want them to be, by way of electing them to be health and safety representatives. Health and safety representatives have significant powers under the legislation. They can stop workers from working in an unsafe worksite, so they are not figureheads; health and safety representatives have the power to stop workers from having to work in an unsafe worksite if they so choose.

They also have the authority to bring in a properly trained and approved adviser if they wish. That adviser can also be a member of the union if that union member is properly trained in occupational health and safety issues; there are restrictions under the act that provide that if you are going to be an adviser brought in by the health and safety rep you have to have certain qualifications in the area. There is nothing that stops the health and safety representative or a worker on a worksite bringing in a properly trained union adviser if they so wish to assist them in the resolution of a problem at a worksite.

So it is not correct to say that at the moment, under the current law, unions are prevented from being active in the worksite and work safety. If the workers want them they can be elected as the health and safety representative; if the workers want them they can bring them in as their advisers, if they are properly trained.

Why shouldn't the decision be left to the workers as to whether or not they want the union to come in? Why should it be left to a position where the union can say, even if it does not have a member at the site, 'Hey, I've got an interest in this. I am coming into the worksite in relation to a work safety issue,'—even if they do not want to be a member of the union, even if they do not want to union representative to come in, even if they prefer to handle those particular issues themselves. However, the government and the unions want to impose an automatic right of entry for union bosses and unions.

So what are the issues in relation to that? I have heard the minister and others say that there is nothing wrong with that, that there is no evidence to indicate that unions will use this in any way to further causes other than work safety. Well, I refer members to the royal commission report into the building and construction industry conducted by Commissioner Cole. The Cole royal commission report stated:

Occupational health and safety is often misused by unions as an industrial tool. This trivialises safety, and deflects attention away from real problems...scope for misuse of safety must be reduced and if possible eliminated.

In other evidence to the royal commission it was noted that:

...it is not uncommon for a builder or a subcontractor who is in dispute with the union over an unrelated industrial issue to receive visits from union officials investigating and finding alleged safety breaches. The union official asserts that an immediate risk exists, work ceases while employees sit in the sheds or worse, leave the site.

That is the evidence, they are the conclusions of the Cole Royal Commission into the Building and Construction Industry. There is evidence in other states where this power exists that union bosses use this power not for work safety issues but to leverage power in relation to industrial issues, and in particular to enterprise bargaining issues.

In September last year I highlighted that the Master Builders Association reported to me that they already had union officials in South Australia walking onto sites unannounced, stating words to the effect of 'We're just getting you ready for 1 January when we can come in whenever we like.' The MBA cited a recent example in South Australia where a union stopped work on a large project due to purported safety claims. The MBA said that the claim related to a matter which had been independently certified by an engineer as safe and which had also been independently approved by SafeWork SA.

They concluded to me that the number of reports of breaches by union officials of right of entry laws have increased at an alarming rate in the last two months, as they were preparing for what they believed was the inevitable passage of this legislation late last year for commencement on 1 January this year.

The second area that I wanted to raise and highlight in relation to the amendments was the issue of codes of practice. Whilst we agree with some of the industry associations, on this particular area the Liberal Party has not been able to reach agreement with the Housing Industry Association and some others, whose preferred course, if the bill is to be amended, is to remove sections 274 and 275 of the bill completely and remove reference to codes of practice in the legislation.

I put on the public record that we have not agreed with that position from the industry associations. The codes or practice—albeit much fewer in number and not as comprehensive in breadth and length—exist under the current act. There are current provisions in relation to codes of practice, and the Liberal Party has not been prepared to support that particular aspect of the industry view to us, that, if the bill was to pass in an amended form, the codes of practice should be removed from it.

We believe there is an argument under the existing act that there are codes of practice, and for the Liberal Party to support codes of practice was a step too far for us in relation to that issue. What we have foreshadowed are some amendments that would actually reflect the current situation, and that is that a code of practice would have to be, firstly, recommended by the advisory council (which is both employer and employee) to the minister, and that the parliament, as with regulations, would have the power to disallow. If the legislation gets through, there may well be a lot of activity in relation to considering codes of practice.

However, I have given my commitment to the industry that, if that is the circumstance, the Liberal Party is certainly up for it and we will only be prepared to support those codes of practice which can be guaranteed to make sense, to improve or maintain worker safety, but also not to impose significant additional imposts on struggling South Australian families trying to purchase a first home or to undertake maintenance activities on their existing home.

In concluding putting the Liberal Party's position, I indicate that, as will have been evident, the Liberal Party in South Australia has strongly opposed this bill since April of last year. In a political sense, the Liberal Party in South Australia has led the charge nationally against the legislation. We accept that some industry groups, such as the HIA in South Australia and other groups, have led the charge in a business and industry group sense.

We acknowledge that our position in South Australia—which I indicate, and indicated this week—is that we will now be moving to vote against the second reading of the legislation in the Legislative Council. We acknowledge that that position that we are adopting in South Australia is different from the position that our federal coalition colleagues have ultimately adopted and which I outlined earlier in my contribution today.

We also acknowledge that it is different—and a much stronger position in support of small businesses in South Australia and struggling South Australian families—from the position thus far adopted by the Liberal Party in other state jurisdictions at this stage. At this stage there is no other Liberal Party in the state or territory jurisdictions which is either voting against the legislation or committed to voting against it.

I hasten to say that it is possible that, after the Victorian and Western Australian governments look at their regulatory impact statements, they might adopt a position of either significant amendment or opposition to it. However, at this stage they have not yet committed to that particular position.

My contribution, lengthy as it has been today, has outlined many of the problems. However, I am sure members, who have been lobbied by everyone, will know that I have not really touched the surface on literally hundreds of other problems that various groups have raised in relation to the legislation. As in many cases, the devil is in the detail in relation to this supposed harmonisation.

I think it is easy, as I have highlighted over the last two days, to scream that harmonisation is a good thing. The reality we have highlighted today, I hope, is that just screaming harmonisation and saying it is a good thing does not answer the many questions I have put today and I know other members will put when they make their contributions when we return in a couple of weeks.

We have seen in this bill a perfect example of the problems of a federal takeover or national takeovers, harmonisation and the COAG process, when we have weak ministers, such as the Hon. Mr Wortley and the Hon. Mr Finnigan and others, representing our state's interest at ministerial councils, when we have bureaucrats who have been driving the process, literally for years, and no-one being prepared at those national fora to actually stand up and ask the difficult questions.

All they are prepared to do is what we have seen minister Wortley do—parrot the lines he has been given and probably make up a few more he was not given, such as, 'The only volunteers who can be prosecuted are those who have caused death or injury through,' and I forget the phrase, but I have put on the record anyway the quote Mr Wortley used at that particular time.

He has made those claims, which are just unsustainable. Certainly, if we do get to the committee stage, we will be challenging the minister to justify the statements which I have put on the public record and which he has made during this debate on this legislation—the claims he made about scaffolding, which were clearly wrong; the claims on volunteers, which were clearly wrong.

The problem we have with this legislation is that we are seeing an averaging down in the interests of supposed harmonisation. This state, as I indicated, has had a very good record in terms of worker safety. We have led the nation, according to former minister Bernard Finnigan. The figures indicate that, under our existing legislation.

What we have before us is bad legislation which will have a negative impact on families in South Australia. It will have a negative impact on small businesses in South Australia. It will have a negative impact on struggling South Australians seeking to purchase their first home. For those reasons, the Liberal Party now believes the bill should be defeated at the second reading.

The Hon. D.G.E. HOOD (17:22): I rise to make my contribution on behalf of my party, Family First, to this piece of legislation which has been the subject of a great deal of consultation. I am sure, as the Hon. Rob Lucas has just indicated in his contribution, that our party, like other parties and the Independents here, have been consulted and subject to lobbying from all sides. Certainly, in the case of our party—and I am sure it is true in the case of my colleagues here today—we have had an open-door policy to all sides of the argument because we genuinely want to hear from all sides of the debate, which is a very significant one for our state.

The bill has been presented as offering a number of advantages to our state, including the reduction of red tape, which is one of the key selling points which has been used for this piece of legislation. It has also been suggested that it would create harmonisation—that is, the laws across state borders would be harmonised, so to speak—and also that it would create safer workplaces. They are the three key arguments that have been used to justify support of this bill.

I think it is known, and as I have said publicly on radio, television and in the paper, that Family First does not accept those arguments. In fact, we have taken a very close look at this bill over many months, and we have been examining it since about April or March last year, and we have come to the very strong conclusion that we will oppose this bill.

We believe that there are many items of concern in this bill, which I will outline in some detail as I get to the meat of my contribution, but let me say at the outset that I am not convinced and Family First is not convinced that this bill will actually reduce red tape at all. In fact, I think there is a very strong argument that it will actually lead to a substantial increase in red tape.

I have been fortunate to have the time to go through the proposed legislation in a good deal of detail and, in addition to the examples the Hon. Mr Lucas outlined, which show what I perceive as an increase in red tape and the associated burden on business, there are many other examples which could be given and I will give a few shortly.

In terms of the question of harmonisation, I think that argument is also a very weak one. The reality is that this bill has only been adopted in full—unamended—as I understand it, in the state of Queensland and nowhere else. As a result of that, harmonisation of this legislation will not be achieved; it is impossible. That is, of course, one of the strongest arguments, one of the main reasons that we are even considering this legislation today. That is, the issue of harmonisation or creating harmonised legislation across the country will actually lead to freeing up business.

However, the facts are that we have very different legislation around the country, and this bill will not achieve harmonisation because only Queensland has passed it unamended. It has been substantially amended elsewhere and not passed in other states, as I will address in more detail shortly.

Furthermore, we are told that this bill will create safer workplaces. I will again outline why Family First does not accept that at all. I should say finally, before I get to the heart of all of this, that it has also been suggested that this bill really does not make much change at all, that it is essentially the same as the existing act and that the changes are really quite minor. That has also been one of the threads of argument used in order to convince us that this legislation is worthy of adopting. If that is the case, I ask the very obvious question, as I am sure other members in this place will when their time comes: why would we bother? If really we are not seeing much change here, as has been suggested, why would we bother at all? As I say, Family First is not convinced by those arguments and we will not be supporting the bill.

I turn to the substantive note of my contribution. In doing so, I would like to make a point at the outset. I have no doubt that everyone in this chamber, whatever political hat they happen to wear, would want the safest possible workplaces throughout our state, throughout our country and, I guess, taking it to the extreme, throughout the world. That is something that people inherently desire. Nobody wants less safety in anything we do. The question is: how do we achieve that safety? Like everything else, when a particular group or individual, whether it be a government or a body—whatever it is—seeks to make change, the onus is on that group to explain why we should have the change.

In the particular case of attempting to create safer workplaces, I think it is worth taking the time to look at the statistics. Where is the data? Where is the data that says that we have particularly significant problems with work safety in this state? I want to be clear about this. Let us be straight about this: there are accidents in the workplace. Nobody wants that. Whatever political hat you wear, or even if you are not in politics—whoever you are—nobody wants unsafe workplaces. Certainly nobody wants injuries in the workplace; there is no dispute about that whatsoever.

However, it is worth noting that Safe Work Australia conducts comparative performance monitoring and reports on workers compensation data on a state-by-state basis. I will quote directly from the last report, which was October 2011. This is very relevant to this debate. Of note in the report:

The reduction in the incidence rate of injury and musculoskeletal claims between the base period (2000-01 to 2002-03) and 2009-10—

So from 2000 to 2009-10, basically—

the reduction was 25%, which is below the rate required to meet the 2002-2012 National OHS strategy target of a 40% improvement by 30 June 2012.

This is the important bit:

South Australia was the only jurisdiction which met the required rate of improvement with 39 per cent improvement.

Clearly, our state is doing quite well in this regard. Can we do better? Of course, we can do better. No-one is arguing that; I want to be absolutely clear about that. No-one is arguing that.

However, when our state is compared to the other states—and this is Safe Work Australia. This is not a business report, this is not a biased report prepared by some particular organisation with a particular axe to grind; in fact, if Safe Work Australia had any axe to grind it would be to push for further safety measures. Yet, they say in their own words in their most recent report that South Australia is actually leading the way. Where is the case for change? That is my question.

The two questions that this bill raises are, firstly, to what extent do criminal sanctions bring about greater workplace safety? That is what this bill does: it imposes criminal sanctions for breaches in areas that it deems unacceptable and, indeed, creates criminal sanctions for them. Secondly, will imposing a very strict and wide-ranging set of procedural requirements on business and charitable organisations (that is, volunteer organisations, as the Hon. Mr Lucas referred to) lead to greater safety or just greater frustration and expense?

The Family First party is always concerned about safety in the workplace, as I am sure every member of this place is, but we have major concerns with a number of aspects of this bill. We believe that this bill places undue weight on the criminalising of certain conduct and places significant additional burdens on businesses and charitable associations, volunteers and the like. We are great believers in the concept of charitable work in the community and we believe that governments of all persuasions should support this work.

While every workplace accident is a tragedy, I do not see that increased rigour in the regulatory regime will necessarily prevent accidents. My question is: how does this bill actually improve safety? It is important that our businesses are not caught up in administration and red tape. While identical legislation in each state is highly desirable from an efficiency perspective, that goal should not result in the acceptance of bad legislation in this state.

There are specific matters of concern that I will now discuss in some detail individually. The first one was also highlighted by the Hon. Mr Lucas, and that is the issue of volunteers and charities. Volunteer and charitable associations play a vital role in our society. We need to give them every encouragement. My major concern in this bill is that it will act as a disincentive to volunteers and potential volunteers. There are many associations that have a few paid employees and many volunteers. Those do not come within the definition of volunteer associations in clause 5(8).

Therefore, these associations are caught by this legislation for the first time in many cases. Only associations with no paid employees whatsoever—and that is really important—are considered volunteer associations and therefore not caught by this particular bill. Clause 7 defines a worker as including a volunteer in a situation where any organisation has some paid staff. An example was given in an earlier contribution about a football club where you might have somebody who is paid to work on the bar, for example, for a few hours a week during peak periods. In that example, the whole organisation—all the volunteers, the people who clean the boots, wash the guernseys, make the pies, cut the oranges, etc.—would be caught under this legislation.

The feedback I am getting is that charitable associations that have volunteers carry out much of their work do not see any benefit from this legislation by way of increased safety for those involved. Rather, they are concerned that their determination to do good in the community will be sidetracked by the need to read up on the legislation and the very substantial regulations and to come grips with the applicable codes of practice. These are complex matters and things that people cutting oranges for their local football team really do not want to be involved in.

These associations are also concerned that there are very significant criminal penalties for failure to meet the standards. These significant criminal penalties apply regardless of whether or not there is any negligence and regardless of whether or not there is even an accident. That is a very significant change under this bill.

What are the respective duties imposed on the paid employees in the head office of a charitable association and the volunteers who do the actual work in the field? As I said, in the example I gave of the football club, these volunteers would be caught under this bill. Clause 28 sets out the duties on these people and clause 29 sets out the duties on every person at that workplace, and the people involved in that football club would be caught under this.

Clause 34 makes it clear that volunteers are subject to these duties. For all workers and all persons present at a workplace, whether volunteers or not, these duties include a duty to comply so far as the person is reasonably able with any reasonable instruction to allow the person conducting the business or undertaking to comply with the act. It is a very broad definition. What I can see will happen is that those in the head office of charitable associations will give instructions to volunteers to do such things as conduct safety audits and report any systems that are noncompliant with the act or regulations.

The bill provides clearly that someone must carry out these functions for all workplaces. These instructions may well be quite general in their terms, but the effect of such instructions would be to shift the duty of compliance from the paid employee in head office, who would thereby have done all they can, to volunteers who actually work at the site—'work' I use in the sense of a volunteer worker who is volunteering their time.

By that means a volunteer given such an instruction will become subject to serious criminal penalties if he or she failed to carry out those instructions in a competent and compliant manner. Who would want to perform volunteer work under these circumstances? Why would anyone want to volunteer under these circumstances if they expose themself to very substantial criminal penalties for simply volunteering at their local football club, for example, their local St Vincent de Paul or local whatever it may be.

The result may well be that the work able to be done by charitable organisations may substantially decrease. That is a genuine concern I have. My consultation with a number of charitable organisations around the place says to me that they also share that concern when the implications of this bill are explained to them. Volunteers do not want to spend their time and efforts in finding out what the applicable codes of conduct are or what the regulations are and making a detailed study of them when all that want to do is feed the hungry, supervise youth sporting teams, run a Scout group or whatever it may be.

They may feel well placed to use common sense to make their own decisions about doing what they regard as safe, without the need to formalise the process with record keeping and filling out of endless forms. They may simply cease volunteering and the community would certainly be much the worse off if that were the case.

There has been confusion by various opinions about the status of volunteers, under this bill and the current act, being thrown around in the media recently, which I will now attempt to clarify. Section 19 of the Occupational Health, Safety and Welfare Act 1986 (OHSW Act) prescribes duties for employers. An 'employer' is defined in section 4(1) of the OHSW Act—and I quote directly from the act:

A person by whom an employee is employed under a contract of service or for whom work is done by an employee under a contract of service.

In addition, section 4(2) of the act deems certain persons to be employees in the principal and contractor relationship.

An employee is defined in section 4(1) of the OHSW Act as a person who is employed under a contract of service or who works under a contract of service. Section 4(3) of the OHSW Act provides that, where a person in connection with a trade or business carried on by the employer, performs work for an employer gratuitously, the person will be taken to be employed by the employer. Accordingly, at present section 4(3) deems certain persons to be employees of an employer when they are performing basically services for free in connection with the business of the employer.

It is not clear whether the performance of these services is intended to include volunteers currently as the act stands (I am talking about the act and not the bill, for clarity). But the OHSW Act does not contain the word 'volunteer', nor does it specifically prescribe duties for volunteers. It is also not clear that the intention of section 4(3) is to prescribe an OH&S responsibility for those performing gratuitous work. I consider there is a strong argument that the sole intention of section 4(3) is to place duties or obligations upon employers who utilise these services in connection with their business and trade. This is somewhat complex, but I am getting to the point.

However, assuming volunteers are performing these services, they will be deemed employees if they are performing work in connection with the employer's business. Further, assuming the intention of section 4(3) is to ensure that such persons have OH&S responsibilities, then they will also have duties under section 21 of the OHSW Act. This point is not absolutely crystal clear in the legislation, but certainly upon the legal advice we have had, this opens up these people to potential prosecution. I suspect this is the point that has been central to the arguments that have been conducted in the media in recent times and it is something that needs further explanation. I am sure the minister will attempt to outline that when we get to the committee stage, if we get to the committee stage.

There will be some circumstances where a business, say, a car yard, is an employer because it engages persons under a contract of service. That car yard may also have persons performing services for free through a work experience person, for example. In those circumstances, the minister may be right when he says that the work experience people are treated as employees of the car yard and as such the law will be no different for them.

But—and this is the important point—that line of argument does not extend to circumstances where a retired lady of her own volition visits the Women's and Children's Hospital for the purpose of handing out handmade soft toys to sick children or whatever other volunteer activity may be referred to. In the case of that retired lady, she cannot possibly be performing work in connection with the trade or business of the Women's and Children's Hospital and that is the key point. Therefore, she will not be deemed an employee and as such she will not have OH&S responsibilities as prescribed by section 21 of the act, that is, the current act.

There are probably many other examples like the retired lady. The point I make is that she would be caught under this bill but she is not caught under the current act. The point of the debate which has been lost in translation is that there are thousands of people who perform volunteer work which is not in connection with a trade or business and who are not employees. It is these people who are misinformed about the OH&S obligations that they will have under these new laws. The bottom line is that they will be caught under this bill. They will be caught under this bill and they are not caught under the current act.

The matter gets further complicated under the new laws because volunteer associations will become, as was referred to by the Hon. Mr Lucas, 'persons conducting a business or undertaking'. That is the new term we see in the bill (the PCBUs) when they employ just one person. In those circumstances, the volunteer organisation will have OH&S responsibilities and their workers, including volunteers, will also have those responsibilities.

These scenarios are very different from the current laws and I consider any broad, sweeping suggestions that these will not be caught under this bill to simply be inaccurate. It is a complex matter but it is very important. We are changing the face of our volunteer sector and I believe it will have a very significant impact.

I want to very briefly emphasise the importance of our volunteer organisations to our society. I am sure that all members in this place would agree that our volunteers add a great deal to our community. The Australian Bureau of Statistics General Social Survey Summary of Results (No. 4159.0) released on 30 September last year for the 2010 Census indicated that in a 12-month period 6.4 million Australians aged 18 and over did some form of voluntary work. That is 38 per cent of the population in that age group.

These volunteers were spread across a wide range of age groups and were involved in work with such things as sporting groups, community welfare groups, religious groups, education and training groups and parenting groups. The benefit from volunteering to the Australian community has been estimated by the ABS at approximately $14.6 billion per year. The ABS figures published in 2006 showed that helping the community was the reason for volunteering for 57 per cent of volunteers. However, volunteers also identified benefits for themselves, with 44 per cent reporting 'personal satisfaction' and 36 per cent reporting 'to do something worthwhile' as the reason for being a volunteer.

I am sure that all of us in this place appreciate the benefit of volunteers. The point I raise is that suddenly they will be caught by this bill and we run the very real risk of people simply not sticking up their hands to be involved in these worthwhile pursuits. Will some people still want to pursue these things? Of course they will. The question is: will it be a disincentive for some people? I think equally the answer is: of course it will for some people.

Under the bill a workplace is defined as a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to be while at work. The concepts of 'a place where the worker goes' and 'a place where the worker is likely to be' are very vague concepts indeed. What if the boss does not know that a worker goes to a particular place? What if a worker goes to a place once or twice, but is unlikely ever to go there again? Does that qualify as a workplace? If a business or volunteer association sends workers into people's homes, for example, to provide home help for the elderly, these homes, under a strict reading of this bill, will be a workplace, yet the person conducting the business or undertaking will have no control over such places.

As I understand the bill, the person in charge will have a duty to ensure that all workers are made aware of the risks that might arise in people's homes and how to overcome those risks. Surely it is a matter of common sense as to what risks a person may face when he or she goes into someone's home. Do we really need to regulate this? Are we becoming a society where we assume that nobody has any common sense whatsoever?

There are difficulties in placing safety responsibilities on employers where they have no control over premises and in considering them a workplace. This is even more the case when the employer has no knowledge of the premises whatsoever and has never been there. If foster parents are caught by this bill—and it is my understanding that they would be—then their house would be deemed a workplace. Who is going to pay for any upgrades that are considered necessary to a house upon a safety audit, no matter how trivial?

Is this process really necessary in these circumstances? According to a report in The Australian on 19 January, Anglicare Victoria told The Australian it feared the new system would be so dysfunctional it would be impossible to comply with and lead to chaos for foster carers. There we have the Victorian branch of one of the main welfare agencies in Australia, Anglicare, saying that it thought, using its words, it 'would be so dysfunctional it would be impossible to comply with and lead to chaos for foster carers'. The Anglicare Victorian chief executive is reported to have said:

We consider this would be a compliance impossibility to ensure individual residential homes comply, and a financial black hole in addressing all the compliance requirement.

He went on:

There is a further possibility that as a result of this legislation foster carers may well withdraw rather than meet the compliance requirements.

Family First is aware that this is a federal initiative. This has been driven, I think with noble aims actually, to improve the level of similarity of our laws across the country, but I think we need to pause and take a serious look at the sort of comments that are being made by our major volunteer organisations and ask ourselves if this bill is achieving the objectives that it seeks to achieve.

We have to ask ourselves if there is a need for more regulation. Certainly in the eyes of Anglicare Victoria this poses a real threat. I am not convinced that there is a demonstrated need to expand the definition of the workplace to include places over which the employer has no direct control or even indirect control. I am also not convinced that there is a demonstrated problem with volunteers at charitable organisations suffering injuries on a regular basis that might be—and this is the key point—prevented by this bill. How will this bill prevent them? That is my question.

The obligations imposed by this bill do not simply require an employer to have sensible systems in place for safety and to avoid dangerous systems; rather, he or she must obtain and consider the legislation, regulations and all relevant codes of practice (which amounts to many hundreds of pages); keep up to date with any changes to them; consider all the risks by conducting a safety assessment; consider the costs associated with eliminating any hazards identified; consult with workers in accordance with a strict procedure set out; keep records of all assessments done, consultations and decisions made; and monitor compliance.

These processes are appropriate for an industrial plant and a place where workers work where there is obvious danger, but are not appropriate for a group of people meeting on a Friday night after work to distribute food to homeless people. That is so whether or not the group is part of an association that has many paid employees in its head office or not. As to the effect on business, my colleague the Hon. Rob Lucas outlined a number of figures, and I would like to add some more to that if I may.

I turn to a very significant part of this bill, that is, the effect on business itself. The Housing Industry Association has been one of the lead voices in the campaign against this bill, and I must say that they do present some very persuasive figures indeed. They have had management consultants Hudson Howells, in conjunction with quantity surveyors Rider Levett Bucknall, estimate the additional cost of building a house if this bill does become law, and the figures that they have put in front of us are, I think, extraordinary. They estimate the compliance cost to be approximately $20,088 for a single-storey home and about $28,450 for a two-storey house. The figures that these organisations have come up with are actually quite similar to the HIA's own estimates (the HIA's are slightly higher, but very similar).

My consultation with the building groups has informed me that the consequences for the housing sector will be the reduced ability of homebuyers to avoid this additional cost and therefore they will be subject to greater costs in building a home. Obviously, this will particularly effect first home buyers, who are the most price sensitive in this market. There would be significant job losses in the housing industry, and there is every reason to expect that other industries would be similarly affected.

The report also concluded that the consequences could include annual job losses in the order of 2,500 full-time equivalents in the building industry, and for South Australia generally annual job losses of 10,000 to 12,500, with the cost to the South Australian economy being up to $1.425 billion per annum. Even if people do not want to accept those figures, the point is that those are the figures that have been presented, and it must be said that they are very substantial figures. At the very least, they are cause for significant concern.

If this additional expense is necessary, all homebuyers will simply have to pay it or defer buying or building a house until they can pay the extra money. However, the information I have received from the Housing Industry Association is that the rates of injury on domestic housing sites is actually very low. The HIA states that the major builders in Adelaide who are their members, and who build 80 per cent of the houses around Adelaide, according to their own data have had only three incidents that have required some form of hospitalisation of an injured worker in the last five years.

The Hon. R.P. Wortley interjecting:

The Hon. D.G.E. HOOD: That's good; I look forward to hearing a response to it. I am not the authority on these figures; all I can do is repeat the figures that are presented to me, and I look forward to a response from the minister. He has every right to put forward the data he has; what I can tell you is that the HIA stands behind those figures—that they have had three incidents that have required some form of hospitalisation in the last five years on their building sites.

It is claimed that uniformity in laws across Australia will have great benefits for businesses that operate nationally, which I have partially addressed in my opening. However, it is my understanding that four jurisdictions across Australia have not adopted 1 January 2011 as a start date for this legislation; they are, obviously, South Australia, as we are still debating the bill, Victoria, Western Australia and Tasmania. All are giving detailed consideration to the provisions. I understand that Western Australia has identified some specific objections to certain provisions.

I now turn to workplace entry for unions. I accept that unions have a very significant and important place in industry and that over the last century, in particular, they have performed an outstanding role in improving safety and the like for workers. However, the reality is that there are worrying aspects of allowing work health and safety representatives of a union to have a right of entry to a workplace when that particular organisation does not even have any members of that union.

The size of the penalties is also something I have great concern about. The Family First party is in favour of penalties that encourage law and order, but there are many hardworking people in the community who operate small businesses and the like, and I believe that these people are concerned with the safety and welfare of their workers just as a normal part of them being decent citizens. They are concerned because they know the workers personally, they know their families and they are a part of their lives.

There are also workers compensation incentives to encourage safety awareness that already exist. There will always be a few who do the wrong thing in any group, regardless of what legislation we pass in this place, but I believe that the size of the penalties will not be a deterrent to them in many, many cases.

As a director of a family company that runs a small business, they might incur a penalty of up to five years' imprisonment for a breach—even a relatively minor breach—and his or her family company might be fined up to $3 million, which of course would send almost all of those small businesses to the wall, and not to mention ruin the lives of the individuals concerned. All of this is without an injury actually occurring, because it is not required in the bill for that to trigger the prosecution. Of course, I understand that the courts do not normally impose the maximum penalty, but the point is that the threat is there.

The size of the penalties would also be a concern to charitable associations that are caught by this bill. Those in charge of charities, where most of the work is done by volunteers, will presumably ask volunteers to carry out safety assessments to comply with the requirements of this bill. Who would want to take on such a charitable task as a volunteer and thereby risk a penalty of up to $50,000 for the lowest class of offence, namely, where there is no risk of death or serious injury. This could occur without negligence, simply because the volunteer failed to sufficiently acquaint him or herself with the applicable code of practice.

I do not dismiss my concerns because of a belief that a volunteer would not be prosecuted in those circumstances. We need to look more closely at the sorts of businesses and undertakings that are caught by this bill and the applicable penalties, and ask ourselves if they are in fact suitable for the offence.

Another area of concern to Family First in this bill is the change in the right to silence provisions. There are other matters of concern. This includes clause 172, that provides for the reversal of the right to silence that people would otherwise have where they might be accused of an offence outside of this particular bill. The right to silence is a common law right that has existed for hundreds of years. The law regards it as unfair if a person accused of an offence is compelled to answer a question where the answer would amount to an admission of criminal guilt. Rather, he or she can decline to answer it if they so choose.

The rule is particularly important where the person being questioned is taken by surprise or is not particularly astute in legal matters. It is generally considered fair that he or she should be given an opportunity to consult their lawyer or other adviser and then decide how to answer those questions. Under this bill, the person would be required to answer any question, even if it did incriminate that person, but the answer could not be used in a prosecution. However, the prosecutor would of course know that the admission was made, and that knowledge would be a useful weapon in any prosecution.

Let us be clear: the provision is not about preventing accidents, it is about the gathering of evidence for a prosecution after the relevant events have occurred. My view is that we should only remove legal privileges that have existed for centuries if there is a clearly demonstrated need. South Australians who operate businesses and employ workers are not a group of serious criminals and gangsters. The common law rule for them of the right to remain silent should continue no matter what.

I have a couple of final points. The first is the pressure to prosecute. Clause 231 sets out a procedure for a person to follow if he or she believes that the government regulator should commence a prosecution but has not done so. It should be up to prosecution authorities to determine whether or not a prosecution is appropriate, free from all outside pressure. Indeed, the Director of Public Prosecutions has been set up specifically for that purpose in relation to the prosecution of serious crimes generally.

Any person who has sought to apply pressure for a prosecution to commence would presumably have his or her own reasons. The reasons behind such pressure may or may not be proper, and that is an important point. This section should be removed and the regulator should make up his or her own mind whether or not to prosecute for any breach. Any person could still write to the regulator, making it aware of any facts or even seeking action, but such a request would not be supported by legislation that might require the legislator to refer the matter to the DPP or to give reasons for not prosecuting any person. The point is that this particular clause actually creates a situation that could be used with malice or with bad intent.

Let me summarise my contribution today. Family First is strongly of the view that it is for the proponent of any bill to justify the need for change. We do not believe that the case for change has been well argued or has been successfully argued in this case.

The two bases on which this legislation is being pursued are essentially a need to improve safety and, secondly, the need for national uniformity of legislation. I am not persuaded that this legislation will have any beneficial effect on safety. All it will do is increase the documentation required. There is no guarantee at all that there will ever be uniformity of legislation across Australia. Indeed, as I have outlined, it looks almost certain that there will not be.

So, we should not feel pressured into enacting bad legislation that will be a hindrance to businesses and charities in this state. There are many flaws in this bill, of which I have outlined just a few, and I am particularly concerned at the following aspects:

the effect it will have on charities that perform good work in the community;

the cost of compliance for businesses and undertakings—firstly for charities that simply cannot afford such costs and also for businesses that will try to pass on the costs and thereby increase the cost of things such as housing by a very substantial amount;

the flow-on effect of those cost increases resulting in job losses and a slowing economy;

the very loose definition of the word 'workplace' in the bill and the consequent difficulties in defining the area over which the employers have obligations, particularly when they have no control over that particular area;

the right of entry by unions where they do not even have members on that site;

the size of criminal penalties are excessive;

the removal of the well-established common law right to silence; and

the ability of a person who may well have a self-serving or even a malicious intention to put pressure on the regulator to prosecute a particular employee.

There are many, many more things I could say but, in my very quick closing remarks, I would make it clear that we do not support this bill, we will not support the second reading and we will vote against this bill at the second reading. If the bill passes at the second reading, there are substantial amendments that the Liberal Party has prepared which we intend to support. It will come as no surprise that we do not intend to support the amendments that the Greens have put forward on this particular bill. I ask that people really consider what the impact of this bill will be for our state and businesses, for volunteers and all the other issues I have addressed.

Debate adjourned on motion of Hon. C. Zollo.

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