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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-05 Daily Xml
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Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2015.)

The Hon. R.I. LUCAS (16:57): I rise on behalf of Liberal members to address the second reading of the legislation. We were advised that this legislation has been prompted by the processes in relation to two cases in relation to workplace accidents: one that tragically ended in the death of a worker, which we understand occurred on or about 9 October 2012, and the second which resulted in serious injuries to a worker, which occurred we understand on or about 22 October 2012.

At the outset I am sure I speak on behalf of all members when I indicate that we extend our sympathies to the families and friends of the injured worker in one case and the worker who died tragically as a result of the workplace accident in the other.

We are advised that under the occupational health, safety and welfare legislation, now the work health safety legislation, the government and principally SafeWork SA has a two-year period within which it has the responsibility to commence prosecutions if it so chooses.

In the cases that we are talking about, which occurred in October 2012 on varying dates, two years later in October 2014, some time during that two-year period (one would have hoped well prior to it), SafeWork SA would have commenced proceedings. That does not mean of course that the proceedings are concluded; it just means that the proceedings need to have commenced.

The only information that this parliament is given by the government is in minister Gago's second reading which says that the government became aware of a technical error in the filing of the complaints for these matters. No explanation is given by the government as to what this technical error supposedly is, how it came about, and why there were no proceedings issued well prior to the two-year expiration date for commencement of proceedings.

Certainly I think that, for legislation as serious as this, the parliament is being treated with contempt when the minister and the government simply say, 'We want you, through the stroke of a legislative pen, to retrospectively change the law to initiate criminal prosecutions,' and all they say is 'Well, look, there was a technical error and we would like the parliament to help us to correct it.'

So, certainly in the minister's response to the second reading, and certainly if the bill proceeds beyond the second reading through the committee stages, the minister and the government should place on the record in a transparent and accountable way how this dreadful set of circumstances eventuated, and I will address some comments about that in a moment. In the absence of any factual information put on the record by the government, the rumour mill is rife that there was a series of incompetent processes and decisions undertaken by SafeWork SA, and that one part of that incompetent process was that the government and SafeWork SA got the wrong person to sign the documentation. Something as fundamental as that, the rumour mill says, was incorrect, and that this was a significant factor in the inability for the prosecutions to commence.

The other issue which we will have the opportunity to explore is that lawyers experienced in this jurisdiction say that this issue is a deliberate policy that the government and SafeWork SA have adopted over many years. They have given a number of examples, not in relation to these two cases, where prosecutions are only ever lodged or commenced virtually a day or two prior to the expiration of the two-year period, and they say that it is a combination of SafeWork SA and the government not treating these cases with a sufficient degree of urgency.

I say to members in this chamber: how could you as a government and as a minister and as an agency not treat the death of an injured worker as serious enough and urgent enough to get off your backside and, if there is a legal view that a prosecution should be initiated, why would you not actually do it as quickly as possible, certainly well prior to any possibility of the two-year period expiring, and certainly not adopt a deliberate policy of lethargy, of indifference combined with incompetence, in terms of not commencing a prosecution well prior to the two-year period?

There are some other lawyers—and this is just a minority view that has been expressed to me—who believe that part of the deliberate policy, in addition to not treating these cases urgently enough, is that some within SafeWork SA take the view that, by delaying the prosecution, it gives SafeWork SA investigators and officers and others greater powers to collect evidence, because they argue that there are greater powers for investigators prior to a prosecution being initiated to either demand answers or have access to worksites or get evidence in certain ways which would be different if court proceedings had already commenced and you had an issue of prosecuting lawyers and defence lawyers already actively engaged on both sides.

As a non-lawyer, I do not profess to express an opinion on that, other than that, in the absence of any information from the government and, clearly, where we have demonstrated incompetence from the government, from ministers and from SafeWork SA and possibly other agencies such as crown law, this chamber ought to be demanding answers, irrespective of the view that they may well take on this legislation, ultimately.

Mr President, one of the ministers responsible for the legislation of SafeWork SA during this period, as you would well know, was you, Mr President, from the period of the accidents in October 2012 through to January 2013. Whilst, Mr President, you can be blamed for many things, and I am sure you are and will continue to be, it is hard to not argue that, given you were only the minister, as I understand it, responsible for the agency for that period of three months or so out of the two-year period, the onus of ministerial responsibility should rest with the person who succeeded you, and that is indeed Mr Rau, who has been responsible for SafeWork SA since January 2013 to the current date and therefore was responsible right through the period from January 2013 until October 2014.

This government and these ministers, in particular, minister Rau, have to accept government and ministerial responsibility for the incompetence and the ineptitude and for the tragic circumstances that appear now to have been caused by SafeWork SA, under their responsibility, not doing what they were meant to do in relation to potential prosecutions under work health and safety legislation.

Clearly, SafeWork SA, as an agency, must be held responsible and accountable. Ultimately, they are the ones who must make the judgement as to whether or not prosecution should be initiated. Yes, they may well need to take advice on legal issues from crown law. There may well have been problems in terms of the way the Crown handled legal advice. Again, we do not know, because all the minister says in this chamber is, 'There was a technical issue, and we now need to fix the technical issue.'

Unsurprisingly, a significant number of stakeholders have expressed grave concerns about this principle and the legislation. The President of the Law Society of South Australia, Rocco Perrotta, in today's Advertiser and in separate correspondence to the Liberal Party, put similar views. He is quoted in today's newspaper as saying, 'the organisation [the Law Society] agreed with this proposition', that is, the proposition Business SA had been putting. The quote continues:

'The Law Society opposes the Bill because of our opposition to retrospective legislation in principle,' he said. 'The Society is also concerned that the legislation could have unintended consequences in terms of capturing people it was not meant to capture. Generally speaking, retrospective legislation is unfair because someone could be prosecuted for conduct that was not illegal at the time it occurred. In addition, it can be particularly oppressive and unjust for the legislation to be introduced to overcome the reasons for a failed prosecution. For this reason the [Law] Society is concerned that retrospective legislation should not be introduced for the sake of prosecuting specific cases.

Business SA publicly today put some statements on the record, and they expressed similar views on the issue in correspondence to the Liberal Party. Their boss, Nigel McBride, said in The Advertiser today:

The rule of law is a cornerstone of modern democracies. It enshrines the legal principle that citizens should not be exposed to arbitrary and oppressive government decisions. Every citizen should be able to rely on the fact that governments and government agencies are bound by the same law as everyone else.

The rule of law protects individual liberties by ensuring, for example, that criminal punishment cannot occur without due and proper legal process. It has long been established in Western democracies that retrospective changes in criminal law and process to carry out a prosecution that otherwise would not be lawful is manifestly unjust and should only be contemplated in the most extreme circumstances.

And, further on:

Statutes of limitations protect defendants (who are considered innocent until proven guilty) from the onerous burden of protracted proceedings and also to ensure, for example, that the evidence and accurate witness accounts of the incident are still available. Frankly, any denial of the family's right to a proper legal process lies at the feet of the state government regulator and, accordingly, that agency should be held accountable.

If the Government is allowed to retrospectively change the WHS laws it will set an unacceptable precedent. The Government, or any future government, could argue that, as the law has been changed to fix a totally indefensible administrative failure by a regulator, any other legislation is therefore open to retrospective amendment. That's a slippery slope I'm surprised this government is even willing to entertain.

That was from the head of Business SA. As I said, many other stakeholders have put similar points of view to the Liberal Party. The National Electrical and Communications Association, the Master Builders Association, the Australian Hotels Association, the Australian Industry Group and the Housing Industry Association have all expressed extreme concern at the legislation and urged opposition to the legislation.

Various lawyers have expressed, in addition to the Law Society position, opposition to the legislation. Other groups have similarly expressed significant concerns about the legislation but have either taken no formal position or have indicated to the Liberal Party that they believe the Liberal Party should not oppose the bill. Those groups include the Motor Trade Association, the South Australian Wine Industry Association, Self Insurers of South Australia and the Australian Meat Industry Council.

Whilst the Liberal Party did not receive any submissions from SA Unions or Voice of Industrial Death, my understanding of their position would be that they support the government's legislation and it may well be that other members have received submissions from either or both of those organisations. Certainly, the Liberal Party has proceeded on the basis that we would expect that they would be supporting the government's position.

In summarising the Liberal Party's position and, I think, the position of many others in the community, the issue is a significant one of precedent—that is, if this legislation is to be approved, it is the foot in the door in terms of retrospectively approving criminal prosecutions. You have had an indefensible behaviour and actions by a government, ministers and SafeWork SA; they have not done what they were meant to do. If members vote for this bill, if what we are going to do as a parliament is to say to them, 'Okay, after two years, you didn't do it but we will now retrospectively allow it,' that principle has been established.

I know the minister is saying that it is only in relation to these two cases, but I say to members in this chamber, what say they in two years' time when the minister comes and says, 'Well, look, SafeWork SA has made another error. Someone has been significantly injured or killed at work but there was another technical error and we're just beyond the two-year period and you've already approved it once for the reasons that you've given that you want to see justice for the family and the friends of the injured workers. What's the difference with doing it again?'

What is the argument to the injured family and friends of those workers two years down the track if members were prepared to say, 'Well, we were prepared to assist the prosecution two years ago because of errors, but in two years' time will be saying, "No, no; we're not prepared to do it. We warned the government we would only do it once and you're going to have to behave from now on".'

But what is the argument at the time in two years? What is the argument down the track, when four years after a workplace injury, minister Rau, or a minister, comes to the parliament and says, 'Look, it's four years afterwards, but we have found a very significant problem. There was a technical error in relation to the proceedings and we think we should proceed with a retrospective prosecution.'

What is the argument? What is the difference between three years, four years and two years? It is just a point in time. Are we saying, or are those who want to support the legislation saying, 'Two and a bit years—2¼ years or 2½ years—is okay, but we won't accept three years,' or 'We won't accept three and half years,' or whatever it might happen to be. If you are prepared to support the principle of retrospectively amending the legislation for prosecutions, what is the significance of two and a bit years as opposed to three and a bit years? What is the significance of these two particular cases and cases in two or three years' time where similar incompetence by ministers, governments and SafeWork SA mean the prosecutions have not been proceeded with?

I think that is the issue that members in this chamber have to address in terms of the legislation. If they are going to establish the principle of, 'Yes, it's okay to retrospectively amend in this case,' then they have established the principle and at some stage in the future exactly the same argument can, and I am sure will, be put to them in terms of, 'There has been a different set of circumstances equally significant and we need to correct the legislation.'

I know in this chamber other than myself the fiercest critic of the operations of SafeWork SA has been the Hon. Mr Darley. The Hon. Mr Darley in this chamber, publicly and on parliamentary committees, has been very critical of SafeWork SA as an agency. It is not that his criticisms have been unheard by SafeWork SA or various ministers, going back through three or four of them. We are all aware, and they are all aware, of the very significant criticisms that have been made of SafeWork SA as an agency.

What we are being asked to do here is to hide and cover up the incompetence of SafeWork SA as an agency. They can rest comfortable in the fact that if because of their lethargy, slackness, incompetence or deliberate policy, or a combination of all of the above, they do not meet the two-year time frame, then they will just go and convince the minister to take it to parliament and to change the legislation and to retrospectively apply it. That is the principle that we are being asked to establish.

Whatever happens to this legislation, in my view the Occupational Health Safety and Welfare Committee of this parliament, a joint standing committee, ought, as part of its job—and I have some regard for the chair of that committee, Steph Key, the member for Ashford—as one of its responsibilities, in my view, to haul SafeWork SA in. That committee, when I was on it, did a review of SafeWork SA, and the Hon. Mr Darley was fiercely critical of their processes. This was a number of years ago now and they have learnt nothing—learnt absolutely nothing—since then.

They should be hauled before that committee, a term of reference, not for an overall review, but specifically in relation to their prosecution policy and this issue of whether or not they give priority and precedences they should in terms of prosecutions, and whether or not it is correct that there is a deliberate policy within SafeWork SA to leave prosecutions right to the end of the two-year period. That will be easy enough to establish in relation to these serious cases. Let's get the evidence on the record in that committee as to how many examples there have been where they have left the initiation of proceedings until the end of the two-year period.

In my view, the second thing that should happen, irrespective of whether this legislation is passed or not—and, Mr President, you are a former minister for SafeWork SA—is that the current minister, minister Rau, ought to get off his butt. He has more than 20 staff sitting in his office and Heaven only knows what some of them do with themselves during the day. He should not have to do this, but because this department or agency is so incompetent, he should be insisting on a monthly report at the end of the month in relation to the time lines for prosecutions under the work health and safety legislation.

You would hope that a minister should not have to do that, but he has advisers in this particular area—or an adviser, at least—and a monthly report should be demanded from SafeWork SA saying, 'Okay, how are you proceeding in terms of the timeline? Why is it that we are getting to the 18-month mark for a workplace death'—or a significant injury—'and you haven't commenced proceedings? What needs to be done in terms of ensuring you come to a conclusion?'

If you want to prosecute, you do it well prior to the expiration of the two-year period. That is something that a competent minister's office could do that was useful that would add value not only to the work of the government, the minister and his office, but also to provide an oversight of the work of SafeWork SA. We can no longer just tolerate incompetence, mismanagement, negligence, and ineptitude by an agency like SafeWork SA.

I know the minister will say 'Well, I'm doing a review of SafeWork SA.' Okay, terrific; after 13 years they are doing a review of SafeWork SA. There have been so many warnings from the member for Ashford, the Hon. Mr Darley and others about the ineptitude of SafeWork SA. That report from the Occupational Health and Safety Committee of the parliament was first started I don't know how many years ago, let alone when it finally reported. And fair enough: the minister is looking at trying to take some of the responsibilities away and define the roles and responsibilities of SafeWork SA. We can debate those issues if and when they come before the parliament, or if and when they have to be debated.

That does not negate or move away from the issue of the responsibility and competence of SafeWork SA as a body in terms of how it has been handling these processes, and if it is continuing, and whatever the agency is that continues in this particular area, in terms of ensuring competent management of processes for prosecutions if offences are committed—serious offences like this—where the death of a worker and the serious injury of a worker have been committed, and whether or not a particular company or individuals ought to be prosecuted. That is the responsibility for minister Rau, as it is at the moment, and his office; it is a responsibility for the government; and it is also a responsibility for SafeWork SA.

As I said, this bill is copping the easy road out. It is excusing the ineptitude, incompetence and mismanagement of SafeWork SA, the minister and the government, and it is for those reasons that the Liberal Party will not be supporting the third reading of this bill. We will not oppose the second reading of the bill because, during the committee stages of the debate, we want to take the opportunity to put some of these questions directly to the minister and the government in terms of how they respond to the particular issues that have been raised by many in the community about the government's incompetence in handling this whole area.

The Hon. T.A. FRANKS (17:24): I rise to speak on the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill 2015 and indicate to the chamber I will be the lead speaker and only speaker on behalf of the Greens. I also indicate will be supporting the bill.

The bill before us asks us to amend the Work Health and Safety Act 2012 to facilitate prosecutions occurring under the old Occupational Health, Safety and Welfare Act 1986. The bill inserts a new transitional provision into the Work Health and Safety Act which allows the Minister for Industrial Relations to extend the time to commence proceedings for an offence. The new transitional provisions will give the minister the capacity to do what currently cannot occur because the two-year time limit is up under the old Occupational Health, Safety and Welfare Act.

By way of background, there were two complaints laid by an officer who has an authority under the Work Health and Safety Act, but does not hold that authority under the Occupational Health, Safety and Welfare Act, to file a complaint. Therefore, these two complaints were ruled as invalid and have since been withdrawn. The statutory limit under the Occupational Health, Safety and Welfare Act has since expired, as I mentioned earlier, and the time restraint can only be relieved by statutory amendment, which is why the government has proposed the amendment bill.

My office has been lobbied by Business SA and other business and industry groups, who have expressed some sympathy for the two families concerned and, of course, the injured worker, however, they strongly oppose this bill. I would like to refer to Business SA's letter to my office, which states:

Retrospective legislation is rarely good policy. It should only be considered in relation to criminal matters in the most extreme circumstance, as it is well recognised in jurisprudence to be a fundamental human right which should not be abrogated by retrospective legislation in order to achieve a criminal conviction.

The Law Society has also objected to the retrospective nature of this legislation. The Greens have seriously considered this issue, but in the interests of justice we believe that the bill deserves support. Retrospectivity can manifest itself in various ways. What is generally unacceptable is where legislation seeks to make some activity criminal that was previously legal. This bill does not do that. That is not the situation here, if it was then the Greens would probably vote it down. However, it is a very different situation we are presented with in this particular debate. In the present case, the retrospectivity merely involves extending the time limit within which a pre-existing criminal offence may be prosecuted. This is a very different situation to that other proposed.

In fact, it is not unusual for a parliament to retrospectively extend time limits for the commencement of proceedings. A good example here, of course, is in relation to sexual offences against children, where this very parliament has extended limitation periods for bringing both criminal and civil cases. The community does not find it acceptable for people to avoid responsibility for their actions due to a technicality, particularly in relation to arbitrary limitation periods, particularly where, as the Minister for Industrial Relations said in the other place, 'One person was killed and one person was damn near killed.'

In the present case, the community expects these serious matters to be tested in the court and this legislation will allow the courts to test it. The Greens have given great consideration and weight to the circumstances in which this bill has been introduced and we will support the bill and we hope that it will not take 19 months to pass through this chamber, as the work health and safety legislation did, to our shame.

Debate adjourned on motion of Hon. T.T. Ngo.

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