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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-07 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Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill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 5 May 2015.)

The Hon. D.G.E. HOOD (16:03): I rise to speak on the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill. The circumstances, I am sure all members would agree, that have resulted in this bill coming to the parliament are truly dreadful, and have garnered support and sympathies of those both in this chamber and in another place.

The serious injury or death of anyone at work is obviously tragic, and it is made worse when there is the possibility that an employer may have been at least partly to blame. I am not commenting whether they were in these particular instances, but it is tragic when that is the case, especially so when those employers may not face punishment for their role in the circumstances which have contributed to these tragic outcomes.

This bill inserts a transitional provision into the Work Health and Safety Act allowing the minister to extend the time limit to commence proceedings under the now repealed Occupational Health, Safety and Welfare Act 1986. There are two work health and safety matters that were to be prosecuted but, due to technical errors, they were unable to proceed. We are now being asked to change legislation retrospectively so that these two matters may be judicially determined. There has, of course, been some strong opposition to the proposed legislation. Business SA has said, and I quote:

Given that the period in which a prosecution can be filed is two (2) years, this in no way explains why the proceedings were filed so late within that statute of limitations that once the error was realised there was insufficient time to correct the error and refile proceedings.

There are, of course, reasons why a lawyer or agency might file proceedings close to the limitation period; however, one would expect that specifics, checks and balances would be in place to ensure that correct procedures have been followed to ensure the accuracy of the filing. As has been mentioned in this place, as well as via numerous submissions, it is unclear exactly how this technical error occurred, whether by error, negligence, incompetence; we do not know.

The comment has been made (and I do tend to agree) that there should be accountability for that mistake, and that the responsible department should be audited, with changes made and action taken where appropriate. It is inconceivable to me that government would amend this time limitation despite the significance of the matter, in circumstances where a private lawyer had improperly filed proceedings or made other technical errors preventing the matter from reaching judicial determination.

If this happened in a private setting, we would not be here today, seeking to change the legislation, I am sure. It therefore begs the question of whether or not the time limitation should be changed at all. We agree that two terrible sets of circumstances have occurred, and the families may well like to see these employers give account of their actions in an attempt to secure what they feel is a just outcome.

Should this bill pass into legislation, there are no guarantees of the success of these matters; however, should this bill not pass, there may be avenues by way of civil litigation and ex gratia payments available to those affected. Whilst compensation can never account for the injury or loss of a loved one, it may go some way towards acknowledging an injustice that has occurred. Sir, that may be a good opportunity for me to pass on my sympathies and condolences to the families involved.

In relation to the changing of the limitation of time under this bill, of course, the usual argument has been raised. There are three clearly recognised reasons for upholding limitations of time with respect to statues, and they are: firstly, a plaintiff with a good cause of action should pursue it with reasonable diligence; secondly, the defendant might have lost evidence to disprove a stale claim, if we are talking about exaggerated time frames; and, finally, it has been suggested by Halsbury's Laws of England that long and dormant claims have more cruelty than justice.

It is a simple logic that the longer a period between an accident and a proceeding, the more difficult it becomes to ensure witnesses are available for trial. The accuracy of testimony and the ability of a witness to recall the events will also suffer. That being said, Family First is not opposed to retrospective legislation in some instances. For example, historic sexual abuse cases should, where possible, be prosecuted. Indeed, as the Hon. Mark Parnell mentioned before, it was Family First, through the Hon. Andrew Evans, that moved a bill to that affect which passed in this place a number of years ago.

There were of course numerous reasons why a sexual abuse case might not be prosecuted under the previously legislated time limitation. The change in legislation was about victims' rights and acknowledging that there are sometimes genuine and often highly personal reasons why an action can not be brought within that time frame. The change was not, however, brought about to correct a technical error made by an agency or anyone else.

The scope of this legislation has also been commented on. Whilst it is only intended that the changes made under this bill apply to the two matters at hand, it is entirely possible that there could be others. I accept that the government is genuine and has sought to identify which matters would be affected, and I have no reason to question the information which has been provided. But the potential remains, despite that, that there may be other matters that SafeWork, for whatever reason, may not be aware could fall under the auspices of this legislation, for example.

I do accept the submissions received by my office that this bill would set an unacceptable precedent where the government of the day (be it Liberal or Labor) or any future government could argue that an administrative error rightfully should be fixed via legislation. We certainly do empathise with the injured worker and their families, and the friends of the worker who lost his life. We have certainly considered at length the provisions of this bill and the reasons for its inception. However, under these circumstances, as they are currently presented, we are not convinced that this bill is the appropriate mechanism to correct the administrative error that has occurred. Again, I offer my sincere sympathies and condolences to the families involved, but we are not able to support the passage of this bill at this time, under these circumstances.

Debate adjourned on motion of Hon. J.M. Gazzola.

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