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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-12 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Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill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 7 May 2015.)

The Hon. G.A. KANDELAARS (17:11): I rise to support the Work Health and Safety (Prosecutions under Repealed Act) Amendment Bill 2015 and, in particular, respond to the Hon. Rob Lucas's second reading contribution. I am appalled at the opposition's position in relation to this bill. It is nothing short of a disgrace. The opposition hides its disdain for workers under the guise of arguing the danger of retrospectively changing the statute of limitations on the bringing of legal action under the former act. In truth, what the opposition is effectively saying is that the victims of work place accidents should be prevented from seeing justice served on the basis of a technical error on behalf of SafeWork SA. Such an outcome would be a travesty of justice.

Given the seriousness of this matter, it is incumbent on the government to do all that is necessary to ensure that prosecution concerns are heard before the Industrial Relations Court of South Australia. This bill proposes to allow the proceedings to proceed 'where proceedings previously commenced against the person for the offence have been brought to an end because the person who purported to bring them was not authorised to do so.' Not an unreasonable proposition in my view.

Let us be clear. This is about two proceedings involving workplace accidents. In one case an individual died and in the other case an individual sustained serious head injuries. It is in the public interest that each of the companies concerned is held to account on whether or not they were in breach of the work place safety laws.

The Liberal Party's position is to say that to allow such an action would be a travesty for the employers involved. What about the victims: the families, the workmates? No. Instead, those opposite simply think, 'How can we appeal to our voter base. How can we appeal to the big end of town, to our donors, to the men and women in boardrooms, in ivory towers' where, I have to say, workplace safety seems to be nothing more than an expense and an inconvenience. This is what those opposite think about justice for working men and women. What a disgrace, an absolute disgrace!

Let us look at the reasoning that they have applied here. The point the Hon. Tammy Franks made in her second reading speech is very relevant. The bill before the council does not seek to make an activity that was previously legal, illegal; it seeks to address a technical error in the lodgement of a prosecution. On that point, we have seen statutes of limitations repealed in this place in the past for a number of crimes.

I note that in 1985 the statute of limitations was removed from crimes such as rape, indecent assault and incest. In 2003 the statute was further amended to apply retrospectively for such crimes allowing for prosecutions to occur for crimes such as rape which happened before 1982. That bill was actually supported by Family First, Nick Xenophon and those opposite, the Liberal Party. I understand that at the time the Liberal Party actually wanted to extend the rights of victims through the introduction of additional compensation measures through an amendment to the Victims of Crime Act as well. Both the 1985 and the 2003 acts gave justice to victims of horrible crimes. I ask why such justice should not be afforded to a worker who suffered death and another suffering serious injury, that the bill before us seeks to address. There are very good reasons, in this case, to do the same.

As for those who oppose the bill, I suggest they reflect on the rights of victims of workplace injury. To Business SA, shame on you; to the National Electrical Contractors Association, shame on you; to the Master Builders Association, shame on you; to the Australian Hotels Association, shame on you; to the Housing Industry Association, shame on you; to the Australian Industry Group, shame on you. To the Law Society I would ask: how principled is it to deny the victims of workplace accidents some redress based merely on a technicality? Shame on you.

The great pity of the debate on this bill by those opposite is that it is purely driven by the politics of opposition. Of course, I have come to expect nothing more from the Hon. Rob Lucas, after 30 years in this place and more than 20 years in opposition. It is the modus operandi of somebody who has forgotten how to govern. I could hope for some humanity but, sadly, no.

As is the ploy of the Hon. Rob Lucas, he denigrates those who work for SafeWork SA by innuendo and supposition. Does he provide this chamber with any evidence of his assertions? No, of course not. He then asserts that the committee members of the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation have expressed concerns about SafeWork South Australia. That is true, but what he fails to say is that those complaints are quite often for opposite reasons; very opposite reasons. In the case of the Hon. John Darley, it has been because he believes SafeWork SA is too eager to prosecute employers. In the case of the Hon. Steph Key, she believes they fail to take up prosecutions for OH&S breaches.

Of course, there were failings by SafeWork SA in terms of the handling of these investigations, and I am advised that SafeWork SA has since overhauled its investigation management which includes strategic investigation planning, improved governance arrangements and the introduction of key performance indicators related to the timeliness of completing investigations—80 per cent to be completed in 180 days and 100 per cent in 270 days.

As I said earlier, what about the victims here—the families, the workmates? What about the travesty that the opposition to this bill will have on those people? Those opposite should hang their heads in shame. Shame on you. I commend this bill to the house.

The Hon. J.A. DARLEY (17:19): I rise to speak on the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill 2015. The bill, as we know, is necessary in order to allow two prosecutions under the repealed act to proceed. Both cases deal with serious workplace incidents which resulted in a fatality in one case, namely, the JT Johnson case, and serious head injuries to a worker in the other, namely, the Fix Force case. In its second reading report, the government states:

Last year the Deputy Premier became aware of a technical error in the filing of the complaints made for these two matters. The nature of the error meant that it was not possible to correct it by single amendment of the complaints.

The only way to continue with the prosecutions is to file fresh complaints, making the same allegations, with the error corrected. However, the statutory limit under the repealed Act has since expired on each of these matters, which prevents the prosecution from proceeding under the existing complaint. For these prosecutions not to proceed, due to a technicality, is unacceptable.

The report then goes on to provide that:

It is the government's view that it is in the interests of justice that these two matters have the opportunity to proceed to a judicial determination on the merits of the case.

I have to say at the outset that I am equally as concerned as other honourable members about the lack of detail that the government has chosen to provide on the public record regarding the circumstances surrounding the technical error that resulted in the need for this bill. There is no detail about the nature of the technical error, and certainly no detail about why the complaints were filed so close to the two-year statutory limit. Those details have not been made clear as a matter of public record. Instead, members like myself have had to seek out the information from the minister's department behind closed doors.

The Hon. Rob Lucas is quite right in his criticisms of the government's approach in this matter; the lack of transparency and accountability on the part of the government has been nothing short of abhorrent. The minister does need to take some responsibility for this situation, because, as we know, ultimately the buck stops with him.

I know that when I met with the acting director of SafeWork SA, Ms Marie Boland, and the Deputy Premier's adviser, Jim Watson, last week, my first question was, 'How on earth did this happen?' What systems did SafeWork SA have in place to monitor the progress of matters, especially in terms of the two-year statutory limit? Why is it that these matters were filed so close to the two-year limit?

What we now know, as a result of seeking out that advice, is that the technical error that the government refers to is one that involves the signing of four complaints by the then newly appointed director of compliance and enforcement within SafeWork SA. All four complaints fell within the scope of the repealed act. Unbeknownst to the newly appointed director, she did not have the authority to sign the complaints filed under the repealed act. The problem was identified by sheer coincidence when a defence lawyer handling one of the matters saw a new name and questioned her authority to sign the complaint.

In two of the matters, SafeWork SA was able to rectify the problem by filing fresh complaints because they fell within the two-year statutory limit. In the other two cases however, namely, the JT Johnson case and the Fix Force case—both very serious cases—the charges were laid so close to the statutory limit that there was simply no opportunity to rectify the problem. Had all this occurred under the new act, there would not have been a problem, because the director does have jurisdiction under that legislation.

Similarly, had the complaints been signed by an inspector rather than the newly appointed director, there would not have been a problem, because all other inspectors were duly authorised to sign such complaints under the old act. But unfortunately for SafeWork SA, and everybody else caught up in this terrible mess, neither of those two things occurred. I do not think any of us can begin to imagine what the families and friends of the two workers involved in these cases and the one worker who did survive his injuries must have been going through when they learnt why these matters could not proceed. When we talk about injustice, that is where our focus should be—on the victims and on their families and loved ones.

The concerns raised by the Law Society, by Business SA and by the opposition have not fallen on deaf ears. I have considered those issues carefully and agree with many of the sentiments that have been expressed, especially by the Hon. Rob Lucas in this place. That said, the Hon. Tammy Franks has also made some very valid points in relation to those same issues. I know we all tread very cautiously when we are asked to consider retrospective legislation, but I think we are dealing with a very different situation here.

We are not being asked to make legal some activity that was previously illegal. For that reason, like the Hon. Tammy Franks, in the interests of justice I believe this bill deserves support. To that end I have sought an assurance from the Deputy Premier that there will be no further surprises and that there are no more than two cases to which this bill will apply. The Deputy Premier has provided me with a written response, which reads as follows:

I write to confirm that there are two matters which fall within the scope of the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill 2015 (the Bill), namely J.T. Johnson and Fix Force.

There remain another four matters before the Industrial Relations Court where proceedings were initiated under the now repealed Occupational Health, Safety and Welfare Act 1986.

Recently a question was raised relating to one of these matters, which involved a complaint issued against a public sector department. However, I have been advised that this matter does not fall within the scope of the Bill.

The remaining three matters were all initiated by a person who had legal authority to do so and therefore none of these would come within the scope of the Bill.

There is no further possibility of other matters coming within the scope of the Bill as the two year statutory limit to issue proceedings under the repealed Act ended on 31 December 2014.

I table this letter. I should point out that I for one have been quite supportive of Ms Boland in her appointment as acting director, and I believe she is genuinely trying to get SafeWork SA on the right track. My comments today are not intended as a criticism of her personally, and as I understand it this situation did not occur under her watch. That said, I think she has quite a challenge on her hands in pulling that agency into line. There is no question that she has inherited a mess. How she deals with her agency going forward will be a measure of her mark.

The bottom line is that this situation should not have occurred. We should not be here today arguing about whether or not this bill will set a bad precedent, especially over an issue that forms the basis of Safe Work SA's core responsibilities. This ordeal should come as a wake-up call to SafeWork SA and not be considered a 'get out of gaol free' card. Nor is it a guarantee of my support for these sort of matters going forward. It is for the victims and their families and them alone that I support this bill. They should not be punished for the ineptitude of SafeWork SA, and it would be a great injustice to them if the matter preventing the prosecutions was not rectified. With that, I support the second reading of the bill.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (17:28): I understand that that concludes the second reading contributions on this important bill. I thank honourable members for their contributions and I thank those who have indicated their support for rectifying this issue to, potentially, bring justice to these people, one who was killed and one who was seriously injured due to poor workplace safety. I thank members. A number of issues were raised during the second reading contribution, and I am happy to address those at clause 1 in committee. With those few words I look forward to dealing with the committee stage expeditiously.

Bill read a second time.

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