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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-13 Daily Xml
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Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: A number of issues were raised during the second reading debate that I now have responses for. I want to take the opportunity at clause 1 to put that information on the record, but I have no intention of proceeding with the rest of the committee stage at this particular point in time.

In relation to some of the questions that were raised in this chamber and also in the other place, the bill seeks to allow the minister to extend the time limit to issue proceedings in two cases under the Work Health and Safety Act 2012. One case involved the death of a worker and the other involved serious injuries to another.

I emphasise again that the advice received is that only two cases fall within the scope of this bill. The bill has been drafted to capture only those matters where the documents initiating proceedings under section 58(7) of the Occupational Health, Safety and Welfare Act were signed by the wrong person and were subsequently withdrawn. I am advised that only two matters meet those requirements.

The reason we are in this position is that a SafeWork SA officer signed the original complaints to initiate proceedings in these matters and it was subsequently discovered that this officer did not have the legal authority to do so. The officer signed the complaints in good faith. It was not a malevolent act: it was human error. They had the authority under the new work health and safety laws but not under the old laws, and the two matters within the scope of this bill fell under the old laws.

However, more significant is the fact that the error could not be fixed because both cases had run out of time. The two-year time limit to initiate proceedings had run its course. This is not the first time that SafeWork SA has run its cases so close to the two-year time limit and it continues to be unacceptable. SafeWork SA is on notice to ensure that this obviously never happens again. There is no excuse for taking two years to file complaints in work health and safety prosecutions.

I am advised that SafeWork SA has completely overhauled its management of its investigation and prosecution files. A new investigation management team has been recruited and the team is also recruiting new staff with specialist investigation skills. Active management of investigation and prosecution files has been strictly formalised with weekly meetings between SafeWork SA's Acting Executive Director, Director of Compliance and Enforcement, and the Manager of Investigations to ensure all files are progressing to a tight time frame.

Investigation plans with clear time frames are monitored regularly between the investigator and their manager. Regular file management meetings have also been set up between senior management at SafeWork SA and the Crown Solicitor's Office to progress prosecution files efficiently when briefs move from SafeWork SA to that office.

A number of key performance indicators have been introduced, including the expectation that 80 per cent of investigation files will be completed within six months and 100 per cent completed within nine months. Performance against these KPIs will be actively managed and individual investigators will be held accountable to ensure that these targets are met.

Some have questioned the issue of fairness in extending the time limit on the businesses concerned. The courts will be able to take into account any disadvantage to the defendants caused by the extension of time. Any court proceedings will allow for a full consideration of all matters relevant to ensuring the interests of justice are served.

The Deputy Leader of the Opposition in another place asked if there had been any compensation paid to the families of the injured workers. Claims for compensation under the Victims of Crime Act 2001 are rare for matters prosecuted by SafeWork SA. This is because workers generally receive workers compensation for injuries sustained at work. Section 17 of the Victims of Crime Act precludes claims where the injury arose from a breach of a statutory duty by an employer and the worker has received, or is entitled to, workers compensation payments.

However, the issue before us today is that it is in the public interest to hold to account employers who may have dangerous workplaces. It is beholden on every single one of us here to uphold that. The government has taken this action to allow two families affected directly by this error to have their day in court. The Deputy Premier made a commitment to the families that he would do his best to overcome the problem, and this bill presents the only solution. It is not acceptable that two workers—one injured and one killed—and their families should not have their grievance explored in court. The facts of these matters should be tested in court.

In conclusion, I reinforce the intention of this bill to address two specific cases—and two only—which had serious consequences for workers and their families. It has been drafted with these limitations in mind. It is in the public interest that these matters are heard and it is in the workers' and families' interest that their experience is validated and that they are supported by the South Australian community by having their day in court. I urge all members to continue their support for this bill.

Clause passed.

Progress reported; committee to sit again.

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