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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-22 Daily Xml
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Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (21:35): I rise to speak on this bill and indicate the Labor Party will be supporting this bill. The Labor Party has long been a supporter of laws that better protect workers, including industrial manslaughter as a central plank of our election commitments at the last election. Every worker deserves to be respected, to be paid their wages and, most importantly, to get home safely at the end of the day.

While we will support this bill, we do recognise that there is almost no prospect whatsoever of it becoming law. The likelihood in the, I think, 10 sitting days that we have remaining this year of it passing the lower house is somewhere around zero per cent. Should we win the next election, which we are certainly aiming to do in March next year, Labor will commit to working closely with those who represent workers, the union movement, but will also, and importantly, work closely with those who represent employer groups and particularly training providers—groups like the MTA or the MBA that provide training, registered training organisations—to make sure that we get a bill that is workable and suits the needs of South Australia.

The Hon. I. PNEVMATIKOS (21:37): I rise today to support the Work Health and Safety (Industrial Manslaughter) Amendment Bill introduced by the Hon. Tammy Franks. I would like to begin by thanking the Hon. Tammy Franks for bringing this important legislation to this house. If a worker is killed on a worksite because of safety risks, employers should face heavy penalties, including a hefty gaol sentence and a severe fine.

We are all aware that we currently have criminal law covering some instances of death on worksites, and I know that the government will argue that criminal law already exists in this area. However, the current systems do not serve adequate justice to those workers who are killed on the job.

This will be the third bill on industrial manslaughter brought to this parliament. The first bill in 2015 was sent to a parliamentary committee, which concluded that there are adequate legal safeguards in place to address the consequences of workplace deaths and agreed that a new offence of industrial manslaughter was unnecessary. I absolutely refute the committee's findings. Although it is true that there are penalties in regard to manslaughter and murder that sometimes cover workplace deaths, there are no specific deterrence measures that would encourage employers to ensure that safety is an important priority.

The second bill, introduced in 2019 before the parliament was prorogued, is almost identical to the one before us today, with minor changes to the penalty provisions. It closely mirrors Queensland's laws that were introduced in 2017.

The bill will make it an offence for an employer or an officer of a body corporate to cause the death of a worker, in particular if:

the worker dies or is injured and later dies while carrying out work for the business or undertaking;

the employer's or officer's conduct causes the death of the worker (for example, an action or the inaction of the employer or officer substantially contributing to the death); or

the employer or officer is negligent about causing the death of the worker (for example, if the person's actions or inactions depart so far from the standard of care required).

In 2017, when the government announced that they would not act on industrial manslaughter after the report's findings, the now member for Cheltenham, who was in the role of SA Unions Secretary, said:

If you cause a death on the road, you can expect to go to jail for 15 years. If you cause a death in the workplace, under the same gross negligence or recklessness, you should get the same penalty.

All aspects of our criminal law are built on an aspect of deterrence and we've seen through countless tragedies that current sticks aren't working.

Four years on and these sentiments remain. South Australia's laws are not delivering on the expectation that, when a death occurs at work, someone is held responsible and accountable. Every other jurisdiction across Australia, except for Tasmania, has implemented severe penalties for industrial manslaughter. Yet again, South Australian workers are left behind.

Without significant deterrents, companies and employers will continue to put workers' lives at risk for the sake of cost cutting and profits. I stand in solidarity with the union movement and with workers across our state who are seeking to be better protected in their workplaces.

If an employer knew or ought reasonably to have known or was recklessly indifferent to a work safety risk that led to the death of a worker, they should face the full extent of the law. Employers should be held to the same standard as anyone else when they have caused death. This is just another example of workers being classed differently. Apparently, because you are in a workplace, you have fewer rights than others. For these reasons, I place on the record my support for this bill.

The Hon. C. BONAROS (21:42): I rise to speak on behalf of SA-Best on the Work Health and Safety (Industrial Manslaughter) Amendment Bill. As we know, the bill creates a new offence of industrial manslaughter in the Work Health and Safety Act 2012, which broadly reflects the long-held policy position of SA-Best. Indeed, it was my former boss, Nick Xenophon, who introduced the Occupational Health, Safety and Welfare (Industrial Manslaughter) Amendment Bill in this place on 8 December 2004, so there is a long history of this issue being debated in this place.

As we know, the bill introduces corporate criminal responsibility to ensure employers and all officers of the employer are held responsible for breaches of their duty of care where they know or were recklessly indifferent to an act or omission that a breach of that duty would create a substantial risk of serious harm to a person and that breach has caused the death of a person.

At present, persons conducting a business or undertaking (PCBUs) must ensure, so far as is reasonably practicable, that the health and safety of workers and others, such as clients, visitors and customers, are not to be put at risk by the work carried out by the business or undertaking. It is my understanding that South Australian employers can currently be prosecuted for workplace fatalities under general workplace safety laws, but at present there is of course no separate offence for a person or employer causing the death of a worker in this way in South Australia.

However, there is no offence at present of industrial manslaughter in South Australia. Given that all other jurisdictions, except Tasmania, have legislated workplace manslaughter offences, we are very slow off the mark to deal with this legislatively. I have no issue with there being a need to address this issue, in fact it is something we strongly support, but it is my view that there is some work that still needs to be done for us to adequately legislate industrial manslaughter offences so that employees are extended the duty of care of work they are properly owed and that employers and/or officers of employers take responsibility for the duty of care they owe to their employees.

I reiterate: it is SA-Best's view that this is an issue that we support and have supported for a long time. I will preface my comments in relation to the bill by once again confirming our support for the offence of industrial manslaughter. I am not sure that some of the issues that I will highlight now are not insurmountable. I think they are able to be overcome. But certainly the feedback that we have had, based on the advice that we have had, is that there are some issues that have given rise to concerns about the drafting that would make it unworkable and create some potentially unintended consequences.

Those issues we have sought advice on relate to the definition and clarity of many of the terms that have been used, specifically 'officer' and 'employer' which have not been defined. One of the other concerns that has been raised is the use of consistent language with other sections of the Work Health and Safety Act. The broader term, PCBU—that is, a person conducting a business or undertaking—we know covers a broad range of modern work relationships but is not used in the bill. So these are some of the questions we have for the mover and some of the issues we think need to be addressed.

It is the view of SA-Best based on that advice that the bill should specifically include PCBUs as including someone operating a business or undertaking for-profit or not-for-profit work whether alone or with other businesses. That definition of PCBU used in the Work Health and Safety Act defines that a PCBU can be an employer; a sole trader; a self-employed person; a company or corporation; an association; each partner within a partnership; local government council; state, territory or commonwealth government; certain volunteer organisations; and/or the trustee of a trust.

A self-employed person is also a PCBU and must ensure their own health and safety while at work so far as is reasonably practicable. These terms and these consequential definitions, I think, should be included in our industrial manslaughter legislation. I think it is imperative that we be clear about who is bound by the legislation and who can potentially be in breach of the legislation, given the substantial penalties able to be imposed on employers, namely 20 years' maximum imprisonment and fines of up to $13 million.

We do need laws that are powerful deterrents to employers who may be tempted to cut corners, to cut costs and to sacrifice safety as we too frequently hear in Coroner's inquests. Again, as I have prefaced before, I do not think any of these problems are such that they cannot be overcome, but concerns have been raised about the fact that the bill extends to a breach being to cause the death of a person whether or not the person was an employee of the employer and whether or not the death occurred in a workplace. That is one of the issues that I am hoping we will be able to flesh out with the Hon. Tammy Franks in relation to the bill.

It has been some years since I actively practised in law, but my concern is and my reading of this provision is that the courts could interpret it very broadly, well beyond potentially the intended scope of the bill. That is also one of the concerns that has been raised with us from our stakeholder engagement.

The bill does make it clear that section 267 of the Criminal Law Consolidation Act does not apply in respect of this offence. This is the provision that would ordinarily make a person who aids, abets, counsels or procures the commission of an offence liable to be prosecuted and punished as a principal offender, but as an employer and/or officer are not defined that provision is left wide open to interpretation and that is the gist of the concern that we have around that. The interpretation, I believe, would consume a lot of time and arguments and certainly costs in courts. As I have noted, these are the issues that we would like to flesh out further in relation to this proposal.

The first prosecution in Queensland under its newly introduced industrial manslaughter laws provides an example of how these laws should work. In June 2020, Brisbane Auto Recycling Pty Ltd was convicted and fined $3 million, while its two directors and shareholders were also convicted and given 10-month suspended custodial sentences for reckless conduct. In that case, the court found that the corporate defendant was negligent as it knew of the potential consequences of the risks, which were catastrophic.

Brisbane Auto Recycling was charged with industrial manslaughter and its two directors were charged with reckless conduct following the death of Mr Barry Willis, who was crushed between the side of his truck and a reversing forklift driven by another employee in the delivery of Brisbane Auto Recycling. It was found that they had no workplace health and safety policies in place and that directors had told staff to look after their own safety.

Workers had been at risk of serious harm for 15 months before the incident. The directors initially misled the investigators and Mr Willis's wife, but they subsequently cooperated, pleaded guilty and were convicted. Steps to lessen, minimise or remove the risk posed were not complex or overly burdensome, but these steps were not taken and ultimately they resulted in tragedy.

It has been extremely frustrating in South Australia to not have specific industrial safety laws. That is something that we have said for a long time our jurisdiction needs, particularly because we are out of step with our neighbouring jurisdictions. As members would know, and as I have said in this place time and time again, I have worked closely with many constituents, seeking justice for the death of their loved ones in the workplace. All of these family members want to ensure the same thing: it will not happen to anyone else, and that those responsible are held to account.

I have spoken to a number of them. It should come as no surprise that, obviously, I have spoken to Andrea Madeley. We all know that Andrea has effectively become the face of the campaign for industrial manslaughter following the death of her son, Daniel. I am still, to this day, chilled to recall the death of Andrea's son, Daniel, who was only 18 when he died in a workplace tragedy on 6  June 2004. As we know, the coroner found he died as a result of horrific injuries sustained when he was caught in a horizontal boring machine he was operating while employed as a first-year apprentice toolmaker by Diemould Tooling Services Pty Ltd.

The Coroner found Daniel's death was entirely preventable. He received and accepted evidence that it would not have been a difficult or unduly costly exercise to render the inherently dangerous machine that ultimately killed Daniel safe to operate. Almost two years after Daniel's death, SafeWork SA finally laid a complaint against Diemould and on 23 April 2009—almost five years after Daniel's death—Diemould pleaded guilty to causing Daniel's death.

The company was convicted and fined $72,000, which included a 10 per cent discount for pleading guilty. The Coroner found it was six years after Daniel's death before a compliance project was instituted by SafeWork SA in relation to horizontal boring machines such as the one that killed Daniel. To this day, I am saddened by the negligent actions and failures of the employer, and indeed SafeWork SA in this instance, that led to the entirely avoidable death of Daniel, a beautiful young man with all the potential in the world ahead of him.

The other case that I have detailed knowledge of, which I have spoken of in this place time and again, is the case of Jack Salvemini who was crushed to death in 2005 after he got tangled in a fishing net while commercial fishing in the Great Australian Bight. As we all know, there was no Coroner's inquest held into that case, but the company was subsequently found guilty of breaching workplace safety laws and fined $70,000 in the Industrial Court.

Seven years after Jack's death, the skipper of that boat, Arthur Markellos, avoided prosecution and had a $17,000 fine overturned after the Supreme Court dismissed an appeal by SafeWork SA. We all know that Jack's father, Lee, says he will never give up seeking justice for Jack. Lee strongly supports legislation to close the loopholes in workplace safety laws so that other families can avoid going through what his family has gone through.

Fourteen workers were fatally injured at work in South Australia last year. Serious injuries sustained at work are in the tens of thousands. More recently, I have worked with a family who I will not name but whose loss is currently the subject of coronial inquiries. I am hopeful, and they are certainly very hopeful, that that case will result in a coronial inquest to further highlight the issue of avoidable deaths in the workplace.

The majority of these fatalities bar the last one were in three industries, with machinery operators and drivers being the deadliest occupations. How many of these constituted industrial are difficult to ascertain. What is patently obvious is that many if not all of them were avoidable, and we need legislation to make it an offence in line with industrial manslaughter, and that the penalties that apply currently that I have outlined today are woefully inadequate when we are talking about a preventable tragedy that results in the loss of life.

Absolutely nobody should get killed or seriously injured at work, and no employer or officer responsible for the death should be able to shirk their responsibility and obligation to ensure work health and safety.

The Hon. R.I. LUCAS (Treasurer) (21:57): The government's position in relation to industrial manslaughter bills has been consistent for a number of years, in that we oppose them. I do note that the Hon. Ms Bonaros's contribution, however, from someone who is a strong supporter, raises very significant questions about the drafting of this particular attempt at introducing industrial manslaughter. Given the perspective from where she comes, I think it behoves those who are supporting the current drafting to consider the views that the Hon. Ms Bonaros has put.

I will not repeat some of the issues that have been raised in relation to the drafting, but the Hon. Ms Bonaros's questions merit reconsideration and review by those who are proposing to support the current drafting of this particular piece of legislation because the Hon. Ms Bonaros certainly highlights some potential significant difficulties in terms of legal interpretation of this law should it pass the parliament. The Hon. Ms Bonaros and the government come at this legislation from different directions, we acknowledge that, nevertheless, there is a shared concern about the current drafting of this particular proposal.

The government's position has been pretty clear for some time; that is, the current law in relation to manslaughter adequately criminalises manslaughter, including where it occurs as a result of a work injury. We have already demonstrated in South Australia how it does because the sole director of a trucking company, Mr Peter Colbert, was convicted of manslaughter by gross negligence in 2015 for the death of a worker who died in 2014 when the truck he was driving, owned by the company, crashed due to brake failure.

The court transcripts and evidence demonstrate that Mr Colbert knew of the faulty brakes. There had been a near miss prior to the accident, and Mr Colbert was found not to have properly maintained the brakes of that particular vehicle. Mr Colbert was sentenced to 12 years' imprisonment under our existing manslaughter laws, so it is a clear example that manslaughter laws do apply in the workplace, in this case the workplace of someone who was driving a truck on a public road.

Interestingly, this proposal would actually reduce the term of imprisonment for such an offence. The maximum term of imprisonment for this particular industrial manslaughter in the bill is 20 years' imprisonment, whereas the maximum penalty for manslaughter is actually life imprisonment. So what this bill is actually doing is reducing the potential maximum penalty for industrial manslaughter from what is currently potentially life imprisonment to a still not insignificant 20 years.

That seems an ironic contribution to the debate in terms of work health and safety that currently for someone such as in the case that has already been successfully prosecuted, and even on appeal was sustained, the potential maximum sentence under this is to be reduced by the supporters of this legislation.

I guess that is for those who support the legislation to defend why they would seek to reduce the potential gaol term for someone who might be found guilty in the most horrendous of potential circumstances in terms of an employer and gross negligence, and clearly in a range of circumstances where everyone might think that if it caused the death of a worker on their worksite, under the current law, the penalty can be life imprisonment and under the proposed legislation that is to be reduced to a maximum penalty of 20 years.

My advice is that some of the claims in this debate are that all jurisdictions—I think one member indicated with the exception of Tasmania—have introduced some version of industrial manslaughter legislation. I am advised that the New South Wales government declined to insert a new offence of industrial manslaughter into their act and instead amended division 5 of the New South Wales Work Health and Safety Act to note, and I quote:

In certain circumstances, the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act.

I am advised the Crimes Act 1900 New South Wales is the equivalent of the Criminal Law Consolidation Act 1935. My advice, as I said, in relation to New South Wales, is that it is a very similar position to the position of the South Australian government. The government's views on this proposal are well established. I do not intend to repeat what I have said on three or four previous occasions; however, I do again note the contribution from the Hon. Ms Bonaros and indicate that I think it is worthy of close consideration and review by those who are proposing to support the current drafting of this bill.

The Hon. T.A. FRANKS (22:03): Thank you to all those who have made a contribution on this bill. In just over a week, we will be marking the October Labour Day public holiday in our state and commemorating the achievements of the Australian labour movement (that is labour with a 'u') and in particular the movement for eight hours work, eight hours rest and eight hours play. What happens when someone does not come home from those eight hours' work?

It is clear that our current laws are insufficient to address such a tragic consequence. I reflect on the fact that this is not the first time that such legislation has been brought before this parliament. It is not even the first time that I have brought this legislation before this parliament, but I want to reflect on some changes that we have seen around the nation since I first brought a similar bill forward.

We have been told many things over the years—and certainly tonight—when it comes to this parliament's opposition to the absolute bare minimum to protect workers in our state by introducing industrial manslaughter laws. The key one we have heard is that there is no need for this legislation, that the field is already covered and that, because other states did not have the legislation at the time, there was no need for South Australia to lead.

We have known for quite a long time that this is not actually the case. However, what is really new is that most of the country has now moved not only to recognise industrial manslaughter properly in legislation but to apply serious penalties to it. Industrial workplace manslaughter laws are now in place in New South Wales, in Victoria, in Queensland, in the ACT, in the Northern Territory and in Western Australia. South Australia and Tasmania are the last remaining jurisdictions without such laws.

We know these laws are needed and we know they work. The first industrial manslaughter convictions in Australia were handed down in Queensland on 11 June 2020, convicting Brisbane Auto Recycling Pty Ltd of industrial manslaughter and imposing a fine of $3 million. The two directors both also received a sentence of 10 months' imprisonment, suspended for 20 months. This conviction was the result of a worker being struck by a forklift being reversed by an unlicensed and inexperienced worker. The struck worker died in hospital eight days later.

As well, we have seen the final report of the Review of the Model Work Health and Safety Laws released in December 2018, following on from the agreement in 2008, where we agreed to harmonise our work health and safety laws across all states and territories. I remember the lengthy debate in this place—indeed, the delayed debate in this place—around that legislation. Critically, the report states:

I am recommending a new offence of industrial manslaughter be included in the model WHS laws. The growing public debate about including an offence of industrial manslaughter in the model WHS laws was reflected in consultations for this review. I consider that this new offence is required to address increasing community concerns that there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care that leads to a workplace death.

It is also required to address the limitations of the criminal law when dealing with breaches of the WHS duties. More broadly, the ACT and Queensland have already introduced industrial manslaughter provisions, with other jurisdictions considering it, and so this new offence also aims to enhance and maintain harmonisation of the WHS laws.

As I said, we have seen industrial manslaughter laws put in place in New South Wales, Victoria, the Northern Territory and recently in Western Australia.

I remind members, as well, that South Australia is a signatory to the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, which is the agreement under which we agreed to harmonise our work health and safety laws with other states. The report also stated:

Advocates for the inclusion of an industrial manslaughter offence believe such change is long overdue and reflects strong public sentiment. The ACTU supports this view and submits that 'the introduction of a new offence of industrial manslaughter will provide a strong incentive to businesses with poor practices to improve'.

The Senate inquiry into industrial deaths recommended that the model WHS laws be amended to provide for an industrial manslaughter offence. It considered serious consequences were warranted for organisations whose negligent actions result in the death of a worker or bystander—

to answer the Hon. Connie Bonaros's question—

and the offence would provide a strong and appropriate deterrent across the entire WHS regime.

I also want to share one final quote from that report where discusses the case for change:

Consultations for this review (mirrored in submissions to the Senate inquiry into industrial deaths) revealed a clear and increasing view amongst a great many in the community that there should be an outcome-based offence in the model WHS laws where the death of another person occurs as a result of the gross negligence of either an individual or an organisation. The strong community expectation is that it should be possible to prosecute for the death of a person under a statutory offence of industrial manslaughter in the model WHS laws.

As discussed, the most commonly cited reason for rejecting an industrial manslaughter offence during consultations was that the current criminal law offences in each jurisdiction are sufficient for dealing with workplace fatalities. Opponents of change pointed to the potential for problematic overlap, with a jurisdiction's criminal law if an industrial manslaughter offence is introduced in the model [Work Health and Safety] Act. The argument is less convincing given some states and territories either have or are exploring the introduction of an industrial manslaughter offence to reflect what they perceive as the community will and to deal with the limitations of the criminal law in prosecuting breaches resulting in workplace death. At a practical level, the absence of an industrial manslaughter offence in the model [Work Health and Safety] Act also increases the potential for inconsistency as jurisdictions successively introduce their own offence into their [Work Health and Safety] or other legislation.

Polling following the release of that report found that the majority of Australians want these new laws, which would see employers who are responsible for workplace deaths held accountable and ultimately be able to be sent to gaol. The bill is a long overdue measure. It seeks to capture the minority—and I do stress, the absolute minority—of employers who cruelly put workers at unnecessary risk.

South Australian workers have waited long enough for this protection. This is life-saving legislation. Every single workplace death is significant and an avoidable tragedy that will affect the lives of so many others. Everyone deserves to come home safe from work. We must ensure that employers have a genuine incentive to provide a safe workplace and to prevent them from taking shortcuts that endanger workers' lives.

This bill has sat on the Notice Paper for just over a year. This is not the first time I drew it to a vote. Indeed, I drew it to a vote and members said they were not ready to debate it, so I drew it to a vote again just over a month ago, and COVID provisions affected it coming to a vote. This is now the third time I have called on members to alert them that this bill will go to a vote. I commend the ALP for their support of this bill tonight and their commitment, should they take government next year, that they will seek to introduce industrial manslaughter legislation.

I am disappointed that concerns are raised at the final hours about wording and about interpretation that have not been raised with my office prior to tonight. I think if members have amendments that they wish to place to this bill then they should have circulated them, and they should circulate them. I will be taking this to a second reading, and I will stop at clause 1 to allow that conversation to happen. With those few words, I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I acknowledge what the Hon. Tammy Franks has said in relation to the comments we have made tonight, but, as I said during my second reading contribution, none of those issues cannot be overcome. If it is the mover's intention to adjourn the debate tonight to deal with those, they are discussions that we are certainly willing to have with the mover and consider in relation to the issues that we have raised on the record this evening.

The Hon. T.A. FRANKS: I indicate that I advise that SA-Best should circulate amendments to the bill if they have amendments to the bill, and then we will discuss and negotiate on those.

The CHAIR: Does the honourable member wish to report progress, or does she want me to deal with clause 1?

The Hon. T.A. FRANKS: If there are no clause 1 concerns, and we have an agreement with the principles of the bill, I cannot see that there is going to be an amendment at clause 1. The earliest amendment would be at clause 2. I would like to pass clause 1.

Clause passed.

Progress reported; committee to sit again.

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