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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-09-14 Daily Xml
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Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 September 2023.)

The Hon. C. BONAROS (15:27): I rise to speak on behalf of SA-Best on the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. According to Safe Work Australia, 104 Australian workers have been killed at work this year. They include 35 transport, postal and warehousing workers; 23 construction workers; 12 working in agriculture, forestry and fisheries; 10 in public administration and safety; and seven in the mining industry.

Given the industries represented in the fatality toll, it is not surprising that males are most likely to die at work, particularly those aged between 45 and 54 years. The statistics also tell us a worker is most likely to die in a vehicle, then hit by a moving object, falling from a height, hit by a falling object, or trapped by a moving machine.

In South Australia, there have been 286 workplace deaths recorded since 2003. There has of course been a national push for the introduction of industrial manslaughter in recent years, with all jurisdictions but Tasmania either passing or committing to pass such legislation. I understand there have been a small handful of convictions and a number of other cases which have not proceeded to trial.

In December 2018, Ms Marie Boland provided Safe Work Australia with her final report of the first national review of the model WHS laws, in which she recommended the model act be amended to provide for a new offence of industrial manslaughter. At a work health and safety ministers' meeting in February of this year, commonwealth, state and territory ministers met to discuss and advance nationally important issues, including industrial manslaughter. By majority, the ministers agreed to adopt industrial manslaughter into the model WHS laws but left it to each jurisdiction to flesh out what that would look like.

The model penalty, which is prescribed in law, is $18 million for a body corporate and 20  years' imprisonment for an individual, which is reflected in this bill before us. South Australia, along with those other jurisdictions, obviously is part of the jurisdictions that signed up to this agreement to implement these laws. So it now comes down to a conversation about the best model. There is disharmony between the regimes, and there does not appear to be any plans to adopt uniform laws across the nation, at least not in the short term anyway.

There have been a number of iterations of the industrial manslaughter bill for the consideration of the South Australian parliament over the years. Based on some of the speeches made during the last session, it might come as some surprise to members on government benches to know that this is in fact not the first but the seventh attempt to implement industrial manslaughter laws in South Australia. Nick Xenophon introduced a bill in 2004. The Hon. Tammy Franks followed in 2010, 2015, 2019, 2020 and 2022. Of course, the legislative regime has changed significantly since the first attempt in 2004 and a number of other subsequent attempts thereafter that I have just referred to.

I have had the fortune—or misfortune perhaps—of having been here when those national work health and safety laws were adopted by South Australia. One of the benefits of having been here for this long is that I also have, as members in this place would have, knowledge of the debates that took place around those changes, those laws that were introduced and the implications that they had for South Australia, so it is not the same landscape as it was when industrial manslaughter was first introduced in this state.

I have worked personally and closely with Andrea Madeley, who has been referred to during this debate, for many years on this issue. I would like to take this opportunity to pay tribute to Andrea for all she has done for the families who have been left behind. I have not seen a person other than Andrea be able to achieve what she has achieved in the face of absolute tragedy for her and her family.

I think it is worth reminding members who do not know that Andrea's son died in a horrific workplace accident in June 2004. Daniel—or Danny, as he was lovingly known—was working as an apprentice toolmaker and was just 18 years young. Andrea represented herself in the inquest of her son's death, and we were with her for the entire duration of that inquest. I, as a staff member for Nick Xenophon at the time, spent days on end watching her and have nothing but sheer admiration for the way that she was able to ensure that, despite having lost the love of her life, she would do her level best to ensure that no other person suffered the same fate.

Andrea went on to become a lawyer and is now practising in law and doing an exceptional job; she has made it her life's mission. She has established the Voice of Industrial Death and made it her life's mission to advocate for others who have experienced the horrors she has. She has done everything in her power to prevent other families from going through the hell that she has.

I talked to Andrea earlier today. I hope she does not mind me saying this, but the one thing I can recall vividly in my mind from every day that I sat in the inquest with her was the clear plastic bag that sat by the feet of counsel assisting with the blue shredded coat that Daniel was wearing. There were bloodstains on it. It sat there every day as a constant reminder of what Andrea was doing in that inquest. I cannot underestimate what she has contributed to South Australia in this respect. Those memories are etched in her mind and I think in the mind of everyone who was in that courtroom for the duration of that inquest.

Andrea has a seat at the table of the newly established Stakeholder Advisory Committee, which I understand will be prescribed at a later date, and I commend the Attorney's department for making such a sound decision in selecting her for that role.

I am going to speak about this bill in some detail because I think it warrants it, given the nature of the debate that we are having. My comments about the detail in this bill are in absolutely no way intended to diminish the absolute heartache caused by workplace death. It is the right of families to have their loved one's death treated appropriately at law. My advocacy in this place over years for families who have lost loved ones speaks for itself, as does that of others in this place, and I stand by that firmly and resolutely.

Workers deserve to go home from work safely each and every day, and employers who blatantly neglect and disregard the safety of those workers ought to be responsible. There is absolutely no question about that. When we are considering these laws, our job as legislators is to ensure that we subject them to the level of scrutiny that they deserve and this is a perfect example of the sort of law that deserves all the attention and scrutiny of this chamber.

My starting point with this legislation is that in my view, and I am sure in the view of many legal commentators, it is not drafted particularly well—some would say it is clunky—because we have adopted national laws. They are not our laws. They are not drafted here by parliamentary counsel. They are not drafted with the same language and drafting style that we would normally expect in laws because we have adopted national laws, and they are different in drafting styles. That is the first issue. In this instance, we simply do not know what the outcome of the wording will be in this legislation until the courts start to interpret it. As I said in my opening, we have already seen a small number of cases flowing through other jurisdictions.

Until the courts start to interpret what is going to pass through this place, as with all new laws, we simply do not know what their effect will be. For instance, when I first looked at this bill my first question at the briefing was: what does 'such a great falling short of the standard of care' mean? I do not know the answer to that because we have adopted the wording of another jurisdiction. Until the courts here provide an answer to that question, we will not know what that means even if it is a codified test in the commonwealth.

Granted, we will have the benefit of case law arising from those other jurisdictions I have referred to, regardless of the fact that everyone has taken a slightly different approach. We talk about national consistency, but the reality is we do have varying degrees of consistency in this space across the nation but we really do not know what the outcome will be in terms of these laws.

Can I suggest something better? We have access to parliamentary counsel. I have certainly been back and forth trying to think of how we can improve this, but I know I cannot because I do not know whether what is being proposed is going to have the intended effect or what better alternative there is. We simply do not know.

The same can be said for the concepts of gross negligence and recklessness, and I will focus on these a bit. Negligence, as we know, is not a criminal concept; it is a civil concept that we are applying to criminal matters in this bill. That is not to say we have not done that before, but generally speaking negligence is well known and interpreted as a civil concept, and in this bill we are adopting that in criminal matters.

Negligence has different thresholds in civil law. As I said, we are not talking about civil laws in this bill. We are talking about criminal laws. Industrial manslaughter will work differently from the well-established and understood interpretations and principles the common law courts apply in these jurisdictions. What we do know is that both gross negligence and recklessness offences carry with them a new mental element, or a qualitative element that has not existed prior in the work health and safety space. How that is interpreted also remains to be seen.

I have heard the government's justifications for the inclusion of gross negligence and the arguments both for and against. I have to say, from where I sit, if the point of introducing this legislation is to elevate industrial manslaughter as the extreme end of offending that carries more significant penalties, because of the disregard for someone's safety at work, than anything else already applicable under the existing framework, and warranted where a business has acted with such a blatant disregard for a worker's safety, then the insertion of recklessness is the concept that I would be questioning.

In other words, if industrial manslaughter is supposed to reflect existing criminal manslaughter laws then recklessness should not feature in this bill. To my mind, its incorporation into this bill has the very real possibility of diminishing and undermining the offence because we are in effect lowering the threshold of a criminal manslaughter charge, according to some legal commentators. We are not mirroring it; we are lowering it. I think that is the point that the Law Society conveyed to us in correspondence when they considered the relevant criminal threshold for the proposed industrial manslaughter offence. They say:

The proposed offence comprises two limbs; being either 'gross negligence' or 'recklessness'. The Criminal Law Committee expressed concern at the reference to recklessness, noting that its imposition may have the effect of lowering the threshold for manslaughter, while also noting the penalty proposed is up to 20 years' imprisonment.

Those are not just views that I have concerns about; they are views that have been the subject of some legal scrutiny. The submission goes on to provide:

The concept of recklessness is already utilised within the [WHS Act] and has a well-established and understood meaning in the criminal law. Members of the Criminal Law Committee remained of the view that South Australia's workplace safety laws already adequately penalise the conduct as is, with offences of causing harm by failing to comply with a duty in Part 2 Division 5 of the Act covering lesser offences and offences of gross negligence already being captured by the existing manslaughter offence in the [CLCA].

I have no comment or position with respect to this last point, but I do agree that the criminal threshold in the proposed bill as drafted raises the potential risk of creating confusion and capturing actions that should not be regarded as manslaughter. They are the concerns of the Law Society, if indeed the intent of the bill is to treat industrial manslaughter like criminal manslaughter.

It is worth noting that normal criminal manslaughter and industrial manslaughter will be the subject of two very different investigating bodies. SafeWork SA is the regulatory body for industrial manslaughter under this bill, as it is for all work health and safety matters in this state, before SAPOL. It is also worth noting that there are no impediments to criminal charges for workplace accidents or deaths right now, where they are warranted.

So at present, you could very well end up with a charge of manslaughter or some other criminal offence, depending on the circumstances of death. That is a starting point and from my view a good indication of all the considerations that we ought to be thrashing out in detail as part of this debate in this chamber before we get to the remainder of the bill.

The next issue worth noting is that, unlike criminal manslaughter, industrial manslaughter will exist in the legislative framework that is duty based, namely, the Work Health and Safety Act, which is as we know duty based. That is very different from a criminal code. The legislation, and sections 18 and 19 in particular, impose a series of duties on employers and employees and the offences under the act for those employers, for the offices for employees, for PCBUs, are rooted in the notion that you have to meet a series of duties and in the absence of meeting those duties at any point along the line you are committing an offence. It is not one duty—it is a series of duties, a continuum of interrelated duties relating to work health and safety.

Appropriate safety plans are one in the list of many duties that have to be met. This is very different from a criminal charge of manslaughter. There are no duties that apply, obviously, in a criminal charge of manslaughter, but in this instance there is a series of continuous duties that you are required to comply with, that you are required to meet, and if at any point you breach one of those duties you are in breach of the act and subject to criminal penalty.

In the simplest of terms, if you do not discharge one of those duties you have committed an offence, the severity of which will depend on the nature of the breach itself, and that is very different from the thresholds that apply to criminal manslaughter. That is where things can start to get a little murky.

Carriage and oversight of the WHS legislation falls within the remit of SafeWork SA, and if that instils any confidence in the Attorney-General then he is a better person than me. I say that respectfully towards the SafeWork SA agency and the individuals who work there. I am not sure at times how they are expected to carry out the work they do, but I know they have been the subject of intense scrutiny, certainly in this place by many of us over a long period of time, and not without good reason.

They are and ought to be the regulator in this space—there is no question about that. They are also responsible for providing advice and education on all things work health and safety related. They provide licensing and registration for workers and plant. They investigate workplace incidents, and they are responsible for enforcing work health and safety laws. They are responsible for every single worksite in South Australia—every single one.

Of course, myriad issues fall within those responsibilities—safety is but one. It is also dependent on the nature of the workplace: is it a high-risk workplace, is it a low-risk workplace, is it a medium-risk workplace? It is a long, exhaustive list. The inspectorate responsible for that long and exhaustive list is extraordinarily small.

We had witnesses appear before the wage theft committee, another issue they are responsible for, speaking to the numbers they had in their inspectorate and it was something like 77 FTE inspectors responsible for over 150,000 small businesses in South Australia. That is not the big ones, that is just the small businesses in South Australia. There are about 91 people, I am told, in the compliance unit all up, including investigators, inspectors, technical leaders, and so forth. I add to that the workplaces more likely to warrant more attention, the ones the subject of statistics I read at the outset, and that is a huge cohort over which 91 individuals have oversight and responsibility. Therein lies the first problem we have to deal with when considering this bill.

To put that into perspective—and I will use PIRSA as an example—PIRSA has a dedicated inspectorate of something like 50 inspectors who deal with compliance in the fishing industry. There would be similar numbers when it comes to NRM, when it comes to agriculture, when it comes to mining, and they only deal with compliance about the activity. They do not deal with work health and safety for those industries, they just ensure that the individuals working in those industries are complying with the rules that apply to them. It is SafeWork SA that has oversight of those industries as well when it comes to work health and safety.

It really beggars belief that we have so few inspectors in SafeWork SA, given their responsibilities when it comes to safety. It beggars belief, from where I sit, that we would consider a piece of legislation as significant as this in the absence of a review of the statutory obligations, the roles, the responsibilities and guidelines applicable to SafeWork SA in conducting their functions when it comes to work health and safety.

There is no question—no question whatsoever—that the statutory framework for SafeWork SA is in dire need of review. I am not just talking about things we have referred to as botched investigations, things that have resulted in external reviews, reviews that have been instigated by the Attorney or the Minister for Industrial Relations, but they are good examples. I am talking about how they fulfil their responsibilities when it comes to this particular piece of legislation, and the changes needed to their regulatory framework to ensure that there is some nexus, some connection, between the duties on businesses and the body responsible for regulating and overseeing them.

What on earth do you expect 91 people to do first? That is my first question. How do you respond to critical incidents? How do they possibly deal with all the breaches? How do they have time to educate and train individual businesses? How many are they offering their services to? The answer is that we are asking them to spread themselves thinly across a minimum of 150,000 small businesses in this state. Add to that the high-risk industries, the larger based industries, the medium-risk industries, the low-risk industries, and we know that number is extraordinarily high.

When it comes to compliance with these laws, with the national laws we have adopted and now with industrial manslaughter, of course the responsibility shifts to the business. In theory I could ask SafeWork SA for guidance, for assistance, for education, for audits, but in practice we know it is absolutely impossible for them to undertake those roles to the extent they ought to. So it falls to businesses, who try to do that as best they can and with the resources they have available to them.

It is the industry groups that fill the gaps, that try to fill in compliance gaps by preparing guidance notes, by coming up with templates for those businesses to rely on to ensure they are complying. However, when things go wrong, as inevitably they do—and I am not talking about the cases where things go wrong because someone has blatantly disregarded the work health and safety of their workers, I am talking about when things go wrong as they sometimes do—it is SafeWork that turns up at their door.

My point, if I have not made it already, is that if you are going to adopt these laws—and that has already been agreed to and put in place some years ago—if you are going to review those laws and adopt industrial manslaughter—again, something that has been signed off by all the states and agreed to nationally and a requirement for South Australia under those agreements—it follows logically, it has to follow logically, that our regulators' legislative framework mirrors the duties and responsibilities that those businesses are now subjected to. The frank reality is that at the moment they do not. Anything short of that is unacceptable. Regardless of the passage of this bill or not—and it will pass, and we know that for all the reasons I have articulated—anything short of that is completely and utterly unacceptable and that is where the frustration of businesses lies.

I will turn now to high-risk industries and the role that SafeWork SA plays there. There is no question that there are employers out there whose industries are by their very definition high risk. That is the work they do on a daily basis, and, in many respects, they simply do not fit the duty base model they must comply with by design. They carry inherent risks, and they are high. They will do everything to mitigate those risks. They will bring in consultants. They will call in SafeWork SA and say, 'What do we need to do?' They will pay hundreds of thousands of dollars to ensure they have done their level best to mitigate the risks of a high-risk industry that is duty bound under work health and safety laws.

But the risks are what they are. It is a high-risk industry, so they are there regardless. They cannot be ameliorated in every single way. That is the nature of a high-risk industry. That is why companies pay huge amounts of money for consultants to come in and implement plans to ameliorate, as best they can, the risks they know exist by the very definition of the nature of the work they undertake to prevent one of those risks turning into an incident that results in injury or death.

They operate under a framework that says, if you do A, B, C, D and E, you will not be charged with an offence. If you do A, B, C, D and E, industrial manslaughter will not apply to you. That is cold comfort to those employers, and I am not talking about employers who show a blatant disregard for their employees. I am talking about the ones who do their level best to prevent accidents and incidents but know they are high risk and cannot prevent everything.

They do not buy, 'Don't worry, these laws won't impact you,' because they know from experience, sometimes firsthand, that SafeWork SA will do its investigation and then say, 'We will leave this to the courts to decide.' We know what then results. It is not a matter of just saying, 'Well, the courts will decide.' That ties that business up, obviously, in protracted legal arguments for a long period of time and has additional costs and the rest of it and that is despite the fact that they have done everything to try to ameliorate or reduce as far as possible a risk that is inherent to their business.

I have had discussions with the Attorney specifically and his staff about the auditing processes that underpin these laws. As I said before, some of us are fortunate or unfortunate enough to have been here when those national laws were first adopted. The Hon. Mr Wortley certainly was, and I remember long and protracted discussions with him and Ms Boland about this. They would, we were told, undertake audits. They would, we were told, implement templates that could be provided to businesses. They would, we were told, go onto sites to help businesses identify risks.

But what they will never do, at any point in time or on an ongoing basis, is sign off on a workplace's plans that they have ultimately implemented. That cannot be done because it would either expose SafeWork SA to responsibility they do not want or it would serve no purpose because if it did not offer immunity from prosecution and it would inevitably result in legal argument about what the purpose of that document was.

I have gone around and around for the last few days trying to find a way of dealing with this because I am not convinced by the sum of the responses put to me by the Attorney's office that there is not a way around this. I do think it is more reason for that statutory review of SafeWork SA's laws, but I accept it is problematic. I accept the argument that potentially it would apply at a point in time and six months later that employer may have let things run into the ground, presenting their workers to risks. I accept also that it could be done on an ongoing basis, like many other requirements are done, and is not necessarily limited to a point in time, as was put to me.

The point that I will make is that that advice is further reason for a review of the SafeWork SA legislative framework to ensure that it has some semblance of connection to the sorts of laws that we have adopted under those national agreements. There has to be some guidance for businesses above and beyond what is available. We cannot continue to implement laws and bills and not review the regulatory framework and functions of SafeWork SA to ensure that their obligations mirror those national laws. I think I have pressed that point enough, but I will certainly have some questions for the minister on those issues when we get into the committee stage of the debate.

I do note that on the issue of negligence and recklessness also there are, when we talk about national consistency, two models. One is that WA appears to have gone it alone—which is not news to many of us in here; they often choose to do that—in having only adopted recklessness. Other states have adopted either gross negligence or gross negligence and recklessness. But to suggest that we have uniform national consistency I think, with respect, is a bit of a stretch. We have some jurisdictions that have talked about the risk of death and other jurisdictions that have talked about the risk of death, serious injury or harm in some of their definitions. I foreshadow I will be moving an amendment in that respect.

I think the point I am trying to make here is that if you want to elevate industrial manslaughter—and it will not be the equivalent of manslaughter, because they simply by definition are not the same thing, but if you are treating it in that vein—then reducing it to something less than death, even though I understand the government's intent, takes away, diminishes, dilutes what you are trying to achieve. It is for that reason—and I will speak to that further when we get to the amendment—that I will be seeking to do that.

I will also be moving an amendment that deals with another issue that has arisen time and again when it comes to dealing with SafeWork SA, one the Attorney should be particularly familiar with in the form of section 271. That is a confidentiality of information provision, and it is one that stems from commonwealth requirements that are applicable to all states, but of course, as we have seen in a number of cases in South Australia, it has been dubbed the secrecy provision.

We have a case currently before the Coroners Court where a family have been unable to access information because of those provisions. The Attorney would be familiar with the issue being raised with him in the context of the Gayle Woodford matter and indeed other matters where criticisms have been made that section 271 has been used beyond the scope that was intended simply by virtue of the fact that it applies to information that is otherwise confidential.

I will also note at this stage that I will be seeking from the Attorney some clarification when it comes to volunteers—members who serve on boards on a volunteer basis—and the level of culpability they face under this bill and the extent of the reach of the exemptions that exist in the bill. I will also ask the Attorney to clarify the situation around when the Crown is the body corporate in question and what happens when a matter is directed to the minister responsible, in terms of making a determination as to whether it should proceed to a charge of industrial manslaughter.

I raise these issues because they are important issues. If we are going to do what we have agreed to nationally and what we have signed up to do, then these are all things that warrant scrutiny. Right now, what we have done is we have signed up to a scheme that says we are going to implement industrial manslaughter. The feds have said there will be national laws around industrial manslaughter. We have not sat down and drafted our own; we have followed bits of pieces of what other states are doing, and we are hoping that it will work out alright. That is my fundamental issue with the way that we have approached this.

We could have attempted to draft a bill here that fleshed out all of these issues, but I also accept that we do not know what the interpretations are going to be. The only thing that this government had was a policy of supporting industrial manslaughter. This is nothing new to the rest of us in this chamber, by the way—nothing groundbreaking or earth-shattering. I am sure the Hon. Tammy Franks will attest to that. It might have come as a surprise to some members of the government's backbench and front bench, given the history in this place, but it was nothing new to many of us in here.

You have adopted a policy. You have gone with the model that, granted, is suggested by Ms Boland in her review and is also the one that has the most coverage in terms of the other states, but there are questions that need to be asked about how we are going to deal with that here. There are questions as to why you went with one model versus another model.

There are legitimate questions that the Law Society has raised around recklessness and the consideration that has been given to those. I accept also that the Attorney is not in a place to answer a lot of those questions, because we simply do not know. Like I said at the outset, we simply do not know what the outcome is going to be, because nothing has been tried and tested at this stage.

Another point that I will cover at this stage is the low number of prosecutions, and that is something every stakeholder will refer to. Up until this point, there has been a very low number of prosecutions. That is because of the current laws and because the Crown Solicitor's Office pretty much expects you to deliver something that is foolproof and most likely to result in a conviction before they will even look at it.

Again, I go back to the point that this also ties back to the regulatory framework and the regulatory regime that is supposed to have oversight of this jurisdiction. Yes, there may be a low number of prosecutions, but there might be very good reason for that. I do not think, by any stretch of the imagination, that introducing this bill is going to fix that in any way—certainly not in the short term.

I am pretty certain we are going to be back here looking at this legislation again at some point in the future, once we do have decisions that are handed down. That is not without precedent. We have done that plenty of times where we have had to come back to this place and reconsider legislation because of the interpretations that have been imposed by the courts—none of which, at this stage, have been tested. It is good that we will be able to look to other states that are loosely based, or even solidly based, on the same model for some guidance as well, but the reality is that there are a lot of unknowns.

It is one thing to go down the path of introducing industrial manslaughter and ensuring that you have done your level best to tick all those boxes. This should not be a symbolic gesture—and I am not suggesting it is, Attorney, I saw that look. I am not suggesting it is. This is one of your policies. What I am saying is with that policy comes a hell of a lot of responsibility.

You will tell me that you have done all that groundwork, and that is great, but these are not my concerns that are being raised: these are concerns that have been raised with me. If they are being raised with me, then my job is to raise them in here and to raise them with you, and that is precisely what I am doing now. People have legitimate concerns.

By the same token, employers of those people who do not make it home at night because of an incident that resulted in their death at work should be held responsible for that death. That should not be lost in this debate, but it does not mean that we ignore all the other issues that warrant consideration during this debate.

I have a number of other points that I will ask the Attorney about. I think I have made my point now enough. I could go on, if the Attorney likes, but I am mindful of the time. I will put to him a number of questions during the committee stage of the debate.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:11): I thank honourable members for their contribution to this debate. There are two in particular who I want to acknowledge: the contribution of the Hon. Tammy Franks MLC and the contribution of the Hon. Connie Bonaros MLC, who have both campaigned for reform and for the rights of injured workers on many occasions in these parliaments.

It is our intention to pass this legislation today. It is an important reform. It is a reform that has been sought by workers, unions and the families of victims of workplace tragedy for decades. I spoke in my first contribution to the second reading about the contributions of Andrea Madeley and Pam Gurner-Hall to this debate. The profound loss Andrea and Pam have experienced cannot be overstated, but nor can their generosity in campaigning for better safety at work so that others do not have to suffer the fate they suffered with loved ones.

This is a reform which is about delivering justice for victims of preventable workplace deaths and about deterring unsafe behaviour on worksites throughout this state. This bill comes before our parliament at a time when South Australia has fallen behind the rest of the nation. We have now seen industrial manslaughter laws introduced throughout the country: in Western Australia, Queensland, Victoria, the ACT and the Northern Territory. The commonwealth has committed to introducing industrial manslaughter laws and the New South Wales government attempted to introduce its own industrial manslaughter laws while in opposition.

Earlier this year, commonwealth, state and territory work health and safety ministers determined that industrial manslaughter would form part of our model national work health and safety laws. In my opening second reading explanation, I alluded to this being a unanimous decision. Upon checking the communiqué of the meeting, I can confirm it was a majority decision of work health and safety ministers.

What is clear in either event is that industrial manslaughter is now the status quo throughout this country and an important part of our model work health and safety framework. Every day that passes that we do not incorporate these provisions into our legislation does a disservice to the South Australian community.

The bill that has been developed has gone through a thorough and comprehensive consultation process, including with both workers' representatives and the South Australian business community. This has been a policy of the Labor Party since the lead-up to the 2018 election, a period of over six years as a standing policy.

In addition to the many meetings and roundtable forums with stakeholders, two consultation drafts of this bill were made available for feedback since September last year, a period of nearly 12 months before this debate. There can be no suggestions that this reform has taken anyone by surprise.

While we may not have seen eye to eye on every issue, the government has sincerely listened to the feedback from the business community and from unions and taken that feedback on board in the careful drafting of this bill. This reflects the respectful working relationship the government has had with many business leaders in the state, including but not limited to Business SA, the Master Builders Association and the Australian Industry Group.

We have strived to deliver a bill which is clear, which in its key elements is as consistent as possible with the laws of other states and territories and which reflects the 2018 review of the model work health and safety laws, which recommended the introduction of an industrial manslaughter offence.

I take this opportunity, as I have at many of the forums and round tables I have been to in relation to the development of this bill, to say that this reform is not about punishing the vast and overwhelming majority of South Australian businesses that take their work health and safety obligations seriously.

This bill does not impose any new obligations on employers beyond those already found in our Work Health and Safety Act. What this bill does, quite simply, is provide an appropriate punishment and a deterrent for those who cause the death of another person through a reckless or grossly negligent breach of health and safety. I commend the bill to this council and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: I want to use this opportunity to make a few general remarks about this bill because I have not yet spoken on industrial manslaughter during my time in this parliament. I regard and the Greens regard this as being a really good day for the people of South Australia because finally it appears that this reform, which is long overdue, will pass our state's upper house. It is a reflection, I think, of what this parliament does best—that is, listening to the concerns of the community, responding to their concerns and making laws that are going to change people's lives for the better and that are going to help people. That is fundamentally why we are all here in politics.

I reiterate the comments made by the Attorney-General; that is, good businesses, good employers, those who are doing the right thing by their workers, have absolutely nothing to fear from this reform. This is a positive step that is being taken for workers in our state. I acknowledge the long-term advocacy of the union movement and their passionate advocacy over many years. I know that the Greens have been proud to stand with them in this campaign over many years.

I pay tribute to the work of my colleague the Hon. Tammy Franks for her leadership on this issue over the last 10 years or so. As noted by the Hon. Connie Bonaros, the Hon. Tammy Franks introduced private member's bills on this topic back in October 2010, in May 2015, on 1 May 2019, on 23 September 2020 and on 4 May 2022, so it has now been 13 years since the Hon. Tammy Franks first introduced a private member's bill to address this issue. Indeed, it was Tammy's bill in 2015 that led to an inquiry into the occupational safety rehabilitation and compensation scheme to allow cross-party development of a consensus position.

Might I say that this was a policy commitment that the Greens took to the last state election and that the Labor Party took to the last state election and, I understand, that the SA-Best political party also took to the last state election. There is clearly a mandate from the people of South Australia to see this change made. I understand that some members are seeking to mount the argument that there has not been enough consultation or there has not been enough of an opportunity to consider amendments and the like. I do not accept that. There has been considerable consultation about this reform. There has been a huge amount of public engagement on this issue.

So I do think it is a bit rich for the opposition to suggest, if they are going to, that we are not in a position to deal with this today. This was the party that waved through draconian anti-protest laws with the blink of an eye. In this case, there has been a huge amount of public engagement on this issue over years and years, and it is clear that the people of South Australia want this done. I hope the parliament is going to do that today, and that will be a really good thing for the people of our state.

The Hon. C. BONAROS: Can we start by clarifying the points that have been raised with the Attorney in respect of volunteers and the exemptions that will apply to members who serve in unpaid or volunteer roles and their liability?

The Hon. K.J. MAHER: I thank the honourable member. The work health and safety laws, of which these will form part, I am advised do not apply if the organisation is a volunteer association, whether incorporated or unincorporated. A volunteer association, on my advice, is a group of volunteers working together for one or more community purposes and none of the volunteers either separately, jointly or in association with itself employ a person to carry out any work for the association. If the volunteer association instructs a paid CEO, in effect employing a person to carry out the work of the volunteer association, this step may take the volunteer association outside the exemption afforded by the act.

The Hon. C. BONAROS: Perhaps I will clarify that. My question was more in relation to people who serve in a volunteer role, and we will use racing as an example: I might serve on a board in a volunteer capacity and my exposure to risk as a result of serving not as a paid employee of a business but in a volunteer capacity. Foodbank might be another one that relies on people who undertake volunteer roles, albeit in a workplace that offers otherwise paid employment.

The Hon. K.J. MAHER: I thank the honourable member for her question. My advice is it would depend on the individual facts of the circumstances, but it may be the case that a volunteer board member may be considered a worker rather than an officer with officer duties, but it would depend on the circumstances of the fact.

The Hon. C. BONAROS: To be clear, in that instance a person who volunteers to serve on a board or work at Foodbank or some other place that provides paid employment could be deemed to be a worker and therefore subject to category 1, 2 and 3 offences but not industrial manslaughter, which carries a higher threshold in terms of responsibility?

The Hon. K.J. MAHER: I am not going to give advice about the particulars of a particular organisation, but the way the honourable member has characterised that is correct. A worker could be liable to prosecution for those category 1, 2 and 3 offences, but a worker is not liable for prosecution under what we are proposing here.

The Hon. C. BONAROS: So we cannot foresee any instance where a person is deemed to be a PCBU or an officer, as opposed to a worker who falls under category 1, 2 and 3?

The Hon. K.J. MAHER: As I said before, I am not going to fall into the trap of trying to give advice and trying to, essentially, provide an immunity or an exemption as part of this committee stage, but my advice is it may be that a volunteer board member is considered to be a worker—so, as the honourable member had correctly set out, a worker who might fall under being captured for prosecution under the 1, 2 and 3 categories of offences, but it is not a worker to whom this new regime of industrial manslaughter would apply.

The Hon. C. BONAROS: I am not asking the Attorney to provide immunity; I am asking for clarity. I am going to use organisations like KickStart for Kids, Foodbank, the Salvos as examples. Let's say I am working at one of those places. I have undergone some occ health and safety training because my job, as part of my volunteer role, is to drive the forklift or to supervise the other person who is driving the forklift. Is there a possibility that that person could be defined as a PCBU as opposed to a worker, and would that mean then that they are captured under the industrial manslaughter provisions?

The Hon. K.J. MAHER: My advice is if you are not a PCBU or an officer of a PCBU, then this regime will not capture you. Without knowing the exact and intricate details of any particular factual situation, I am not going to offer an absolute opinion, but this applies to persons conducting a business or undertaking or officers of those.

The Hon. H.M. GIROLAMO: On the same topic, in regard to sporting clubs, surf clubs, how will this legislation potentially impact on coaches, venue managers, bar managers? How would that apply, and also in regard to office holders within those not-for-profit organisations?

The Hon. K.J. MAHER: I am happy to repeat what I have just said. This regime, the new industrial manslaughter regime, will apply to persons conducting a business or undertaking and their officers.

The Hon. C. BONAROS: With respect, I do not think it is actually possible to rule out the possibility of them being a PCBU. If a person is in the situation, Attorney, where they have oversight of individuals, regardless of whether they are paid or not, you cannot rule out that person being deemed to be a PCBU.

The Hon. K.J. MAHER: Again, I am not going to stand here and try to do what a court would spend hours and hours of taking evidence doing in trying to rule what factual circumstance will have a PCBU or not.

The Hon. C. BONAROS: I will not press the point beyond this question. If I am an individual who has volunteered my time to work at Foodbank and my job is to supervise people on the floor of the shop who operate a forklift, in my capacity as a volunteer I could potentially be a person conducting a business or undertaking for that business?

The Hon. K.J. MAHER: Once again, without knowing the exact structure, I am not going to come to a conclusion or a judgement that would take, I suspect, hours of evidence and a tribunal to rule on.

The Hon. H.M. GIROLAMO: In regard to organisations where they have board members who have volunteered but they are operating commercial operations, such as a surf lifesaving club, an RSL or other organisations like that, how will that impact and will they be liable under this act?

The Hon. K.J. MAHER: I am happy to keep repeating myself. This would be for a tribunal to determine if it is a PCBU or not.

The Hon. C. BONAROS: During my earlier contribution I made reference to the statutory framework that SafeWork SA operates under, the regulatory regime and what they are responsible for. Are there any intentions to review that legislation in light of the responsibilities that apply to businesses under these laws?

The Hon. K.J. MAHER: That is exactly what we have done. It was an election commitment for a thorough review of how SafeWork SA operates. John Merritt, the former regulator from Victoria, conducted that review. The review was handed down and made public I think towards the start of this year. There were, from memory, 39 recommendations. I cannot remember the breakdown, but a substantial number of them we have agreed to and quite a number we have implemented and a number of others we are working through.

The Hon. C. BONAROS: When can we expect the remainder of those to be implemented, and do they deal specifically with the issue that has been canvassed in terms of the connection between the duties that apply under this and the regulatory obligations of SafeWork SA?

The Hon. K.J. MAHER: It was an exceptionally comprehensive review and I cannot remember the exact statistics, but from memory of the review there were two or three not accepted, and they included things like having targets for prosecution rates, which we did not think were appropriate. There were maybe half a dozen for further consideration.

One of the recommendations of the review was a tripartite committee made up of business organisations, unions and others from government, like SafeWork SA and ReturnToWork, and the Commissioner for Victims' Rights was on there originally, and looking at how and if we implement those remaining half dozen or so.

The Hon. C. BONAROS: Did it include recommendations around guidelines and guidance for businesses by SafeWork SA in terms of meeting their duties and obligations under the work health and safety legislation?

The Hon. K.J. MAHER: One of the key recommendations I referred to before was the establishment, as I understand there is in other jurisdictions, of that tripartite committee that is looking at exactly those issues.

The Hon. H.M. GIROLAMO: Is the Attorney able to clarify or rule out that volunteers will not be liable, if they are volunteer directors or board members under this legislation, and if not, is he able to consider amending the legislation so as to exclude volunteers from this?

The Hon. K.J. MAHER: As I said earlier in response to the Hon. Connie Bonaros, as a general proposition the work health and safety laws do not apply to the organisation if it is a volunteer organisation, whether incorporated or unincorporated. Regarding the determination of whether or not it is, I will not attempt to stand up here and rule out one organisation or one set of circumstances. That would be a matter to be heard by a tribunal if it arose.

The Hon. H.M. GIROLAMO: Given the ambiguity, do you think that an amendment would be appropriate to ensure volunteers are excluded?

The Hon. K.J. MAHER: No.

The Hon. C. BONAROS: I have referred to some figures, and I referred to about 77 inspectors. I think the total number was about 91 staff who work within that group. Can the minister break that down for us and confirm the actual number of inspectors on an FTE basis who are responsible for oversight of all businesses in South Australia?

The Hon. K.J. MAHER: I am happy to be able to provide figures up to 20 August this year. In terms of FTEs, there were 56.6 inspectors, 10.4 FTE investigators, 7.8 specialist staff and 17.1 managers and team leaders.

The Hon. C. BONAROS: Can the minister confirm, for the record, how many workplaces are those 56.6 inspectors responsible for overseeing?

The Hon. K.J. MAHER: I am sorry, but I do not have those figures.

The Hon. C. BONAROS: Does the minister accept that there are over 150,000 small business in South Australia?

The Hon. K.J. MAHER: I accept that is the figure the honourable member is putting forward. I could not attest to that either way.

The Hon. C. BONAROS: Could the minister indicate, for the chamber's sake, how it is that those inspectors target particular businesses in terms of auditing, potential breaches and compliance issues? How do they spread themselves across businesses in South Australia?

The Hon. K.J. MAHER: Of course, not every single business is inspected even on a yearly basis. I do not think that would happen anywhere in the world in terms of a safe work regulatory regime. My advice is that inspections occur in relation to order of risk and a triage system.

The Hon. C. BONAROS: Do they also respond in terms of notified breaches? What does the triaging look like? Are they responding directly to breaches and incidents occurring?

The Hon. K.J. MAHER: I do not have the exact methodology that is employed in the day-to-day inspections here, but I am advised that complaints and notifiable incidents are triaged in accordance with guidelines from SafeWork SA.

The Hon. C. BONAROS: Are those guidelines documents that the minister can provide to members of this place? I am not asking you to provide them now, but are they internal guidelines or are they guidelines that are available in terms of how triaging works?

The Hon. K.J. MAHER: I expect they are internal guidelines used for SafeWork SA, but I can check and, if that is not the case and they are published, I am sure I can point the honourable member in that direction.

The Hon. C. BONAROS: Have there been any plans to increase the number of inspectors from 56.6 following the implementation of this bill?

The Hon. K.J. MAHER: There are a number of vacancies and there is ongoing recruitment.

The Hon. H.M. GIROLAMO: How many vacancies are there currently in place?

The Hon. K.J. MAHER: I do not have that information in front of me. I will have to see if I can find that and bring back a reply.

The Hon. C. BONAROS: I am sorry, but we can confirm 56.6 current FTEs serving with a number of vacancies?

The Hon. K.J. MAHER: I am advised yes.

The Hon. C. BONAROS: Is there any plan to increase the number of FTEs after the vacancies that currently exist are filled?

The Hon. K.J. MAHER: I am happy to take that on notice and see if there are any plans that SafeWork SA has either to vary the mix of those that are in that team, or to increase or otherwise the number of inspectors.

The Hon. H.M. GIROLAMO: Are you able to confirm that it is 68 budgeted employees within this space?

The Hon. K.J. MAHER: I will have to take that on notice and bring back a reply. If my memory serves me correctly, these figures were all traversed during the estimates process. If they are not able to be found quite easily from looking at the Hansard from estimates I will bring back a reply.

The Hon. C. BONAROS: How many of those inspectors are responsible for metropolitan businesses versus regional businesses and how often do they coordinate travel between regional—

The Hon. K.J. MAHER: I understand the honourable member's question. I do not have those figures here, but again I am happy to provide those to her.

The Hon. H.M. GIROLAMO: Has the government thought about potential risks to apprenticeship take-up in trades at a time when skilled workers are needed?

The Hon. K.J. MAHER: I thank the honourable member for her question. Our overriding reason for introducing this legislation is the safety of people who work in South Australia.

The Hon. H.M. GIROLAMO: Does the government expect group training organisations to conduct day-to-day inspections at locations of multiple apprentices located widely across the state to protect itself from liabilities from the changes?

The Hon. K.J. MAHER: I thank the honourable member for her question. Those sorts of concerns certainly formed the basis of a lot of discussion that occurred with some of the peak employer groups, such as the Master Builders Association. One thing that I think needs to be reiterated is that what we are doing here does not introduce any new standards that do not already apply. This only comes into effect when you breach an obligation that already applies, so it does not introduce new obligations.

The Hon. H.M. GIROLAMO: Is the government aware that similar industrial manslaughter legislation interstate that failed to exempt GTOs led to providers making the decision not to become GTOs due to increased risk of a liability?

The Hon. K.J. MAHER: Certainly, that was raised as part of the many discussions we had with employer groups. I reiterate that this does not introduce any new obligations that do not already exist.

The Hon. H.M. GIROLAMO: Were considerations made to exempt GTOs from this legislation?

The Hon. K.J. MAHER: We certainly took into account and were very grateful for the feedback and help with how we have drafted it to make sure that we took into account the views particularly of those training organisations, as I said, like the Master Builders Association. I think the Motor Trade Association may have similar schemes. That certainly was at the forefront of how we went about drafting this and the two drafts were subject to very extensive consultation and feedback.

The Hon. C. BONAROS: I am going to ask the Attorney to turn his mind to the correspondence from the Law Society and provide some clarity around their view, and indeed the view of other legal commentators in this space, on the issue of recklessness and the threshold that applies in criminal manslaughter versus that which would apply under industrial manslaughter.

The Hon. K.J. MAHER: I thank the honourable member for her question. Certainly, all the advice we have is that the bill we have before us that includes recklessness and gross negligence is consistent with the principles of ordinary common law criminal manslaughter.

The Hon. C. BONAROS: Can the minister refer specifically to the concerns expressed by the Law Society about the effect of lowering the threshold for manslaughter or potentially causing some confusion as a result of the thresholds that were articulated in that correspondence? Did the government turn their mind to those issues and, if so, what is their response to the potential of either causing confusion or lowering the threshold of manslaughter?

The Hon. K.J. MAHER: As I said before, that is inconsistent with all the advice we have received throughout the putting together of this bill. If we did not include recklessness or gross negligence, that would probably lead to confusion. I do appreciate that the Law Society has a very different view about the need for this. The Law Society's very longstanding view, and it has been their view for years that they have put forward, is that you ought not have industrial manslaughter. That is their view. They do not think this is worthy of being on the statute books in South Australia.

We have a very different view from the Law Society on this issue. As I have said, all the advice I have received is contrary to what they have put forward in what the honourable member is putting forward to the chamber.

The Hon. C. BONAROS: I am not putting forward anything, and I would hate for that to be interpreted as my—

The Hon. K.J. MAHER: What you are putting forward on behalf of them.

The Hon. C. BONAROS: No, I am not. I have raised concerns that have been raised with us, and I said when I made those points that I do not necessarily adopt or do not adopt the position of the Law Society. I made that very clear when I spoke and asked the minister to clarify that point. I would ask him now to confirm that point. I am simply asking a question based on a submission made which does not say to me anywhere here, 'We oppose industrial manslaughter.' It has opened up a section of the bill for scrutiny based on an assessment that has been made, and I am simply asking the questions.

The Hon. K.J. MAHER: It certainly has been the position, and I am not aware that the Law Society has resiled from their position, that they have opposed, in previous correspondence in years gone by, creating a new offence of industrial manslaughter. I do accept that the Hon. Connie Bonaros has long been a supporter of creating an offence for industrial manslaughter on our statute books. As I said, that stands in opposition to previously stated views of the Law Society.

The Hon. H.M. GIROLAMO: What changes were made between the two drafts as the result of consultation?

The Hon. K.J. MAHER: I thank the honourable member for her question. I do not have a complete list of compare and contrast between the two drafts, but there was a discussion paper that went out first that had general principles. As a result of that discussion paper there were many more consultation sessions that were held that ended up with the first draft. As a result of that first draft there were many more consultation sessions held.

Certainly, in my experience—three years as a minister in the Weatherill government and now a year and a half in the Malinauskas Labor government—this would have to be one of the most consulted on bits of legislation I have ever been personally involved in. I have had many hours myself, and my advisers and my department have had multiples of those many hours, consulting on principles, on the initial draft and on the second draft, to where we are now.

The Hon. H.M. GIROLAMO: In particular in regard to the MTA and MBA feedback, what changes were made as a result of this between the two versions?

The Hon. K.J. MAHER: I do not have a complete list, but certainly there were a number of changes. I have personally taken into account views put forward by the MBA, the MTA and others, as has everyone who has been involved in drafting this bill. I do not have a complete compendium of exactly the changes that were made, but there have been significant changes made from the first draft as a result of the sensible suggestions that have been put forward by those and others.

The Hon. H.M. GIROLAMO: Is the Attorney able to take on notice to provide that so it can be reviewed between the houses?

The Hon. K.J. MAHER: I am happy to do so to the extent that we can do that. Changes that would have been made would have taken into account not just one group's views but many groups' views. I can provide a flavour of the changes that were made; in terms of how attributable they will be to exactly one group or a segment of the industry, I will see what we can sensibly provide.

The Hon. C. BONAROS: I am going to ask the Attorney a question in relation to the risk of death or serious harm or injury, and I am hoping he can provide a lot of clarification at this point. The first iteration of that bill did limit the risk to death; is that correct?

The Hon. K.J. MAHER: My advice is, no, that is incorrect.

The Hon. C. BONAROS: Was there a draft that was consulted on that was limited to death, or has the bill always been death or risk of death or serious injury or illness?

The Hon. K.J. MAHER: Again, I do not have what the exact changes were. I am happy to take that on notice but I think it might be that—whether it was in the principles that went out for initial consultation in the first draft or between the first and second drafts—serious injury or illness was incorporated to align it more closely with common law manslaughter, so that we did not suffer the sort of problems that the honourable member was referring to in having that big difference. It is my understanding that somewhere in the three stages that became apparent, but I will have to take that on notice to bring back a better answer.

The Hon. C. BONAROS: That is certainly in line with my understanding from discussions I have had today regarding the bill or the proposal that was the subject of consultation. On that issue, can the minister confirm which states limit risk to death risk and which states include death risk and serious illness or injury, and why there is a difference?

The Hon. K.J. MAHER: I do not have a complete jurisdictional comparison. I have two: Victoria and Western Australia, at least, include not just death but serious injury or serious illness or serious harm. As I have said, my understanding—and I will have to go away and check—is that at some stage during the consultation process these were introduced to have it more analogous to common law manslaughter.

The Hon. C. BONAROS: Perhaps the Attorney can confirm that in the ACT, NT and Queensland the risk is limited to the death of a person, and provide some clarity around whether there is any connection in WA? They have not adopted the two limbs in WA, they have adopted the one, but they do have death or serious injury or harm. Is there any connection between those two things? I am not sure if the Attorney understands my question.

The Hon. K.J. MAHER: My advice is WA is, as I understand it, the only jurisdiction that only has recklessness, but we do not have any evidence to suggest that including serious injury was in any way linked to the fact that they are the only jurisdiction to have that.

The Hon. H.M. GIROLAMO: In regard to that, can the Attorney advise the difference between 'gross negligence' as set out in our bill compared with the simple 'neglect' in WA and 'negligent' in Queensland and Victoria, which were found in other jurisdictions and around the country?

The Hon. K.J. MAHER: My advice is the use of 'gross negligence' is quite simply the codification of what is civil negligence but in a criminal setting. It is the language that was suggested in the Boland review.

The Hon. H.M. GIROLAMO: Why is different terminology being used in different states if it fundamentally means a similar outcome? Are you able to explain why this wording was decided upon for this legislation?

The Hon. K.J. MAHER: As I am advised, following the recommendations in the Boland review.

The Hon. C. BONAROS: Just to confirm, was there any earlier iteration in South Australia that was limited to negligence as opposed to being extended to gross negligence, or have we always had gross negligence?

The Hon. K.J. MAHER: The concept of gross negligence being the criminal manifestation of civil negligence means it in effect has the same meaning when you are talking about the criminal law.

The Hon. C. BONAROS: My question was: did we start with negligence and move to gross negligence, or did we adopt the Boland recommendation at the outset?

The Hon. K.J. MAHER: As I say, again with the iterations that have gone through, I am happy to take that on notice. I just do not have that in front of me.

The Hon. H.M. GIROLAMO: Does the legislation also apply when an employer's negligent conduct causes the death of a member of the public, or is it just for employees?

The Hon. K.J. MAHER: My advice is, yes, it can.

The CHAIR: The Hon. Ms Girolamo, I am getting to the point where I want you to start speaking specifically at the clause that it is relevant to, but continue for now.

The Hon. H.M. GIROLAMO: Thank you. Can the Attorney give any insight as to why Business SA considers the definition in this bill to be consistent with practices to date? Does he know if they are referring to other jurisdictions or other legislation in South Australia?

The Hon. K.J. MAHER: I think this could be correct—again, we would need to check because I do not have all the submissions that everyone made—but I think what the honourable member might be getting at is, whether it is Business SA or another group, they did not have a problem with the definitions used because they effectively codify the common law of manslaughter in what we are attempting in industrial manslaughter. Whether it was Business SA—it may have been another group; I am not quite sure—I think that is what the honourable member might be referring to.

Clause passed.

Clause 2.

The Hon. H.M. GIROLAMO: When does the Attorney envisage these laws will be assented? What things will need to be put in place to ensure the rollout of this legislation?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is actually an important question and one that was raised significantly during consultations, particularly with business groups. It is our intention that it would be at least six months before it came into effect after the laws are passed here. One of the reasons for laws is a deterrent effect. We want to make sure, and businesses have been very keen to make sure, that there is a sufficient education and awareness campaign that these laws are coming into effect. The anticipation is that it will be some six months once this legislation is passed, should the parliament see fit to pass it.

The Hon. H.M. GIROLAMO: What has SafeWork SA done to prepare for this legislation?

The Hon. K.J. MAHER: SafeWork are turning their mind to how an education and awareness campaign will work, but of course we need to wait for the legislation to be passed. But it is certainly something that they are aware of, and we have asked that they start turning their mind to how that would look.

Clause passed.

Clause 3.

The CHAIR: At clause 3 we have an amendment in the name of the Hon. Ms Bonaros.

The Hon. C. BONAROS: I am sure it is an amendment the Attorney will be glad to hear I am not wedded to but one that I anticipate he will clarify for me before I move it at this stage. So I have a series of questions that I am going to ask the Attorney to clarify. It ties into the issue of the risk of death and serious injury or illness. I did file it on the basis that I would like the Attorney to articulate what it is that made us change from 'risk of death' to 'risk of death or serious injury or illness'. Also, how do we expect that to be treated differently amongst jurisdictions that have adopted one over the other?

The Hon. K.J. MAHER: My advice is that the reason is that it is 'risk of death or serious injury' is that, under the ordinary criminal offence of manslaughter, a person will be guilty of involuntary manslaughter if they cause the death of another person through an unlawful or dangerous act, where a reasonable person in circumstances appreciated that the act would expose another to the risk of death or serious injury or criminal negligence, a great falling short of the standard of care a reasonable person would exercise which involves a high risk of death or serious injury.

According to our advice, our bill is consistent with the principles of ordinary criminal manslaughter. On our advice, if you remove the serious injury or illness, you would be creating a lower threshold than applies for industrial manslaughter than applies for criminal manslaughter, and we think that would not be a good outcome.

The Hon. C. BONAROS: Can the minister confirm what discussions, if any, took place at that minister's meeting? Was any of this canvassed when you had these initial discussions, around what the definitions would be, because we have some states that have gone one way and other states that have gone another way. I am just trying to understand what underpinned that.

The Hon. K.J. MAHER: I appreciate the question. As I have said, I have spent many hours at round tables. The particulars of exactly how these look, and certainly the very high-level issues of gross negligence or recklessness were discussed at the round tables I was involved in, but there were many hours of roundtable discussions that followed my involvement that went into the greater detail.

Certainly, I was involved where there were very high-level broad discussions about concepts of recklessness and gross negligence. The very particulars of which I think the honourable member is talking about, when you talk about serious injury or illness, were discussions that officers of organisations and officers within my department and office had.

The Hon. C. BONAROS: Far be it from me to risk lowering the threshold of this bill, as the Attorney suggests. We will leave that for the courts to decide. Is the Attorney able to provide us with any further information—not now—that can further validate the points that he has just made in relation to those discussions around that issue?

The Hon. K.J. MAHER: Again, I do not have details of the many hours of discussions that occurred, but I know these issues were traversed and discussed. As I have already said, in my almost five years as a minister over a couple of governments, this is one of the bills that has had the most extensive consultation and the most extensive feedback considered that I have been involved with.

The Hon. H.M. GIROLAMO: Can the Attorney confirm that 'serious illness' sits in the criminal manslaughter definition?

The Hon. K.J. MAHER: I thank the honourable member for her question. In terms of criminal manslaughter, my advice is that it is expressed in different ways depending on the context. It is expressed as 'serious injury or illness' in the context of the work health and safety regime because that is the language used in the work health and safety regime. In other areas of the criminal law, rather than 'serious injury or illness' it is expressed as 'death or serious harm' or 'death or grievous bodily harm', depending on the context. It is not a uniform set of words for all sorts of manslaughter but, depending on the circumstances, similar concepts exist.

The Hon. H.M. GIROLAMO: Are there any concerns with the lack of clarity or potential ambiguity with that?

The Hon. K.J. MAHER: No. My advice is I would suggest that, by using words that are consistent with the words that are used in the work health and safety regime, being 'serious injury or illness', it would actually provide more clarity than importing a definition that has no relevance to this regime.

The Hon. C. BONAROS: For the assistance of the chamber and the Attorney, I indicate that I will only be moving amendment No. 1 [Bonaros-2], which relates to section 271—Confidentiality of information.

Clause passed.

Clause 4.

The Hon. H.M. GIROLAMO: I move:

Amendment No 1 [Girolamo–1]—

Page 3, lines 12 and 13 [clause 4, inserted section 30A(1)]—

Delete '(being a person conducting a business or undertaking or an officer of a person conducting a business or undertaking)'

The amendments we have reinforce our view that safety is everyone's responsibility. Having employers also captured in the legislation ensures that everyone is focused on ensuring safety and responsibility right across the board. This has been raised in some consultation with key bodies, including the Master Builders, the Australian Hotels Association and the Motor Trade Association, which are all supportive of this amendment.

The Hon. K.J. MAHER: I rise to indicate that the government will not be supporting this amendment. As honourable members have fleshed out, there are some slight differences in the way these offences are expressed in the jurisdictions that already have them. New South Wales we would expect, given it was moved by the then opposition and now government, to have that as well. Although there is one thing that is very uniform: no other jurisdiction does what the honourable member's amendment seeks to do, so we will not be supporting it.

The Hon. C. BONAROS: I had a series of questions for the mover, but I will not ask them. Suffice to say, I think the question is: who are we pitching this at? I think there would be a view shared amongst many that the worker is the most vulnerable person on that worksite, and exposing them to the risk of a charge of industrial manslaughter does not necessarily fit with the intent of the bill itself. As such, we will not be supporting this amendment.

The Hon. T.A. FRANKS: I would like to ask the mover if the intent of this amendment is to broaden those who might be liable.

The Hon. H.M. GIROLAMO: The intent of this amendment is to make sure that safety is front and foremost for everyone, so that is why we have moved it. It is to make sure that there is coverage across the board by saying that, as we have indicated in both my speech and recently now, safety is everyone's responsibility.

The Hon. T.A. FRANKS: When the mover says that this is to ensure that safety is everyone's responsibility, does that mean that by making it everyone's responsibility it is not the PCBU's responsibility in the very fundamental premise of our work health and safety laws that we currently have? In fact, is this not creating an entirely new context, if you like?

The Hon. H.M. GIROLAMO: It is our belief that the way the legislation currently stands puts all the responsibility onto the owners of the organisation rather than onto everyone who is partaking in work health and safety, and that is why we have moved the amendment.

The Hon. T.A. FRANKS: Is the Liberal Party seriously contending that we remove PCBUs from having the current responsibilities that they do at present?

The Hon. H.M. GIROLAMO: No.

The Hon. T.A. FRANKS: The Greens will be opposing this amendment.

The Hon. C. BONAROS: I want to ask the mover if she could turn her mind to the questions that we asked previously in relation to volunteers. Has she considered that this could potentially bring those volunteers who could be dubbed to be workers within the scope of the amendment?

The Hon. H.M. GIROLAMO: No, it is our view that volunteers should be excluded.

The Hon. T.A. FRANKS: When the mover says 'it is our view', does she mean the view of the Liberal Party and is that backed by any legal advice, and could she cite the legal advice?

The Hon. H.M. GIROLAMO: It is our view as opposition and also based on consultation with the Master Builders Association, the Australian Hotels Association and the Motor Trade Association, to name a few.

The Hon. T.A. FRANKS: I asked for legal advice; could you cite the legal advice?

The Hon. H.M. GIROLAMO: As far as I am aware, the consultation has been broad ranging as well. From our perspective, this is the opposition's position and that is why we are putting forward the amendment.

The Hon. C. BONAROS: With respect to the mover, I suggest that, based on the advice that was provided previously by the Attorney, this would well and truly capture volunteers who are deemed to be workers in the sorts of scenarios that we both outlined earlier and would be captured by this amendment.

The committee divided on the amendment:

Ayes 7

Noes 12

Majority 5

AYES

Centofanti, N.J. Game, S.L. Girolamo, H.M. (teller)
Henderson, L.A. Hood, B.R. Lee, J.S.
Lensink, J.M.A.

NOES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Pnevmatikos, I. Simms, R.A. Wortley, R.P.

PAIRS

Hood, D.G.E. Scriven, C.M.

Amendment thus negatived.

The Hon. H.M. GIROLAMO: I will not be moving my amendment No. 2, given it was consequential. I move:

Amendment No 3 [Girolamo–1]—

Page 3, line 35 [clause 4, inserted section 30A(3)]—

Delete ', a Category 2 offence or a Category 3 offence'

In regard to this amendment, what the opposition would like to see, after consultation with key groups such as the Motor Trade Association, is that when industrial manslaughter is put forward it is guaranteed, or there is very significant evidence that it will go through. The opposition has concerns that currently with work health and safety laws the highest threshold is 'reckless'. We believe this threshold should be reserved for the highest new offence of industrial manslaughter.

Other jurisdictions such as Western Australia, Queensland and Victoria do not contemplate gross negligence; Western Australia just mentions 'neglect' and both Queensland and Victoria mention 'negligence'. We think removing these categories removes the chance that we would not see people or organisations being charged with industrial manslaughter and then granted a lesser charge, unnecessarily damaging their business and potential reputation.

The Hon. K.J. MAHER: I rise to indicate the government will not be supporting the amendment that seeks to effectively undo the alternative verdicts provision of this bill. If a court is not satisfied that a person is guilty of industrial manslaughter but is satisfied they are guilty of a lower level offence, the court can convict the person of the lower level offence instead. Alternative verdicts are only available if an industrial manslaughter prosecution is brought within the same time limitations as the lower level offence that could be charged.

This amendment has the effect of limiting an alternative verdict to, I think, a category 1 offence only, and excludes category 2 and 3 offences. We do not see a principled reason to do this. It would potentially have the perverse effect of shielding a person from a criminal conviction even if a court found they were guilty of all the elements of a category 2 or 3 offence.

The committee divided on the amendment:

Ayes 7

Noes 12

Majority 5

AYES

Centofanti, N.J. Game, S.L. Girolamo, H.M. (teller)
Henderson, L.A. Hood, B.R. Lee, J.S.
Lensink, J.M.A.

NOES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Pnevmatikos, I. Simms, R.A. Wortley, R.P.

PAIRS

Hood, D.G.E. Scriven, C.M.

Amendment thus negatived; clause passed.

Clause 5.

The Hon. H.M. GIROLAMO: Would government department CEs be liable for action by their department staff under this legislation?

The Hon. K.J. MAHER: It is probably not strictly related to this clause, but my advice is that, yes, government agencies are prosecuted by SafeWork SA, and this would be no different. It would apply to the Crown.

The Hon. H.M. GIROLAMO: Could you confirm for the record: would ministers also be liable for the actions of their staff and department?

The Hon. K.J. MAHER: I do not have any advice to that effect, but I think it would be unlikely that ministers would be PCBUs.

The Hon. H.M. GIROLAMO: As an example, in regard to the PIRSA helicopter in March this year shooting at deer hunters in the South-East, if that had ended in tragedy would that individual have been responsible under this act?

The Hon. K.J. MAHER: I thank the honourable member for her question, and I very much appreciate her invitation to act as a judge in a case on facts that have been given 15 seconds' airing, but I will not be taking her up on her invitation.

The Hon. C. BONAROS: Can the Attorney confirm that, regardless of this law applying or not, in that case there could be murder or manslaughter charges under the criminal code that apply?

The Hon. K.J. MAHER: If an individual directly causes the death of another person, for instance via a bullet from a gun that they shot, then there is a very real possibility that ordinary common law murder or manslaughter charges could possibly apply.

The Hon. C. BONAROS: I apologise if I am moving on from that line of thought, but just in terms of the minister's responsibility in this space—and I outlined this during my second reading contribution—there is a requirement for the minister to direct or there is a provision in the legislation that actually places responsibility on the minister when we are talking about prosecutions that apply to the Crown. I will find it while the Hon. Heidi Girolamo is asking her question.

The Hon. K.J. MAHER: We are not aware of what the member is talking about.

Clause passed.

Clause 6.

The Hon. H.M. GIROLAMO: Did the government receive advice from the SafeWork SA oversight and advisory council in relation to the amendment recommended by Mr John Merritt in his review of SafeWork SA completed in December last year? I can quote from its recommendation No. 11:

The Minister should seek the advice of the [oversight committee] regarding SafeWork SA’s preparedness to support any Industrial Manslaughter provisions in the [Work Health and Safety] Act.

What was that advice, and are you able to table it?

The Hon. K.J. MAHER: I thank the honourable member for her question. Our response to that particular recommendation was we had already done what was contemplated in the recommendation. We had had thorough consultation with all of the groups and many more who were on that consultative committee.

The Hon. H.M. GIROLAMO: Does SafeWork SA currently possess the appropriate skills to investigate a charge of industrial manslaughter?

The Hon. K.J. MAHER: As I have said before, my advice is that these do not bring in new duties. These relate to duties that are currently already obligations under the work health and safety system which SafeWork SA already investigate and prosecute. So that would be a yes.

The Hon. H.M. GIROLAMO: Are you confirming that no additional resourcing will be required as a result of this legislation coming into place?

The Hon. K.J. MAHER: I do not have the exact figures in front of me, but certainly there has been a multimillion dollar increase for SafeWork's budget, which I am advised includes a complex cases unit which it is anticipated this would form part of. So, although they have the capability to do this, there may be an extra workload which is anticipated by that complex cases unit.

The Hon. H.M. GIROLAMO: I am happy if you would like to take this on notice, but how many FTEs are needed or how many additional inspectors are recommended to be put in place following this legislation?

The Hon. K.J. MAHER: I am happy to take it on notice. It might not be as particularised as the honourable member has asked because, as I have mentioned, there is the creation of that new complex cases unit, of which this will be part, but I am happy to see how well we can answer that question taken on notice.

The Hon. H.M. GIROLAMO: What is the current trend of work injury reduction in South Australia? Is it trending up or down?

The Hon. K.J. MAHER: I am afraid I just do not have any information in relation to that. I am not sure it relates closely to the clause, but it is possibly ReturnToWork, in terms of work injury management, that would be more appropriate to look at that. I can see if they can understand what the member is asking and bring back a reply.

The Hon. H.M. GIROLAMO: Again, you may like to take this on notice. Is SafeWork SA currently fully staffed, what are their vacancies and, given the investment to SafeWork SA that you have previously mentioned and that came through in the last state budget, was this—

The CHAIR: The Hon. Ms Girolamo, how does this possibly relate to clause 6? I am looking at it. I cannot see any possible way that this can relate to clause 6.

The Hon. H.M. GIROLAMO: Section 216 in regard to the regulator. I am asking questions around SafeWork SA. He is not answering them anyway, so I am happy to poke on. Can I ask one more question?

The CHAIR: Ask your question. Let's get on with it.

The Hon. H.M. GIROLAMO: Who decides if the threshold for prosecution is met in regard to industrial manslaughter? Is it the SafeWork SA officer, the DPP or another body?

The Hon. K.J. MAHER: I thank the honourable member for her question. My advice is that the decision to prosecute is made by SafeWork SA but, like in many areas, it would almost certainly be with significant advice and input from the Crown and/or the DPP.

Clause passed.

Clauses 7 to 9 passed.

New clause 10.

The Hon. C. BONAROS: I move the following amendment in my name:

Amendment No 1 [Bonaros–2]—

Page 4, after line 26—Insert:

10—Amendment of section 271—Confidentiality of information

(1) Section 271(3)(a)—delete 'person's consent; or' and substitute:

consent of—

(i) the person; or

(ii) if the person has died and the death is a notifiable incident—the person's next of kin or the person's legal representative; or

(2) Section 271(3)—after paragraph (f) insert:

or

(g) if a person has died and the death is a notifiable incident—to or by the person's next of kin or the person's legal representative; or

(h) in any other circumstances prescribed by the regulations.

I have already spoken to this amendment during the second reading debate of this bill. It relates specifically to section 271—Confidentiality of information. That provision effectively ties to requirements that we have not to disclose an individual's personal details. Section 271 outlines:

(2) The person must not do any of the following:

(a) disclose to anyone else—

(i) the information; or

(ii) the contents of or information contained in the document;

It then goes on:

(b) give access to the document to anyone else;

(c) use the information or document for any purpose.

There are other provisions that relate to this as well, in relation to intentional disclosure or otherwise.

My issue with section 271 is this: while we all acknowledge that there are requirements at both a state level and, indeed, a commonwealth level around privacy and non-disclosure, we know that there have been instances where this particular provision has been raised where a person has actually died, so we are talking about the death of an individual here. It has been raised in the Gayle Woodford instance and it has been raised in the Howard inquest, which is currently ongoing, where it has been used as a secrecy provision for reasons of non-disclosure of information to family.

Again, there would be no requirement if, in the circumstances, it was not appropriate to disclose on the basis of privacy. You could actually still request that information by FOI or otherwise as a next of kin where a person has died. If you think of it in terms of medical health records, an FOI can be done now for my late mother to request her medical records from a hospital. As her next of kin, I would be eligible to apply for those records from SA Health. In this instance, what I am saying is a next of kin ought to be able to apply for records that relate to someone who has died and the death is a notifiable incident, and they should be released to the next of kin or to their legal representative.

There could be regulations the government could develop to finesse that further in terms of what is appropriate and what is not appropriate. But certainly, the concerns that have been raised around this being treated as a secrecy provision, where information is just withheld from individuals, would be alleviated.

The Hon. K.J. MAHER: I must say, I agree with almost all that the honourable member has said. We agree with the idea that there needs to be reform in this area. Certainly, I have spent time with Keith Woodford and I see the anguish and the trauma it has created. It is not being used as secrecy; it is a confidentiality provision. SafeWork would be breaching their act if they provided some of the information that is requested.

Former Federal Court Judge John Mansfield AO KC, at the new government's request, held an independent review into the death of Gayle Woodford and recommended reforms just like this. In addition, the John Merritt review that I talked about earlier recommended very similar reforms. We are committed to these reforms.

It has become very apparent to me, because I have spent a number of hours on this as well, that this is a complicated area. We want to be very careful that the reforms we want do not have some sort of perverse outcome where information is required to be handed over that then might prejudice an investigation. That would be the worst outcome in making these reforms.

I might indicate as well that as we work towards reforms in this area that, as I have said, we are committed to with the recommendations from both the Merritt review and the Mansfield review, we intend to apply more broadly than just with a death of a person. The starting point in what we are looking to do is to make it much more analogous to the information that is able to be, and is, provided to victims and their families by SAPOL and the DPP. That is our starting point.

Although we will not support the specific amendments here that, as I read them, apply just to the death of a person, we are absolutely committed to implementing what the honourable member is trying to do here but in a way that does not have any perverse effect of actually perhaps hindering an investigation. Our intention is wider than just when someone dies.

I thank the honourable member for bringing this amendment here. Like quite a number of things the Hon. Connie Bonaros has brought to this chamber, we are in furious agreement and we thank her for making us a better government.

The Hon. T.A. FRANKS: For the record, the Greens will not be supporting this amendment today but do concur with the Attorney-General's support of the principle and understand the good intent in which it is brought before us in this debate. I note that the commencement date of this legislation, when it finally does pass the parliament, is another six months away anyway. I would hope that in that time, by the time we see this come into effect, we will have some movement on this issue from the government.

The Hon. H.M. GIROLAMO: I appreciate the amendment coming forward. We are in a similar boat to the government. We definitely support it in theory and look forward to this potentially being investigated further down the track.

The Hon. C. BONAROS: Perhaps if I could just ask the Attorney to clarify. I agree wholeheartedly with what everyone has said, and am pleased to hear that response. The bare minimum was death, given that we were dealing with industrial manslaughter, so if that is the scope, is there a rough time frame for when we can expect to see that?

The Hon. K.J. MAHER: As I say, I have spent a number of hours going through some permutations and combinations of how this might work. My best guess would be likely early next year.

The Hon. C. BONAROS: I seek leave to withdraw my amendment on the basis that the Attorney has given that undertaking.

Leave granted; amendment withdrawn.

Title passed.

Bill reported without amendment.

The Hon. K.J. MAHER: I move:

That the report be adopted.

The committee divided on the motion:

Ayes 12

Noes 7

Majority 5

AYES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Pnevmatikos, I. Simms, R.A. Wortley, R.P.

NOES

Centofanti, N.J. Game, S.L. Girolamo, H.M. (teller)
Henderson, L.A. Hood, B.R. Lee, J.S.
Lensink, J.M.A.

PAIRS

Scriven, C.M. Hood, D.G.E.

Motion thus carried; report adopted.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:49): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 12

Noes 7

Majority 5

AYES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Pnevmatikos, I. Simms, R.A. Wortley, R.P.

NOES

Centofanti, N.J. Game, S.L. Girolamo, H.M. (teller)
Henderson, L.A. Hood, B.R. Lee, J.S.
Lensink, J.M.A.

PAIRS

Scriven, C.M. Hood, D.G.E.

Third reading thus carried; bill passed.

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