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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-08-31 Daily Xml
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Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 July 2023.)

The Hon. H.M. GIROLAMO (15:48): I rise to speak on the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. I also advise that I am the lead speaker for the opposition and our only speaker for this bill. From the outset—and it should not come as a surprise to those in the chamber, as this issue has been aired before—the opposition will not be supporting this bill in its current form. Having said that, the opposition shares the intent that we should all take reasonable and appropriate steps to reduce instances of workplace injury and death.

However, we on this side believe this bill is clumsy and will not achieve this intent to an appropriate standard that the industry deserves. We note and appreciate that the drafting of this legislation has gone through a few iterations and has been consulted on by the government, but serious concerns have been raised by businesses and industry bodies about the impact of this legislation as drafted in the third version.

I give notice that I intend to propose amendments during the committee phase, which are still being consulted on and therefore have not been filed as yet. I am more than happy to discuss these with both the crossbench and government in due course. The opposition will also have a number of questions at the committee stage.

We have grave concerns about the overreach of this bill and its effects on the industrial landscape in South Australia. SafeWork SA is the state's workplace and safety regulator and works with the business community to offer advice and education on work health and safety issues, provide licensing and registration for workers, investigate workplace incidents, and enforce work health and safety laws in South Australia. Under the proposed bill, SafeWork SA will continue to be the responsible agency for this legislation. Resourcing of prosecutions is of great importance to ensure workers and workplaces are assured of a consistent and stable application of these laws, and we will pursue this during the committee stage.

We on this side strongly believe that within any organisation there should, rightfully, be a collective responsibility for employers and employees to ensure that everyone works in a safe environment, living the tenet of 'safety is everyone's responsibility'. This is not an outrageous concept. Indeed, some union websites—whose members' work is sometimes quite dangerous in particular industries—also use this same language. The Australian Unions website, under the heading 'Safe Workplaces', states:

Workers have an important role to play in ensuring their own safety as well. You are responsible for taking reasonable care of your own health and safety and that of your co-workers.

The Australian Workers Union website has the heading 'Health and safety is everyone's concern' and goes on to state:

Safety is your job too!

You have obligations to yourself and others at work. It's up to you to:

Take care of your own health and safety.

Take care not to do anything that can hurt others.

Follow WHS instructions, policies and procedures.

Calls for accountability in the workplace are not unusual. In fact, it is a concept familiar to workplaces around the world, and has been so for decades since work health and safety laws came into place. That is the crux of the first block of amendments: safety is everyone's responsibility, employers and employees alike. If an employee is deliberately reckless with their own safety or that of fellow employees, why are they not held to the same standard and made liable? While an employer can take all reasonable steps to ensure the safety of workers, the actions of a reckless employee causing the death of another should equally be captured under the legislation of industrial manslaughter.

The second part of our amendment goes to the category of offences in clause 4. The opposition has taken submissions from industry and employer groups and will put forth amendments to this clause, as we are equally concerned that an individual or body corporate will suffer significant and detrimental reputational damage as a result of being charged with industrial manslaughter category 1, despite eventually being found not guilty of this offence. A category 1 charge should rightly be reserved for the most horrific offence that causes death and not result in the unintended consequence of destroying a business that would be found guilty of a much lesser charge of a category 2 or 3 offence.

Our view is that, when an industrial manslaughter charge is brought, the prospect of successful prosecution should be near certainty. We strongly urge members to support these changes to ensure the principle of 'innocent until proven guilty' is maintained and everlasting reputational damage is not caused by bureaucratic overreach. This would ensure that when charges are brought, they are done so with certainty, and potential reputational damage to South Australians and their businesses is limited. This amendment is in line with Business SA's submission, which was sent to the Attorney and, I presume, circulated to other members.

Those are the themes of our amendments and they will be fielded well before the committee stage of this bill. I will leave my remarks there. There will be amendments brought to the chamber during the committee stage and I will talk further to them in due course.

The Hon. E.S. BOURKE (15:54): Every parent of a young person going out to work for the first time hopes that their child will be safe at work. We must put our trust and faith in employers to do the right thing—that our children will not be treated as expendable commodities, but as humans with intrinsic value.

Sadly, too many parents know the pain of losing a child to a preventable workplace tragedy. Andrea Madeley has used her personal tragedy to advocate for workers' safety since the death of her son, Daniel, when he was just 18 years old and working as an apprentice toolmaker. The dustcoat Daniel was wearing got caught in the machinery, pulling Daniel in. I cannot imagine how a mother recovers from that loss and what Andrea has done since that time is nothing less than extraordinary.

It is through the advocacy of Ms Madeley and Pam Gurner-Hall, who lost her partner, Jorge, on the Royal Adelaide Hospital construction site in 2014, that legislation such as this has come about. At the last election, the Malinauskas Labor government committed to making industrial manslaughter a criminal offence. This brings South Australia into line with other states and territories including Victoria, Queensland, Western Australia, the Northern Territory and the ACT.

At a meeting of work health and safety ministers from across the country earlier this year, it was agreed that industrial manslaughter would form part of the model national laws on work health and safety. This bill follows through on that commitment and is drafted to be consistent with other state and territory legislation. A conviction will occur where there is a breach of an employer's health and safety duty through recklessness and which results in the death of a person.

The penalty for an individual is up to 20 years' imprisonment and up to $18 million in fines for body corporates. Each year, around 12 people in South Australia die as a result of workplace injury, with most of these deaths occurring in just three industries: construction, transport and primary industries. Most employers do the right thing and have nothing to fear with this legislation. It imposes no new duties on employers, but simply ensures that there are appropriate penalties when there are preventable workplace deaths through a breach of duty.

Without this law, grieving families must navigate the work health and safety framework and hope for a successful prosecution for the existing offence of manslaughter—something which is difficult when the death is not the result of one particular person's actions but rather a chain of events in a workplace. Changing the law is an acknowledgement of the trauma and loss that families have been through when this kind of tragedy occurs.

It will also have a deterrence effect, emphasising to rogue employers that they will be punished for breaching their work health and safety obligations. This legislation will ensure that businesses at fault receive an appropriate penalty. Extensive consultation has been undertaken in drafting this bill, with two exposure draft bills being released over the last year. Unions, businesses and work health and safety experts have all had input into the drafting of this bill.

I would also like to acknowledge the work of SafeWork SA, which is charged with investigating workplace incidents and its commitment to ensuring South Australian legislation is fit for purpose and meets national standards. Most of all, I commend Andrea and Pam, who have given back so much to their community out of unspeakable loss.

As the Attorney-General has said, every worker deserves to come home safely. No family should have to go through the trauma of losing a loved one to a preventable workplace death. Twelve workplace deaths a year is 12 too many and it is hoped that this legislation will help reduce that number. I commend the bill to the chamber.

The Hon. T.A. FRANKS (15:58): It is with great pleasure that I rise today to speak on behalf of the Greens in support of this bill. In fact, the Greens have introduced this legislation at least four times before in this parliament, and I also recall attempting amendments to the harmonised work health and safety laws in government bills previously.

This bill seeks to capture that very small minority of employers who cruelly and unnecessarily risk the safety of their employees. Putting workers' lives at risk for the sake of cost cutting is unacceptable and the statistics speak for themselves. We need to have higher penalties in our workplace laws to deter negligent employers.

Let's remember, industrial manslaughter means that there has been a death. While we have heard some moralising about how everyone is innocent until proven guilty, I would like to moralise a little about how a workplace death should be treated as a death and given the seriousness that any other death would be given under our laws if it did not take place in a workplace.

South Australia needs industrial relations laws to protect workers and their rights so that they can feel save in dangerous workplaces and be kept safe in their workplaces. Australian workers provide an invaluable service. They deserve to have legislative safeguards. This bill introduces important reforms to improve the safety of our state's workplaces through the principle of corporate criminal responsibility. The primary objective of this bill is to ensure that culpable employers are held responsible for their actions.

The offence of industrial manslaughter covers the situation where an individual's or corporation's conduct causes the death of a worker, where that individual's or corporation's recklessness or negligence caused serious harm and death to that worker. Companies and employers must do everything they can reasonably do to prevent workplace injuries and deaths. Through this legislation we will seek to ensure that culpable employees are held responsible for deaths they cause if they act in a reckless or negligent manner. If they do not take responsibility for the safety of their workers, penalties will apply.

The Greens believe that employers need to take their duty of care to their employees seriously. Every single workplace death is significant. Each one is a tragedy that affects the lives of many forever. If an employer is negligent or recklessly indifferent to exposing workers to serious risk to their safety and someone dies as a consequence, this should be recognised by our laws as a criminal offence. Such an offence is not unprecedented. It exists in other legislation such as that of Queensland, the ACT and the United Kingdom. As legislators, it is our responsibility to ensure that employers have a genuine incentive to provide a safe workplace. We have many, many carrots in our system, but we do need a few sticks.

Everyone should be safe at work. Everyone deserves to come home safe. Everyone deserves to come home from work and be protected from industrial disease or harms, but far too many have not come home and far too many have come to harm. In 2022, 169 people lost their lives at work. In 2021, that number was 194. That is 194 families, loved ones, with loss and grief. That is 194 lives ended.

In February 2019, Safe Work Australia made public its review of Australia's occupational health and safety laws. This review, conducted by Marie Boland, made 34 recommendations, one of which was to introduce industrial manslaughter laws right across Australia. Our own parliament in South Australia has made these same recommendations. The occupational safety, rehabilitation and compensation committee undertook an inquiry into the law and processes relating to workplace injuries and death in South Australia. In this inquiry, the committee 'gave close attention to the offence of industrial manslaughter' and found:

Based on the evidence presented the Committee concluded that an offence of industrial manslaughter should be introduced in this State.

Recommendation 20, as part of this report, was that South Australia introduce an offence of industrial manslaughter. That report was in 2007, and yet here we are in 2023 still without an offence of industrial manslaughter. South Australian workers deserve better. The South Australian parliament will now do better. It is time we treat industrial manslaughter as the abhorrent offence it is.

With that, I want to reflect, as the Hon. Emily Bourke has done, on the impact and the work of Andrea Madeley and Voice of Industrial Death and the particular connection that I have had over the years with Pam Gurner-Hall, who I have come to know because she lost Jorge Castillo-Riffo on the site of the new RAH. I am sorry that this does not bring him back, Pam, but I know that it goes a long way to knowing that the legacy going forward means that we have better laws and hopefully fewer workplace deaths.

The Hon. R.B. MARTIN (16:04): Every South Australian worker, and every worker across the nation, should be able to feel confident, when they leave for work each day, that they will return home safely. But in the cases of more than 100 workers over the last 10 years in South Australia alone, they left for work and did not return home at all.

Tragic accidents happen, but far too many workplace deaths are the result of negligence or recklessness that could have been prevented. This bill delivers on our government's election commitment to create an offence where a person can be convicted of industrial manslaughter if they breach a health and safety duty recklessly or with gross negligence, and this causes the death of another person in the workplace. The maximum penalties this bill introduces are a fine of up to $18 million for companies and imprisonment for up to 20 years for individuals. Our intention is that these meaningful, high-stakes penalties will help to deter and stamp out unacceptable workplace health and safety practices.

It is very reasonable to expect businesses and individuals whose dangerous actions, or indeed lack of positive actions, are found to have caused a workplace death, to be subject to penalties which come close to befitting the gravity of the wrongdoing. These penalties will also go much further towards recognising the trauma and loss suffered by the families of people who have died due to recklessness or negligence in their workplace health and safety. It is a recognition that those families greatly deserve.

This bill is a product of extensive stakeholder consultation, and brings South Australia into line with the other jurisdictions that have introduced industrial manslaughter laws. The substance of the bill is consistent with what has been implemented in other states and territories. It is important to be clear that this bill does not introduce any new legal obligations on employers. Workplaces that are appropriately conscientious about health and safety have no cause for concern. The overwhelming majority of businesses in South Australia are doing the right thing, but those who are not deserve to be held to account.

In my time as a union organiser I was regularly involved with health and safety training, and it is an issue close to my heart. I believe that safety is a fundamental right for workers, and I am proud that the Malinauskas Labor government is taking steps to make sure that South Australia's laws recognise the crucial importance of health and safety in the workplace and the grave error of reckless and negligent practices that put workers' safety at risk.

I applaud the advocacy of members of our community who suffered the tragic and preventable loss of their loved ones, and I recognise the many hundreds of other South Australian families who have suffered such losses over our state's history. May the day soon come when no more families have to know that particular agony. I commend the bill.

The Hon. S.L. GAME (16:07): This bill seeks to introduce legislation to make industrial manslaughter a criminal offence, with a maximum penalty of up to 20 years in prison and significant financial penalties for companies. Section 30A introduces an offence of industrial manslaughter, which does not currently exist as an offence, where reckless or grossly negligent conduct results in a workplace death.

There is an amendment to the threshold for a category 1 criminal offence under section 31 of the bill. This is an existing offence that applies where a person recklessly exposes a person to risk of death or serious injury or illness. The amendment introduces a threshold of 'gross negligence' in addition to recklessness.

I have met with industry groups who have expressed concern that a threshold for industrial manslaughter should be solely classified as 'reckless', as it is the highest legal threshold to cross and consistent with the highest offence under our current work health and safety framework for a category 1 offence. Category 1 would then become the next step down using the wording proposed in the draft bill:

(i) engages in the conduct with gross negligence; or

(ii) is reckless as to the risk of an individual of death or serious injury or illness.

There is industry concern that these legislative changes could inadvertently and quite unfairly damage the reputation of a business should a SafeWork officer mistakenly charge for industrial manslaughter in the knowledge the business could still receive a downgrade to a category 1, 2 or 3 offence under section 31 of the act. In this scenario, a business is likely to suffer significant damage to its reputation in the eyes of the public, regardless of the still to be proven facts, any appropriate measures they had in place, or mitigating circumstances.

The Hon. I. PNEVMATIKOS (16:09): I rise today to speak in support of the Work Health and Safety (Industrial Manslaughter) Amendment Bill. It delivers on the government's election commitment to introduce an offence of industrial manslaughter in South Australia. This bill has been a long time coming. The issue of industrial manslaughter has been brought before this parliament a multitude of times, and after hearing the opposition's contribution, I understand why.

On average, at least 12 South Australians die every year at work. Roughly three-quarters of these deaths occur in just three areas: primary industries, transport and construction. Everyone who goes to work wants to be able to return home alive, and every worker deserves the right to come home safely.

With this bill, companies and employers will no longer be able to put profit and cost cutting above workers' lives without penalty. A person can be convicted of industrial manslaughter if they breach a health and safety duty, either recklessly or with gross negligence, and this causes the death of another person. This includes the primary duty of ensuring, as far as reasonably practicable, the health and safety of workers they engage.

The maximum penalties are a fine of up to $18 million for companies and corporations, and imprisonment for up to 20 years for individuals. If an employee knew, ought reasonably to have known or was recklessly indifferent to a work safety risk leading to the death of a worker, they should face the full extent of the law.

Commonwealth, state and territory work health and safety ministers agreed earlier this year that industrial manslaughter will form part of the model national laws. This bill brings South Australia in line with other jurisdictions, including Western Australia, the Northern Territory, Queensland, Victoria and the ACT, which have introduced industrial manslaughter laws.

All aspects of our criminal law are built on an approach of deterrence. As such, the objective of this bill is preventative rather than punitive: to prevent accidents from occurring by deterring unsafe work practices. This can only be done when someone is held responsible and accountable for a workplace death. The bill's purpose is to recognise the significant and traumatic loss suffered by families of victims. Having represented a number of families of victims, I appreciate the distress, trauma and ongoing problems this causes.

The Attorney-General, in his second reading explanation, specifically recognised the advocacy of both Andrea Madeley and Pam Gurner-Hall in this area. Both have experienced unspeakable loss as a result of workplace deaths and have used these experiences to passionately and tirelessly advocate for workplace safety.

This bill does not introduce any new legal obligations on employers. Instead, it ensures there is an appropriate penalty when those obligations are breached. We are not talking about serious injuries that workers may suffer: maiming and disability. We are talking about those who are dying. We are not talking about those who have a life sentence.

While accidents do happen, the first responsibility of every employer is to ensure that they provide a safe workplace. The overwhelming majority of businesses in South Australia do the right thing by taking the health and safety of their workers into consideration. This bill sends a clear message to any employers who are reckless or grossly negligent with their workers' health and safety: they will be held to account.

Debate adjourned on motion of Hon. N.J. Centofanti.

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