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Thursday, 13 October 2011
Page: 11834

Mr CREAN (Hotham—Minister for Regional Australia, Regional Development and Local Government and Minister for the Arts) (12:30): The government opposes amendments (2) to (7) moved by the member for Melbourne. I do note that the Senate Standing Committee on Education, Employment and Workplace Relations has also recommended a similar amendment to the bill but, again, this is not what the committee determined.

The model Work Health and Safety Bill which was approved does not include gross negligence in the category 1 offence. I use the word 'gross' because that was the context in which it was considered. I note the change in the amendment that is being proposed. But in not including it, that is consistent with its earlier decision that gross negligence offences should be dealt with outside the model act by local criminal laws and manslaughter offences.

If clause 31 were amended to include gross negligence it would overlap with local general criminal laws where death or serious injury or illness results. Moreover—and this is an important point—such an amendment would go beyond local general criminal laws in that it would apply to conduct that exposed an individual to risk of death or serious injury or illness even where the conduct did not actually result in death or serious injury or illness.

It is appropriate that there be sanctions in relation to negligent conduct that exposes an individual to a risk of death or serious injury or illness. However, it is also equally appropriate that a serious offence, such as a category 1 offence that attracts a jail term, include an element of intention. Conduct that exposes an individual to whom a health and safety duty is owed to a risk of death or serious injury or illness because of the person's gross negligence would constitute a category 2 offence under clause 32 of the bill.

Amendments (4) through (7) are not necessary because they seek to amend the provisions in the bill that enable the relevant fault element for an offence to be attributed to the Commonwealth or to a Commonwealth public authority. It is not necessary in the context of proving criminal negligence, where only physical acts and omissions are relevant. And so we oppose this group of amendments.

Question negatived.