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Wednesday, 9 March 2005
Page: 10


Mr ANDREWS (Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service) (9:36 AM) —I move:

That this bill be now read a second time.

The amendments in this bill will reinforce and underscore the Commonwealth’s regulatory approach to workplace health and safety, which is to ensure that the main focus should be on preventing workplace injuries, rather than punishment after the event.

On 1 March 2004, a new part 2A of the Australian Capital Territory (ACT) Crimes Act 1900 came into operation. This part contains two new criminal offences of industrial manslaughter: one for employers and one for senior officers. The ACT law imposes a criminal liability on employers and senior officers after the death of a worker. This is inconsistent with the overall objective of an occupational health and safety legislative framework, which is to prevent workplace deaths and injuries. It is also contrary to the unified and integrated OHS legislative system established under the internationally recognised Robens model which all Australian jurisdictions have adopted, including the ACT.

The bill would amend the Occupational Health and Safety (Commonwealth Employment) Act 1991 to insert a new section 11A. This new section would provide that part 2A of the ACT Crimes Act and any other similar industrial manslaughter laws which might be enacted by a state or territory and that are prescribed in the regulations will have no effect to the extent to which they seek to impose criminal liability on an employer, employing authority or employee covered by the act in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person.

Without the criterion of prescribing other state and territory laws, the new section could catch general criminal offences, such as manslaughter, murder and culpable driving. This would include, for example, the offence of manslaughter in section 15 of the Crimes Act 1900 (ACT). However, it is not the Commonwealth’s intention to exclude employers, employing authorities or employees from the application of these general criminal laws. Similarly, the Commonwealth does not intend to affect the concurrent operation of state or territory laws which promote occupational health and safety provided for in section 4 of the act.

The Commonwealth only objects to a specific type of state and territory laws which purports to impose criminal liability in respect of a person’s death that occurs during, or in relation to, the person’s employment or provision of services to another person—that is, laws like part 2A of the Crimes Act 1900 (ACT). Only these particular types of laws would be prescribed under the new section 11A.

The bill will apply to any conduct of a Commonwealth employer, employing authority or employee occurring on or after 1 March 2004, the day on which the ACT industrial manslaughter laws commenced.

The bill will remove the uncertainty facing some Commonwealth employers and employees that has arisen from the ACT legislation. The amendments contained in this bill will also provide certainty for Commonwealth employers and employees should other Australian jurisdictions enact similar industrial manslaughter legislation.

Workplace health and safety is an important issue for all Australians. The promotion of injury prevention and the best occupational health and safety practice is a key priority of the Australian government. The government has demonstrated this commitment by initiating the development of the National OHS Strategy and encouraging its adoption by all Australian governments and peak employer and employee bodies. For the first time in Australia, this strategy establishes an integrated approach to strive for workplaces free from work related death, injury and disease. In particular, targets have been set for significant reductions in the rate of work related deaths and injuries.

The Occupational Health and Safety (Commonwealth Employment) Act 1991 is the legislative basis for the protection of the health and safety at work of Commonwealth employees in departments, statutory authorities and government business enterprises. The principles underpinning the act emphasise that workplace health and safety is a partnership between all parties in the workplace, with a particular focus on prevention.

The government’s commitment to prevention of workplace injuries and deaths is demonstrated by amendments to the act in 2004. These amendments ensure that obligations in the act are underpinned by a strong and effective compliance and enforcement regime. They provide for a mix of preventative, remedial and punitive civil and criminal sanctions, including higher penalty levels, to assist all parties to meet their workplace health and safety obligations and provide appropriate sanctions where these obligations are not met. This is the best way to improve workplace safety.

Industrial manslaughter laws, on the other hand, place employers and employees in an adversarial environment and create a culture of blame. This inhibits their ability to work together to eliminate workplace safety hazards and prevent the unwanted consequence of endangering workplace safety. When the tragedy of a workplace death occurs, all parties need to be able to work cooperatively to understand why it happened so that it will not happen again.

The ACT legislation singles out employers for punishment after a death. The legislation neglects the potential involvement of a range of other parties such as other employees, manufacturers, and suppliers of plant and equipment. This creates inequities and gaps in attributing responsibility in the unacceptable event of a workplace fatality or serious injury, and wrongly presumes that employers are solely responsible for all workplace injuries and deaths.

The ACT industrial manslaughter legislation also duplicates the existing offences already available under the ACT Crimes Act and ACT OHS legislation to deal with the involvement of employers and employees in workplace deaths or serious injuries.

This bill reflects the government’s commitment to achieving safer workplaces and ensures the focus of occupational health and safety is on prevention of a workplace injury or fatality rather than punishment after the event.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr McClelland) adjourned.