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Thursday, 24 November 2011
Page: 9547


Senator WRIGHT (South Australia) (15:45): In speaking on the Work Health and Safety Bill 2011 and a related bill, I wish to express our extreme disappointment in the rejection by the lower house of a number of important amendments to this legislation which would have strengthened the protections available to Commonwealth employees and brought them into line with the protections available to workers in other jurisdictions, particularly New South Wales.

My Greens colleague, Adam Bandt, moved three groups of amendments when this bill passed through the House of Representatives, each of which failed to receive the support of either the coalition or, perhaps more surprisingly, Labor. The first of these amendments sought to bring the Commonwealth bill in line with its New South Wales equivalent by giving unions the power to initiate prosecutions with respect to category 3 offences, which are those at the lower end of the offending spectrum.

Trade unions have been able to prosecute breaches of workplace health and safety laws in New South Wales since the 1940s. In that time, union prosecutions have been rare. However, when they have been taken, they have been very effective in strengthening the safety standards for workers and for the community at large. That is why, when the model work health and safety laws came to be considered by the New South Wales parliament earlier this year, my New South Wales Greens colleague, David Shoebridge MLC, moved to ensure that union prosecution rights were retained in that state.

Why are union prosecution rights so important? Because the union right to prosecute ensures that employers respond more quickly to demands from their workforce for safety improvements. This right acts as a powerful incentive for employers to protect their workers' health and safety. Take, for example, the very successful prosecutions taken last decade by the Finance Sector Union, which were directed at reducing armed robberies in New South Wales bank branches. Tired of seeing not only their members but also members of the public both physically and psycho­logically injured as the result of armed hold-ups, the FSU decided to take action. As a result of this action, the major banks in New South Wales were forced to invest a significant amount of money—in the vicinity of $100 million—in order to improve safety standards. This included the installation of full-height anti-jump barriers, ATM bunkers and digital controlled circuit TV with back-to-base monitoring. The result has been a dramatic fall in armed robberies, from 102 in 2002 to just four in 2010. It is a shame that because of the failure of the lower house to adopt my colleague's proposed amendments, such court actions will not be available to unions seeking to improve the safety conditions of Common­wealth workers. It is a particular indictment of the government, whose New South Wales Labor colleagues rightly supported the retention of the union right to prosecute in that state.

The second group of amendments proposed by my colleague Adam Bandt in the lower house would have introduced a test of 'gross negligence' into the definition of a category 1 offence. Category 1 offences are the most serious of the three offence categories contained in the bill. In its current form, a category 1 offence is made out if a duty holder, without reasonable excuse, engages in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness, and the person is reckless as to the risk of death, serious injury or illness. In this context, proving recklessness would require proof that a defendant charged with a category 1 offence knew that death or serious injury was a probable or possible consequence of his or her conduct but consciously chose to disregard the risk. It is a subjective concept for which proof of awareness of risk is essential. So, for a category 1 offence to be made out, it must be proven that the defendant foresaw that death or serious injury was a likely result of their conduct.

In contrast, criminal negligence, or gross negligence, as proposed by Adam Bandt, is not concerned with the defendant's actual state of mind. Rather, culpability is determined objectively by referring to what the reasonable person, in the position of the defendant, would have known and done. If gross negligence were to be included in the test for a category 1 offence, it would be enough to show that the risk existed and that the accused's conduct involved a great falling short of the standard of care required of a reasonable person.

The National Occupational Health and Safety Review Panel, created in 2008 to report to the Workplace Relations Ministers' Council on the optimal structure and content of model OH&S laws, concluded that both 'recklessness' and 'gross negligence' should be included in the test for a category 1 offence. This recommendation was overturned by the Workplace Relations Ministers' Council. The rejection by the lower house of the 'gross negligence' test is a rejection by the government and by the coalition of best practice safety standards in the workplace.

The third group of amendments proposed by my colleague Adam Bandt would have brought the provisions relating to discriminatory conduct in the Work Health and Safety Bill into line with the corresponding provisions in the Fair Work Act. Clause 104 of the bill imposes civil and criminal liabilities upon a person who engages in discriminatory conduct for a prohibited reason. The purpose of this provision is to provide protection against adverse treatment to those individuals who seek to enforce or act in accordance with their health and safety rights under the bill. It would protect, for example, an employee who raises concerns about safety within the workplace or who nominates for a position as a health and safety representative.

In its current form, the bill only imposes criminal liability if the prohibited reason is the dominant reason for the discriminatory conduct and, in the civil sphere, if the prohibited reason is the substantial reason for the discriminatory conduct. The purpose of the proposed amendments was to remove the substantial and dominant reason tests and instead impose liability for any discrim­inatory conduct in which a prohibited reason plays any role at all in the decision-maker's mind.

I note that the second and third sheets of amendments moved by Adam Bandt in the lower house would have directly enacted recommendations made by the Senate Education, Employment and Workplace Relations Legislation Committee in its report on this bill, tabled in August 2011. This committee was chaired by Senator Gavin Marshall and membership of the committee included two of his Labor colleagues. The failure of Senator Marshall's lower house Labor colleagues to pass the second and third groups of amendments I have discussed today is hard to understand. It is unfathom­able to me why, in the lower house, Labor voted against the very recommendations made by their Labor colleagues in the Senate through their involvement in the Education, Employment and Workplace Relations Legislation committee's majority report.

The Greens will not be opposing the passage of this bill through the Senate in its current form; however, we ask the Senate to note the wasted opportunity these rejected amendments represent.