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Education and Employment References Committee
29/08/2018
Industrial deaths in Australia

GALLINA, Mrs Susan, Private capacity

GURNER-HALL, Ms Pam, Private capacity

LOGAN, Mrs Edith, Private capacity

LOGAN, Mr Keith, Private capacity

MADELEY, Ms Andrea, Founder, Voice of Industrial Death

SALVEMINI, Mr Lee, Private capacity

Committee met at 10:01

CHAIR ( Senator Marshall ): I declare open this hearing of the Senate Education and Employment References Committee's inquiry into the prevention, investigation and prosecution of industrial deaths in Australia. I welcome everyone here today. This is a public hearing, and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Australian Parliament House website. Before the committee starts taking evidence, I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee. Such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The committee generally prefers evidence to be given in public but under the Senate's resolutions witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken, and the committee will determine whether it will insist on an answer, having regard to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course also be made at any other time.

I would also ask witnesses to remain behind for a few moments at the conclusion of their evidence in case the secretariat need to clarify any terms or references used. I remind people in the hearing room to ensure that their mobile phones are either switched off or turned to silent. I now welcome Ms Andrea Madeley from the Voice of Industrial Death. I also welcome representatives from a number of VOID families, Mr Lee Salvemini, Mrs Edith Logan and Mr Keith Logan, Mrs Susan Murphy Gallina and Pam Gurner-Hall. Do you have any comments to make about the capacity in which you appear?

Ms Madeley : I'm founder of VOID and a family advocate.

Ms Gurner-Hall : I'm the widow of Jorge Castillo-Riffo. We've just finished the inquest yesterday.

Mr Salvemini : My son was killed in a boat accident in 2005.

Mrs Logan : I'm here representing widows and as part of VOID.

Mr Logan : I'm here because my father was killed in an industrial incident, and also as a member of VOID,

Mrs Gallina : I'm here, again, as a member of VOID and also representing my family. My brother, Brian Murphy, was killed in an industrial accident in 2006.

CHAIR: Thank you. The committee have received your submission, and we thank you for that. We now invite you to make some opening remarks to the committee, and that will be followed by some questions.

Ms Madeley : Thank you. First of all, I thank the committee and all those who pushed so hard to make this inquiry happen. It is long overdue. It is an area of contention, I feel, in the area of industrial relations. That is uncomfortable, in terms of the emotion surrounding the context of a death, in any shape, but my experience and my feelings have changed since my son was killed in 2004. When that happened, my feelings were that laws were inadequate, that we didn't have penalties that matched the severity of somebody causing a death. That is why VOID was started, because we didn't really have a voice. I didn't.

You very rarely heard workplace deaths being discussed in 2004. As a result we started to meet each other and talk to each other and realised that our experiences were predominantly the same. We were feeling outcast and not part of the process. The loss is extraordinary. I think any loss is extraordinary. It's difficult. It's heartbreaking. But there is something that goes beyond grief here. That's where we talk about industrial relations and we talk about the political side of a workplace death, the political aspects of work health and safety and the laws that control this, the political aspects of worker's compensation.

All of this comes down to the posturing of very powerful, conflicting views—the union movement that attempts to assist the worker and the very powerful business lobby that tends to the interests of the business sector. And somewhere in the middle, here, there are a wealth of voices that are really battling to be heard. The only time you may get the opportunity to be heard is when your particular story makes the news. They rarely did in 2004. They certainly do more often now, but it is in a vacuum there, in the sense that it becomes old news very quickly. That in itself is hurtful, because the reality is that we don't know what this journey is like for several years. The investigations take years, and, unfortunately, by the time you have a feeling for what is wrong, there is no longer much interest in your story.

The issues I've come across through meeting families, here, have been so vast. That is why you have a 50-page submission there. The opportunity to let you know was too great to miss and there was just too much information that needed to be shared. As result of the outcome of my son's death I made the decision to study law, with the sole focus on this area, to find out why it hurts people so badly. Are we any different from anybody else who suffers a loss? That's where we come back to the difference between grief and battling bureaucrats and a criminal justice system that, I personally feel, is inept at dealing with corporate liability.

My reasons there are in the submission. I do not think that the Rubens model of work health and safety was ever based on anything beyond encouragement. It was a model designed to lift and encourage employers, not to enforce laws, and we see that today, still. The guiding principles, even today, on enforcing work health and safety laws really are more about encouraging and educating. I don't have a problem with that as long as we're not treating the people that are suffering in the process like outcasts. Their loss is virtually ignored unless you happen to be a financial dependant. I don't think there'll be anybody on this table that has said that their journey has been anything but appalling. My position here is that we have to keep agitating this until we get to a point where we see some genuine change and give some rights back to those that are actually suffering loss here.

Mr Salvemini : I'll introduce myself. I'm a retired commercial fisherman of 45 years in South Australian waters. I hold a master 5 certificate of service, a marine engine driver grade 1 certificate of service, and also a radio operator's licence. Jack was killed in a work-related accident on an 18-metre shark fishing boat on 1 November 2005. Jack was a well-trained and experienced fisherman coming from a fishing family that started in 1900 out of Port Adelaide. He was a fifth generation fisherman of the Salvemini family in Australian waters. Jack started fishing with me in 1988 and fished with me for 11 years.

When we were first told about the accident and how it happened I didn't know what to believe. I knew these shark reels that he'd been killed on had been operating for 40 years and no-one had ever lost their life on a shark reel in Australia. It took 3½ years before it got to the South Australian industrial relations court. The trial went on for another two years. It was in those two years of the trial that I started to hear things that did not make sense. The investigation started off with the Western Australian police meeting the boat at Eucla and taking the body ashore at 6.30 pm that night. There was no investigation by the Western Australian police. By 9 pm that night the investigation had been handed over to the South Australian police. There was no investigation by South Australian police. By 3 pm the following day the investigation was handed over to SafeWork SA. The investigation into Jack's death was described by shadow Attorney-General Vickie Chapman in 2017 to be sloppy at best, and that a coronial inquest was 10 years overdue. It was only because of my past experience in the fishing industry that I've picked up on the many discrepancies and contradictions in the trial and investigation. I believe that the only way this mess could be sorted out was by a coronial inquest. The coroner refused to hold an inquest, despite well-written and well-argued letters by Andrea Madeley, founder of the VOID, the police complaints authority, the Hon. Susan Close, our local MP and meetings by myself with social workers at the Coroner's department. They all believed there were grounds for a coronial inquest.

The Coroner remains adamant that an inquest is neither necessary nor desirable. I disagree with the Coroner that it is not necessary to hold an inquest. I strongly believe the only way that we'll get answers is through a coronial inquest. I had the support of shadow Attorney-General Vickie Chapman since 2014 for a coronial inquest and a Court of Marine Inquiry until March, when Vickie Chapman became Attorney-General, did a backflip and slammed the door in our face. My push for an inquest is still ongoing. I don't know how much longer I can go on. I am now 72 years of age. About six or seven years ago my doctor advised me to back off and that it was affecting my health. Two years ago I had a stent put in to unblock my main artery, and I was told that it was stress related. I've got some unanswered questions. What I wanted to ask was why the skipper and the crew were not tested for drugs and alcohol when the boat arrived at Eucla. Jack tested negative to drugs and alcohol. Why was the boat not cordoned off as a crime scene? Why was the prohibition notice revoked with nothing being done to the boat after the accident? Why were there five different positions given where the accident happened? Why were there two different times—10.30 am and 4.30 pm on the day the accident happened? Why did the coroner give the wrong position on the death certificate? Why did the first autopsy report from the Coroner's department state that Jack had been caught by the foot? A replacement autopsy report from the Coroner's department 14 months later stated that Jack had been caught by the neck. Why does the coroner continually refuse to meet with me? It is almost 13 years since my son lost his life and there is still no justice. Thank you.

Mrs Logan : I've always said that people don't die because of paper cuts. It only happens to those salt-of-the-earth workers who put their lives on the line each and every day. If a fatality happened to a family member of a politician/CEO/manager et cetera, the laws would be changed in next to no time, as it would impact on themselves and their families. Then they might realise what we go through.

I lost my husband nearly 19 years ago in a sawmill accident. Because he worked alone the investigation concluded that he had lost his footing on a slippery slope and fallen into part of the machine, which was totally unguarded. I believe that nothing much was ever said about the installation of safety equipment and devices following a fatality. Safety guards and other guards were installed just after the accident and were removed not long after, after management and the workers had a meeting during which it was decided, without official approval, that these devices were holding up production.

My son, besides losing his dad, was working at the new Royal Adelaide Hospital in a supervisory position at the time when two fellow workers were tragically killed. So he has experience with both sides of the coin. I just wish that those in power could understand the utter heartbreak and desolation that comes with an industrial fatality. Maybe then we will get fairer laws and proper outcomes. My husband's employers were found guilty and fined the sum of $34,000—not much for a man's life. Life has not been easy for me, but I've battled on as we widows do. I have finally admitted defeat and I've put our property on the market as I can no longer deal with the day-to-day running of the place.

I'm not quite sure if the culture of investigation into industrial fatalities has changed any, but it sure as heck needs to. I remember being told by the employer's insurance company that they could not make any decisions until the death certificate was issued because my husband could have been drunk, drugged or even committed suicide by jumping into the machine. My husband wouldn't even take an aspirin for a headache. He didn't drink alcohol and he certainly was not suicidal. The final death certificate was issued two years and one day after the fatality. Another aspect was a necessity for yearly reviews of my income. At the first annual visit from an insurance assessor I was subjected to rude and unfair comments which were totally unnecessary. I was asked why I was still on my own and not remarried; why there were men's clothes hanging on my clothesline; and whose car was standing idle outside the garage; and more along the same lines this line of questioning continued each year until I had a meeting with this person in my lawyer's office. Only then did the harassment stop. The same can be said for the court case itself, with the industrial magistrate reminding the employer's legal team that my husband had a name and to use it instead of 'the deceased'.

Counselling was offered and accepted by my son and me. The psychologist was given one hour with us both on the day after my husband's death. I had to see her again a few years later. She told me that she wished she could have spent more time with us, as she could see that what we were experiencing was very raw and emotions were running very high. I know that it's nearly impossible to eliminate industrial fatalities, but we could and should try and lessen the impact that these incidents have on the families. After all, we never know who's going to be next to die in the workplace.

Mr Logan : I am the only son of Max Logan, who was tragically killed in a workplace incident at Meadows on 22 November 1999. He was 52. Like others that you will meet today, we are all members of an exclusive club we wish not to be a member of. We all have one thing in common in this room, and that is the total grief of losing a loved one through an accident which could have been avoided. My dad was a debarker operator. He processed the logs as they came in from the forest. His job was to strip the logs of bark, turning them into a cleanskin log by removing the bark with a machine. It was a job he'd done for quite a while. Dad was doing his normal clean-up duties as part of the process. It was a simple job, using a long handled scraper to pull the build-up of bark into the waste conveyor system. The waste conveyor system was a chain-driven assembly with a plastic flap that runs in gutter about 18 inches wide. That then pulled it into another bin, which disposed of it. He would do this several times during the shift to enable the operations to run smoothly and avoid lengthy delays in production. Who would have thought that performing this simple operation would have killed my dad? Well, it did. He was pulled into the conveyor system and was crushed. His body was found at the top of a discharge sheet by his fellow worker. I can only imagine what Ritchie went through that day.

So those memories you might have, the time and place memories, like you remember what you were doing when you heard about 9/11—driving the car or maybe watching your football team win a grand final—unfortunately my memory is about my dad: receiving a phone call from a long-lost friend telling me that my dad was involved in an accident and I needed to come home. I had established myself in Roxby Downs and was living there since 1995. The accident occurred in 1999. This is one of the memories that I think about every day. I miss you, dad. While I was building my life, my dad's life was taken from him for a measly $30 an hour. Dad only returned to his work for holidays at Christmas time so he and mum could go on Christmas vacations. He actually hounded the sawmill for a job because it was close to home. They gave him the job, to shut him up I'm sure, but they soon realised he was a hard worker. He didn't sook or complain. He was one of those old blokes who just got on with it. My dad never saw my first house. He never spent one second as a grandfather. He never slowed down to look forward to retirement. He just never came home from work. People say, 'You'll get over it.' Really? I deal with my dad's death most every day and I'm learning to deal with it. But I will never forget it. With reminders from my time at the new Royal Adelaide Hospital, I did step away from the industry, as I felt the industry was not worth it. I took a couple of years off. I've only returned to the construction industry again in the last 15 months.

Where are we now with workplace safety? No different, I feel. So many systems, rules, regulations, laws, and at the end of the day money, production and program rules everything. They are the drivers. All companies preach people, culture and values. But I really question it when a safe work method statement is a legal document that can be produced as evidence in a prosecution or trial, when all we're trying to do is do our job, make an income and have a life. These systems are implemented by legal teams to lay blame, not to keep the workers safe. I can't remember as a young apprentice ever hearing about a fatality at work. In fact I'd never heard of fatality until I was in my late twenties. It was a high-risk job at a mine where a young man was blown up charging a stope with explosives underground. Imagine the systems in place for an activity like that. It is a horrendous feeling to go through what all of us have gone through and to have to deal with a loved one being killed at work. It is still raw today, as it was back in 1999.

Mrs Gallina : I'm here to speak about my brother, Brian Murphy, who was killed in 2006 in a workplace accident. He was 34 years old. Brian had been an army man. He'd been a signalman, a driver, he'd even been on the UN peacekeeping force in Cambodia. He was experienced and tough and he was trained. He left the Army, came home and was working as a driver, a tyre fitter. He didn't take chances. He wasn't that kind of man. He had been a US Army police officer. He drove his truck to the site that day and got out. He was standing alongside the truck when the forklift driver lifted the load from the opposite side. It fell completely on top of him, killing him instantly.

My main points that I want to make today are very much about process. My father sits behind me today. Being siblings, we were very much left out of any process relating to him. Every contact went through his partner, and there had been family difficulties with those relationships, which meant that much of the information did not get filtered to us.

From the time of the accident it was hours before we were notified. I heard it on the radio prior to even knowing that it was him. I heard someone had been injured/killed. When I got the call from my sister, I didn't hear, 'There's been an accident.' I didn't hear 'Something's happened.' I heard, 'Brian is dead'. I don't think that that's something that I've ever been able to come to terms with.

The process of that day then evolved into me going back into a shopping centre where my dad was shopping, crying, trying to find him and eventually locking eyes with him and telling him the news that my brother was dead. We held onto each other as we walked out, confused, without knowing any of the details. We went home and we waited and nobody contacted us. We knew nothing. We didn't know where he was. Where was his body? What was happening to him? Was he dead? I spoke to him the day before, and, between that contact and now, I never saw him. We were never given an opportunity to know where he was or to go and see him or to have any kind of ability to have closure on the fact that, 'No, he actually is gone.' I don't think my mind has ever been able to make the connection of having spoken to him and then just being told he's dead. Nothing else ever occurred in between that. All of the information went through his partner who obviously fell apart and was unable to really do anything. So it was our job, my dad and I, to go to the school and pick up his seven-year-old child and deliver the news to him as well. When I arrived there, I'll never forget, the principal said to me, 'Oh, I heard that on the news. Was that him?'

What followed was a process that I could honestly not describe as anything other than soul crushing. We were constantly told that his partner was the next of kin at that time and therefore they really didn't have to deal with us. We hung for information. We waited. We tried. We wanted to know what was happening. We were desperate to try and get any tidbits that we could, because we just didn't know what was going on. The notification process has always been a big issue for me. In my mind, I feel that the very least that could be done when a death occurs is for someone to identify who needs to be told and who needs to be spoken to. For goodness sake, that's the least they could do. His sister, his father and his mother deserve to be told he is dead—sorry, I still feel quite emotional about that.

There was ongoing confusion. We then went through the court process where, once again, we were not really to be notified. We basically found out about most of what was happening by calling and by trying to find out. We did have someone at Safe Work who was good about passing on information to us, but it was with the undertone, 'I'm telling you this; however, our obligation is to tell the partner.' At that point relationships with the partner had somewhat fallen down, so information was not coming through at all.

The court process was difficult. There were a lot of decisions made on our behalf, about knowing some of the details, because they felt they were too disturbing. I feel that we could have at least been asked whether we felt we needed to know some of that information. I don't think it was their decision to decide that for us. I think every person should decide what they need to know about the situation, rather than be told it. It was difficult to sit and listen to the lawyer try to claim he was in the wrong, at which point even the owner of the company said to the lawyer: 'Just calm down. This is too much.' They were found guilty. The fine was around $50,000. They went back to work. We went home. There were issues of compliance. They admitted that they had not done things that they were supposed to do. They were told off, and they returned to work.

One of the main things that I've had a problem with is that I drive past that site all the time, and I would have given anything for that company to have erected some kind of memorial—a cross, a sign, a plaque, anything. If somebody is killed in an accident, they put a cross at the place for people to be able to put something there. With some of the other deaths, there's been something put there. I just feel, as part of that compensation payment, that there should be some kind of mark. Whether it's possible or not, they should be forced to make some kind of offer to the family—'We will mark this spot as where this person lost their life, and allow you to have that.'

In summing up, the main points that I wanted to talk about overall were the issues around notification, the issues around that court process, the issues around compliance and the fines—which Andrea already touched on, so I won't go into that—and the issues around the obligations on the business owners to do the right thing, even when they're not necessarily compelled to by the court.

CHAIR: Thank you. Pam, we've received your submission too, thank you.

Ms Gurner-Hall : Thank you very much. I'll try and keep this a bit shorter than the submission. I am the widow of Jorge Castillo-Riffo, who was killed on the new Royal Adelaide Hospital site on 27 November 2014. Yesterday I stepped out of the last day of a coroner's inquest, which had gone for three weeks, was then postponed for three to four months and then resumed in this last fortnight.

In my opening statement, I'd like to say that I think it's obvious that you've heard not just from this group of people but from others that the key difference between even an accidental death and a road death is the level of horror that's involved in a workplace accident. There are very few workplace accidents which don't involve some sort of absolute horror. It's something that we as survivors have to manage right from the beginning. It's not just the loss and the terror but the horror as well. Quite often, that's the thing that lingers on for many years, and I'm sure that you've heard that. In talking about how things are dealt with, if a soldier is killed, even in a friendly-fire exercise, there's quite a lot of notice taken and respect given for the fact that that soldier has died in service. But if a worker is killed on a site, the very first reaction of the company—particularly if it's a large corporate company, as it is in the case of my husband's death—is that every system available comes into play to bury the evidence.

Jorge was killed on a scissor lift. He was trapped underneath the ledge of a low-hanging roof, and the edge of the scissor lift caught him underneath the neck and crushed him on the roof. He was not found for up to 30 minutes or more. This has been confirmed throughout the whole process of the inquest. How does this happen on a site with 2,000 people on the site at the time? There was no spotter. The evidence that has come out and is now in the public realm—and I'll send through the transcripts of them today because I've received them already—is that there was no health and safety officer allocated to that area, there was no site supervisor, there was no site manager, there was no exclusion zone, there was no safe work method statement, the list goes on.

This is something that I became very aware of very early in the piece, but the large joint venture corporation ran their own investigation and brought their own lawyers in. Jorge was dead at 7:30, but they restarted his heart. By 8:30, Hansen Yuncken and Leighton commercial had lawyers in place—one hour later. They put all the evidence under legal professional privilege. Even the coroner could not access the information from that first investigation, which is crucial because the other subcontractor, SRG, who was Jorge's immediate employer, cooperated fully with the investigation, didn't put professional privilege over anything and tried to work closely with SafeWork SA.

SafeWork SA did not have any investigators go to the site on the day. They sent three staff members to 'have a look around'. On the same day, they removed the scissor lift from the site before any of the measurements had been taken, before any of the photographs had been taken, before anybody had had a chance to inspect the fact that the power pack used to bring down the machine was not working, was replaced by a SafeWork person to get the machine started. They put it on a on a freighter and they took it to SAPOL, which is the South Australian Police Force lockdown area, and they left it out in the rain where it rusted for the next three months before they got a full investigation into that machine in early March. There were no interviews taken by SafeWork SA of any of the witnesses until the first week of May. The investigator who was given the profile or the portfolio on 28 November, the day after Jorge died, made some initial investigations on the site, took the SRG hierarchy that were on the site out for breakfast at Rigoni's less than a week after Jorge was killed, and that's where they had their briefing. After two or three weeks, he went away on holiday for six weeks. Nobody was allocated the portfolio—not a person. So we are now into February before anybody even picks up the portfolio. He comes back and picks it up and then does some initial inquiries.

April the 28th was the international memorial day for workers killed on sites, and I did a toolbox meeting down at the new Royal Adelaide Hospital site. I was walking around with Peter Salveson, who was the head of the joint venture, and the CFMEU boss, and I was getting catcalled by people on the site saying: 'Pammy, they're doing a number on you. We haven't even been interviewed.' So I started pushing some buttons on 28 April, and that's why I ended up having face-to-face meetings with SafeWork SA, and that's when their hierarchy discovered that their own investigators had not taken one single interview! SAPOL had, however, taken interviews, but not to the extent and not to the knowledge that would be required of somebody who understands the construction field.

I'm just touching the surface here. Hansen Yuncken and Leighton commercial were found to have 15 to 20 breaches, many of them before the accident occurred and some during—the process of pulling him down, for example. I won't go into so much of the detail, because I don't know where to stop. Seriously, it's just unbelievable. Suffice to say, I would not have even had a coroner's inquest if I hadn't gone literally to the streets. I have had rallies. We have had Justice for Jorge rallies three or four times. I have lobbied state government. I have been to Canberra three times. I have met with politicians who would talk to me to try and get some traction to get a coroner's inquest and also to have had a proper prosecution.

The prosecution was dropped 27 months after the initial charges were laid against Hansen Yuncken and Leighton commercial and also SRG. They were identified as having made breaches, but, because of the poor investigation and the legal power that's available—not only the money but the influence that big business has—that prosecution was dropped. At 4 on Friday afternoon prior to it beginning on the Monday they dropped it. It was supposed to start in the morning on the next Monday. Lo and behold, we get a government announcement on the Monday that an agreement had been reached between Hansen Yuncken and Leighton commercial and the South Australian government to enable the hospital to be finished early so people could be moved in. So the time frames changed. There was enormous corporate power to drop that prosecution. They did not want anything to come out. And it's been absolutely proven beyond a doubt that there are 15 to 20-odd breaches that they should have faced prosecution for, which is very unlikely to happen now. This is just part of the kind of bastardry that we have got to face.

We are the experts on the deaths of our own loved ones. We are the ones that have got the bird's eye view. We can see what happened. We know what happened the night before and the week before. We know what happened the morning. We know who was involved. I was working with 27 different organisations in the first three or four days of Jorge's death. There were five of us sitting at my kitchen table trying to work out who was who. It's just unbearable and impossible for people who are left behind to have to try and deal with this kind of incredible amount of injustice right from day one—injustice and disrespect for the people who we have left. It's utterly insulting and disrespectful.

It's obvious—and it will be made clear, I'm sure, by the findings of the coroner—that there are legislative and regulative changes that must be made in and around how workplace deaths are investigated. The powers and the money needs to be put into the proper resources, put into an organisation such as SafeWork, to be able to properly investigate and ensure that all of those investigators are properly skilled in it, that there is really strong cooperation between the police and the investigation, and that the powers of small, medium and large corporations, but particularly large, are diminished to a point where they cannot affect the outcome of the investigation. When you have got a massive amount of information that's been put under legal professional privilege, you've got serious issues of getting to the bottom of exactly what's happened. Luckily there are eight lawyers looking at this in the coroner's inquest and they have managed to get around some of that.

CHAIR: Ms Gurner-Hall, I was going to put this to you to get your views on it. Based on what you've said to us, it wasn't only a matter of resources for SafeWork; it seems to be a clear matter of competence?

Ms Gurner-Hall : Correct.

CHAIR: Which I guess in some respects can be fuelled by resourcing?

Ms Gurner-Hall : I would say that the two are linked.

CHAIR: I think some of the evidence we've gathered around the country reinforces that it's not an uncommon experience that the competence of the investigation seems to be beyond the run of the mill health and safety inspector—that people need to have proper investigative skills and training to do that. Especially if we move into a regime where industrial manslaughter may be considered, primarily the site would need to be treated as a crime scene from the first minute?

Ms Gurner-Hall : Correct.

CHAIR: So what we should do is really just have a conversation, and if people just want to jump in please just do that. I think that's probably the best use of our time.

I think it was you Mrs Gallina who said you were distressed about the lawyers for the company trying to convince the court that your brother was in the wrong. I just put it to you for some discussion: if we were to proceed down the path and we had industrial manslaughter, I suspect that one of the negative aspects of that is that that would even be a stronger case—that lawyers would then clearly, on behalf of their clients who could potentially be going to jail, work even harder to try to establish that. That may be an unintended consequence, and I'm just wondering how you would feel about that?

Mrs Gallina : I mean, that's a given. I'm well aware that that would become—you know sides. I think the issue was the fact that we had no knowledge going in so we weren't prepared for that. We weren't prepared to hear what we heard. We had no information going into that case to even understand what was about to unfold. So I bring it back to the process and the fact that we were kept so out of the loop of everything related to my brother's case. Had we gone in with some prior knowledge or you know preparedness that wouldn't have been so devastating, because we would have been prepared for it. So that's absolutely a given, and I'm sure everybody understands that should it go to that, that would definitely be how it would unfold, but we would be prepared for that. I feel that had we been given that opportunity we would have dealt with it much differently.

CHAIR: Again, this is a question for everybody: if there was in fact a criminal element to industrial manslaughter do you think that first of all the investigations would have been treated differently or the employers or those responsible for the site would have behaved differently if that was a potential penalty?

Ms Madeley : I support industrial manslaughter legislation wholeheartedly. In fact, I was talking about that over a decade ago, reading as much as I could about it and actually following what they did in the UK quite carefully, because those guys have been on the case for many more years than we had, and they'd had some very large catastrophic accidents over there that had that had cost hundreds of lives—the ferry accident and various other large corporate issues. My view today is, again, I'm astounded that we have no legislation in this country that genuinely holds a corporation to account when they make decisions to risk the lives of innocent people. That's true whether they're in the workplace or whether they're dealing with chemicals in a township where potentially you could cause massive destruction. If we're talking about nuclear power and all those sorts of industries, we have to have legislation that addresses corporate negligence, criminal negligence. We have to do that.

Where it comes unstuck for me is that most of the grievances that I've dealt with through VOID over the years have come from the criminal justice system itself. It does not deal well with victims. It never has. It's getting better in the sense that some areas of law, like family law or domestic violence law, are trying to bring in victims advocates to ensure that they are treated fairly. I think rape is another area where we recognise that you actually sometimes do more harm to the victim through the criminal justice system.

Certainly in workplaces where somebody dies what has happened over the years through the various deals and policies is that the rights of the worker and the rights of the families of the worker have been obliterated. There are no common law rights when somebody does the wrong thing in the workplace. As a mother, father or wife, you are limited to this no-fault scheme of compensation because somebody decided that is preferable to people being fairly compensated. Also, importantly, accountability is limited if SafeWork decides, 'We don't think we want to prosecute this one,' because the criminal justice system says this is the evidence that you must use. In criminal law, the focus is on this moment in time when this event happened. It dislikes looking at the context, the background, the culture and the real goings on. Lawyers will argue fiercely against relevance there. So right from the start you've got you've got your back up against the wall in terms of getting evidence. That's why I feel frustrated by what we're doing today.

If we're going to have industrial manslaughter, can we please do it so that it actually forms part of the criminal law and not try to weasel it into some statutory, regulatory-type legislation like the Work Health and Safety Act. With respect, the history tells us that act is not about punishing crime. When police go to a crime scene and they look for a crime and they look for a criminal. When work health and safety go to a crime scene—if you want to call it a crime—and they look for causation. That's a fact. They're not geared up. The two do not work hand in hand. Until we fix that, all you're going to do by bringing industrial manslaughter in is make it more difficult for families. Their expectations will be that the law is there to ensure that what has been done will be corrected. The reality is often quite different.

When my son was killed in 2004 he was an 18-year-old, first-year apprentice pulled into a machine. His body was torn to pieces. I've lived with that ever since. The reality is they had a set prison sentence then. It was there. It was clearly written in the act. Nick Xenophon was the first person to come and help me there. We fought and argued that: 'This was an aggravated offence. This kid had no supervision. He had no business working on a machine that could tear his body apart, working with a company attributed dustcoat.' We were told that the law there could not work. We were told the provision—section 59 at the time—was for an aggravated offence and it could not work because you almost had to be able to prove murder. That's where we are. That's where our psychology is in work health safety. We've almost got to prove somebody died through: 'I knew it was unsafe. I didn't really care. I wanted to go ahead and do it.' That's 'reckless'. How did that get in there?

CHAIR: That was the point I was going to make to you. If you're suggesting it should be in criminal law, it's already there. But it can't be used because of all—

Ms Madeley : No, it's not.

CHAIR: There have been instances of manslaughter being applied.

Ms Madeley : You're talking about individuals; I'm talking about corporations.

CHAIR: Oh, right. Okay.

Ms Madeley : I'm talking about corporations. If we go back to the UK, there's no limit to the fine that a court can hand out for corporate homicide in the UK. The reason for that is actually quite sound. When you look at the law, you know that the corporation is there for one purpose and one purpose only—and that is to make money. So you don't punish that corporation by threatening prison because you can't pick up a corporation and put it in jail. But what you can do is wound it severely because it has acted with reckless disregard to life.

If you're going to get to that criminal basis, that level of criminal negligence—not negligence. Negligence is not a crime. That is a civil wrong that we should have had the right to address and hold them accountable for. Criminal negligence is way over normal negligence, and that needs to be what is in our criminal law. We need the court to have the power to hand out a punishment that will punish that company so that the directors and the board look at that wound—that fine of millions of dollars—and look at the directors, and then the directors are punished by the company. The directors owe no duty of care to a single employee; the company owes the duty of care. We need to get our head clear around the law before we start writing more laws to break the expectations of innocent people dragged into this. That's the main argument I wanted to make today. Absolutely, let's do it, but make it so that it actually can work.

We know it can work because there have been over 30 prosecutions in the UK. It's not perfect, but they're handing out fines. We have the ACCC handing out fines of $10 million to Telstra for misleading consumers. We've got no problems doing that. But when somebody dies at work we're battling to get $400,000 fines. We've got the courts going, 'That's a bit severe, let's do a 40 per discount; let's discount justice.' That's where it's wrong. We're not holding them to account the same way we do in other areas of law.

Mrs Gallina : There's a good example of a situation in Melbourne where the union was handed a $3.5 million fine and the company got a $250,000 fine for killing three people. That's a perfectly good example. It just doesn't add up.

Mr Salvemini : I'd just like to make a few points. The other thing is you've got to have the right people to investigate the accident. That didn't happen in my son's case. I've got the statement and a transcript here from the police officer who went out to the boat. He didn't even go out to the boat, but they asked him, 'Had you had a chance to get familiar with the layout of the operations of the vessel in any other way?' 'No.' 'Do you have any experience in respect of a commercial fishing vessel?' 'Not really of a commercial fishing vessel, no.' 'Have you ever been on a shark fishing vessel before?' 'Not a shark fishing vessel.' 'Do you have any experience in respect of net winches or net spools on board commercial fishing vessels? 'No.' Then it goes on. He takes a statement from the skipper and sends it along to the coroner's office. He hasn't even been out to the boat. He doesn't even know what the boat looks like or the layout of the boat.

Then we have an inspector. It was an inspector that investigated Jack's accident; it wasn't even an investigator from SafeWork. They asked him, 'With respect to occupational health and safety prior to the investigation on the Jean Bryant, had you ever conducted investigations in relation to shark fishing?' 'Not in relation to shark fishing, no.' 'Had you had previous experience in relation to the operation of a shark net winch?' 'No.' 'Did you have previous experience in relation to crew operations on shark fishing boats?' 'No.' 'Had you previously investigated any matters involving fishing generally?' 'Yes, I had been involved in three occasions where there had been incidents on tuna boats.' 'With respect to those tuna boats, did that involve matters that involved the setting and retrieval of nets?' 'No.' This is the inspector.

Ms Madeley : That's an ongoing story with investigations.

Mr Salvemini : This is the inspector that investigates the accident. He's not even an investigator. I thought they had to have an investigator investigate the accident. He goes to Eucla and inspects the boat. SafeWork is out there and he puts a prohibition notice on the boat. He rings up the company back in Adelaide and says, 'We've put a prohibition notice on the boat.' Three days later the company from Adelaide that owned the boat rings up SafeWork and says: 'Look, you don't know about boats. Can I meet you over there and explain it to you?' He goes over to Eucla and meets him there. He goes out to the boat about three days after the accident and says to the inspector, 'We can't we can't put railing in front to protect the reel because we're in a remote place and we can't get engineers out here.' He goes, 'Yeah, that's okay,' and ticks the box. He says, 'You'll have to paint lines on the deck and the reel in a triangular shape so crewmen can't go over the line.' He replies: 'We'll put the line on but we can't paint it now because the deck is wet and the paint won't stick. It's just a waste of time painting the deck.' The inspector ticks that box. Okay. Six days later he signs off on the prohibition notice and the boat goes back to sea, without a single thing being done to it. And a man has lost his life on that boat.

Ms Madeley : The other thing I wanted to raise, too, is sentencing laws. The UK also does this quite well. I would hope that the committee would look at sentencing guidelines that would give the courts a clear directive to separate the individual criminal—which might be a petty criminal or even a murderer, for example, but an individual mind—from that of a corporate body. At the moment, when the courts look at the human person and the person, the entity, the corporate entity or the artificial person there's no differentiation in the sentencing guidelines. They are treated the same. I don't think that's wise. It's clearly something that other jurisdictions have considered.

When we talk about the various sentencing limitations that the court has, they will refer to, for example, the person at home. When you're talking about making sure that the sentence doesn't cause harm to innocent parties, that's the balancing act that the court has to do in the context of a criminal who has been found guilty of committing a crime. For example, he may have a family at home, so if you put him in jail then the family itself may suffer. It may be an unintended consequence of that particular penalty. In the context of a corporation, you have to consider potentially the other workers who are working for the company. If you wound the company to the point that it folds then you're going to end up causing harm to those other workers.

There are differences, but there's only one set of rules. In the UK, they actually look at the size of the company. They ask for forensic accounting. The companies will almost always say. 'We've got no money.' You know—rich in assets and poor in whatever. Ultimately, very few claims are ever really looked at by the courts. All the lawyer has to say is that they're running on a tight budget; therefore, we need to make sure that the fines are low. There are examples of where a company has made claims to the courts—and I'll just give you one example. A company claimed that they had renovated a widow's home, because the house was being renovated when the husband was killed. I was sitting in court at the time with the widow, and she looked at me and said, 'No, they didn't.' I made gestures to the prosecutor: 'Have you checked this with the widow?' 'No, we haven't.' So the magistrate has walked out of the courtroom under the presumption that this company has been this wonderful corporate citizen and has done this work, but nobody actually bothered to check with the widow. It's ridiculous.

Ms Gurner-Hall : It goes on and on and on.

Ms Madeley : These sorts of things are happening all the time. In a recent case in Queensland, a family contacted me about their victim impact statement. The prosecutors had refused to submit it because it was too confrontational. If you're going to ask them for an impact statement, let them make the statement, let them tell the court what the impact was. We really have this need to gently deal with corporations, and I think that's sad. I absolutely think it disrespects the lives of the people that we've lost.

Ms Gurner-Hall : I think the point that Lee was trying to make is that it's not just the corporations; things don't just finish after the event. The corporation can continue to conduct itself in a disrespectful and dishonest way. The investigators can be and should be made responsible for the quality of the investigation. That can come down to the case where SafeWork SA—a statutory body—was, to be honest, so bad in its investigation of Jorge's death. They disbanded the investigation team three-four months after Jorge was killed because nothing had been done, and they had given it to just one investigator. Those people pretending to investigate a death should be held responsible in some way—at the very least they should lose their job or be disciplined.

This issue of penalty is something that we are faced with. Quite often, we're on the wrong side of it. We're the ones that are paying the penalty, for example, through WorkCover. I'm hoping that you might ask some questions around the issues of WorkCover because it's just completely disastrous. I've met with four or five executives of WorkCover recently who told me that I would not be able to prosecute for a personal injury compensation case to Hansen Yuncken and Leighton Contractors, even though I have lost $300,000 of my own wages and I've had bone removed and four dental surgeries because of grinding my teeth at night, which has accelerating bone growth. There's a whole range of other issues.

I'm not allowed to actually put in a personal injury claim because it's associated to the cause of the original compensation, which was Jorge's death. I was actually accused of double dipping. When I said to them, 'What's this thing with double dipping?' I said, 'Well, hang on a minute, what about the company?' They said: 'You're not our only consideration. We have to look at how this affecting the company.' We're talking about one of the most well off companies. This was a joint venture. Hansen Yuncken and Leighton Contractors are global companies. They are global companies. The issue of compensation for me for $300,000 and just the ability to ask for that and to prosecute for that—they have agreed I would definitely win. They said to me, 'We would take all of the money plus any of the money you would require'—which is $200,000, by the way—'to pay for the lawyers.' We're paying compensation. We're the ones that are actually paying the penalty, but there's no penalty at the corporation level or at an individual level—not for the original faults. Yes, it can be a big corporate. There's a culture that's involved, and I agree 100 per cent with what Andrea is saying.

There are also issues of individual responsibility, and there are people involved in this case where it's very clearly coming down to the decisions of one person that in actual fact was the root course of Jorge's death. One person made—it wasn't a stupid mistake. He was asked why he made this particular decision. I won't say it publicly, but it's in my submissions and it'll be in the transcript. He said, 'I didn't give them a reason why they couldn't use another machine.' He said, 'Well, why?' And he said, 'I just said no.' 'Why did you say no?' 'I thought it was a hassle.' It's absolutely unbelievable, that one person in a place of 2,000 could make a decision that leads to the death of a worker, and then everyone walks away. There's no accountability.

We are well aware we can't get justice. Justice for us is all of our loved ones walking through the door and going: 'Jeez, that was a trip. Sorry I've been away for a while.' No. All we can hope for is the clarity and transparency that occurs at the time of the incident—and it's not an accident; 99.9 per cent of the time it's an incident. Then there's accountability. This is where this industrial manslaughter legislation sits. As Andrea says, it's much broader than that. Accountability is accountability at every single stage. And then there's legacy. The legacy for us is to try and at least feel that our loved ones didn't die in vain and that there's some greater purpose that's going to prevent somebody else going through the same sort of stuff down the track.

Mrs Gallina : One of the biggest questions I have is: why are workplaces not complying? In all of these situations—

Ms Gurner-Hall : It is because it is voluntary.

Mrs Gallina : they were not complying. They know the rules.

Ms Gurner-Hall : It's because the penalties are not there.

Mrs Gallina : And that's what I'm getting to.

Ms Gurner-Hall : The disincentive is not there.

Mrs Gallina : They know what they should be doing and it's because the system is not effective. It's almost like the fear of the outcome is not there. I have numerous family members working in the construction industry and I'm well aware of day-to-day things that go on that are simply not even thought about until they know somebody coming in to look and then there's a run around to quickly fix things up.

Mr Logan : They're notified.

Mrs Gallina : They're notified when someone is coming in. They're constantly working, as many of these companies were, in a state of safety issues, knowing full well that they're there but not concerned about them until they know someone's coming in to check and then there's a run around to fix it up and make it look good. That's the culture that we're actually dealing with, that's the culture that our loved ones worked in and it's the reason they lost their lives. It comes right back to the beginning of why are they not complying? Why are they not when they know full well what they should be doing?

Ms Gurner-Hall : I think that that comes down to two parts. That's a trickle-down approach, a top-down approach to safety—the SWIMS documents, the tick the box, the guy walks out of the university and carries around a piece of paper and a pencil and ticks the top. And then there's the ground-up approach to safety. The ground-up approach to safety is making sure that there are strong working teams, that they're not working in casual labour type scenarios.

A major problem on construction sites is casual labour. They're no longer working in teams. They don't look after each other. It changes the way that they work in their teams. But also, the access of the unions on site needs to be unfettered. It has to be unfettered because that's the ground-up approach to safety. And, yes, there has to be a tick-the-box component in it. But what you've got now is the whole safety scenario running from a top-down view and the bottom-up view has been disregarded or in fact penalised.

Mr Salvemini : When my son died, for part of the prohibition notice, they had to put in place operating procedures for any crewman they hired—they didn't have them in the case of my son. So they had to put these operating procedures in place where the crewman reads it, puts his name on it and then signs it. Fourteen months after my son's accident, they have another accident but this time the crewman's caught by the foot rather than by the neck like my son. He was pulled into the reel and survived it. It goes to court and they say someone's forged his name on the operating procedures. They say that he's seen operating procedures, his name is there and his signature is there. I have a statement from the crewman who was on board. His statement says, 'I see my name. I've never seen those operating procedures in place. I've never seen them, never read them. I saw my name there and there is a signature next. That's not my signature.'

Ms Madeley : That's a forgery. And that's going back to the limitations of the criminal justice system and that focus on that one event. It's very difficult, even if prosecutors try to bring in other matters, particularly if they're before the court or they're being investigated. So the sad part about that is that information never saw the light of day in a trial. So you've got a decision being made by the judicial officer with limited scope of information. The one thing that keeps coming through regardless of who you speak to is people want to know the truth. They want to know what happened to their loved one. The truth is the most basic right, I think, and that is not what we're dealing with at the moment. The criminal justice system is adversarial. It pitches two arguments together and whoever has the better argument wins on the day. The reality is that the criminal justice system, evidence law, does not necessarily mean that the truth is what we have. That is where the Coroners Court really makes a big difference.

Mr Salvemini : This is what I pointed out. They go to court and get a $22,000 fine and it is not a second offence. It's a first offence for that one because they've appealed. They dragged on my son's case and it hasn't gone through the court so they finish up with a first offence for the one my son died on and a first offence for the next one. After they've appealed my son's case and they hold it back until the other one goes through court: first offence, $22,000 fine. My son's offence: first offence, $70,000. They didn't pay any of the fine.

Ms Madeley : Same people, three first offences.

Mr Salvemini : Same people, same company. That man could have been killed, all because they didn't put those operating procedures in place. So they get a $22,000 fine. That's ridiculous.

Ms Madeley : We go back to the artificial entity and a real person. A real person can't chameleon into being two different people at the same time. Yet the criminal justice system treats the artificial entity in the same way as it does a real person, and it just doesn't work—not when you're dealing with life and death.

Ms Gurner-Hall : And on the Hansen Yuncken commercial site, the new Royal Adelaide Hospital, someone was killed 15 months after Jorge was killed in a scissor life. Why? Nothing was done.

Mr Logan : Can I just touch on something. We're all talking about penalties. I worked at nRAH hospital for one of those contractors.

Ms Gurner-Hall : You were there when Jorge was.

Mr Logan : I was there for both of those incidents, which obviously hit home because of the past with my father, Max. Let's just weigh a few things up. I can get more for slipping on a chip in the supermarket than the total compensation that has been offered in this room. Some of the CEOs' and executives' bonuses are higher than the total amount of money paid as a fine by the companies that we are here complaining against. Some of the salaries are $500,000 or $600,000 for one senior executive in one of those companies. Try and take five dollars off him. It just doesn't work. We have to fight for it.

We're talking about workplaces. You touched on workplaces that don't comply. I'm in a supervisory role in the construction industry, and I see it every day. I don't know what has changed. I'm 47. When I was 16 I started. I don't know. Something has gone really amiss somewhere. I'm told by my peers that it's through the apprenticeships scheme. We're not training the apprentices anymore. Apprentices are used now as cheap labour. I've got a scenario currently where I have one tradesmen to five apprentices. It's not right. I speak up daily. That's just another one.

When we were sitting in court, the industrial magistrate had said, 'We cannot apply a maximum penalty, because there is always a workplace worse.' How can he make that judgment? This is a magistrate. His salary is phenomenal.

I get down to paperwork and SWMS. I touched on it in my submission. Pam's touched on it. It's been a gripe of mine for quite a few years. We've stupefied the industry by making someone sign onto a piece of paper telling them how to do it, by people who have no idea of how to do it in the first place. A SWM is a document that is produced in court. Pam said it. It was produced in my dad's trial as well. People are signing onto it. There's one lot of wording in that SWM: 'Have you been consulted in the development of this SWM?' No. They're written in an office by a safety adviser who's still green behind the ears. He's done four years of uni and he knows everything. I think there are some issues with the way they're coming through. Gone are the days of the trade based people going up through the ranks and becoming leaders to show the young people how to do it again. Maybe that's where we're going wrong.

Ms Gurner-Hall : It's the craft of the jobs lost, isn't it. It's the craft of it. The real understanding. The depth of understanding seems to have been lost.

Mr Logan : With what is expected. Yes, I've been audited with the current company that I work for. I'm proud to say they're a very reputable South Australian business, family oriented. They do have values. I still have a program to meet. I still have money to make. It's a very fine balance when I'm trying to manage a site, when I'm sitting in a program meeting with a client and they're saying to me, 'You're four weeks behind program. There are LDs involved.' I can never, as a young fella, ever remember talking about liquidated damages in the contract. I can never remember having to go onto site and say to Jim, 'Can I borrow that piece of plant over there? I need to get my job done.' And he'd say, 'Yeah, sure, mate, here's a carton of beer.' These days, everyone is too scared to help. Everything revolves around money. No-one will touch anything without giving someone else a variation of money. And the industry, seriously, is in a bit of a sham. I'll be honest with you. It is hard, in the role that I perform, to manage. There are so many aspects. You worry about when SafeWork SA come to the site. They do their audits, they do their inspections and they tick the box as you give them a cup of coffee. The guy that investigated my father's accident—a ripping bloke; couldn't think any more highly of him. He went outside his duties to meet with us, greet with us, have a coffee and give us his personal views on things—possibly losing his job if that was ever found out—

Ms Madeley : Awesome lecturer these days, by the way.

Mr Logan : I don't know what's wrong. We're all members of an exclusive club that we don't want to be in. It's hard when you're constantly pushing against a brick wall. It's not easy.

Ms Gurner-Hall : It's the disrespect, too, isn't it? It's this level of disrespect. We feel so disrespected, really. There's not one of us here who really and honestly doesn't feel more comfortable sitting on the floor because that's as low as we can get. We really feel utterly disrespected. From the very beginning, in every part of the process, from the judicial, the legislative, the regulative, the investigation, the original companies, the WorkCover—here's a good example: 14 to 15 years of being with Jorge in a de facto relationship, and they decide that I'm 24.8 per cent of a relationship and pay me the equivalent of that, which worked out to be $120 a week, which is supposed to be Jorge's contribution to our life.

Ms Madeley : That's illusory.

Ms Gurner-Hall : This is the sort of stuff that we've got. Even my lawyers couldn't understand how they arrived at 24.8 per cent of a relationship. To this day, that is still sitting in WorkCover with a big question mark. But now they're telling me that if I get any money anyway they're going to take the whole lot back because I'm double dipping, even though I get $440,000 as a payout—that was the amount—and I've lost $300,000 of my own wages. And then I gave nearly $200,000 to his children in Chile, which cost me another $30,000 to $40,000 because I'm not recognised by Births, Deaths and Marriages. Why? Because I'm de facto. De factos aren't even recognised as partnerships in Births, Deaths and Marriages here, so then that's not recognised by the Catholic country where Jorge came from, Chile. They wouldn't recognise me unless I was on his death certificate. I wasn't on his death certificate. Why? Because he was married for three years, from 1994 to 1998, and her bloody name's on the death certificate. It just goes on and on and on, and there's not one of us who hasn't got a similar story.

Senator GICHUHI: Thank you so much for educating us, because this is a very, very complex area. The reason it's complex is that grief is complex, it's personal and it's individual—

Ms Madeley : No, this has nothing to do with grief. I don't mean to disrespect you, Senator. I made my point in my submission clearly. In fact, an academic article will point it out. We are not talking about grief here. If this were grief, I wouldn't be sitting in front of you. I would have been able to deal with my loss, but instead this system had me hanging for seven years waiting for it to finish its stuff. I got to the end of it and my life was screwed. That's not grief; that's bureaucracy controlling people. Parliaments across the country for the last 30 years have been destroying the rights of individuals like myself. I should have had the right to go to the employer. They did the wrong thing—absolutely crystal clear. I had no rights in common law. They were taken away by a parliament in Australia somewhere along the line.

Let me touch on compensation. It's called an insurance scheme. Every employer out there puts a levy towards paying for workers compensation so that people can be compensated. When you look at death benefits, we are external. It doesn't quite fit. The widow supposedly has to meet some sort of work capacity in our legislation in South Australia—I believe it's the same in other states. A review will come up and they may look at whether or not she has the capacity to work. It's written there in black and white, and I'm thinking, 'Why does she need a capacity to work?'

These are weekly benefits that she would have been entitled to if her husband or her partner were alive. But it's a pension scheme, really; it's not an insurance scheme and it's not compensation. There's a lump sum payable, no matter the situation or how old. You could have a 25-year-old man killed at work with three young children, and that lump sum, roughly $500,000-odd across the country, is the same amount of money as if a 58-year-old man were killed at work. His widow would be entitled to the same amount of money—that lump sum, which is supposed to relate to non-economic loss, pain and suffering. But the reality is that the 25-year-old's young family are going to have a lifetime of trying to overcome their loss, whereas the 58-year-old gentleman may have been going to retire in the next couple of years.

The point I'm trying to make is that those weekly benefits are supposed to represent her economic loss, but she's now subject to some sort of 'capacity to work' test. She's being treated like the injured worker. She's not the injured worker. The injured worker is dead. He has a fatal injury. She should be entitled to what he would have made—not 50 per cent of it but 100 per cent of it. Either do that or give the families the right to say, 'I want out of the system and I want to access full common-law rights, because that way I can be compensated for my loss, not what you decide my loss is.' I apologise.

Senator GICHUHI: No, that's all right. Thank you for educating me. As I said, it's a complex area, and the experience spans a whole lifetime. What I wanted to say is that we can't pay you enough for your courage and for committing your life to standing and bringing this to light. We may know, but we don't know. We can't claim to know exactly how it feels to be in your shoes. What I know is that the loss of your loved one hasn't gone to waste. You may not feel like you are getting justice, but, for those who come after you, it has not gone to waste. It is educating us. This committee is here so that we can bring this to attention, so that somebody else can learn from it after we are done. That is good enough, because justice will start to be done, or there is a step towards that justice, just from having your experience. You've been to the UK. You've been able to study this particular area. It's a big resource that our parliament didn't have before, so thank you so much for what you're doing. It's not a waste. We may not understand. We may misuse words, and for that I apologise. But thank you so much for that courage and each one of your cases. For everybody the loss is personal. It's unique. But we can come together in such a committee to be able to address this issue, even though it brings up memories. What I meant by 'grieve' is that, once you remember it, it takes you back as though it happened yesterday. As Susan explained, she drives past this place every day, or as often as she can, and it brings back the whole memory of her brother. For that, nobody can compensate you enough. Nobody can compensate for the loss of an 18-year-old.

Ms Madeley : Can I just interrupt you for a minute. I apologise. I hear this a lot: 'We'll never be able to give you enough money for what you've lost.' I'll never be a grandmother. You're right: there isn't a dollar amount that will make up for that. It kills me every day. But you're absolutely insulting me by saying that the compromise is nothing. That's where we are as family members: the common law has been taken away in South Australia. Each state is different, but for the most part you are severely limited in what you are able to do in terms of dealing with a negligence claim. You simply don't have the rights, because somebody decided some time ago that we should have a no-fault scheme, and therefore we should take away your rights. They tried to bring something back in the recent legislation, but they actually did not allow non-economic loss. The limitations are quite severe. The point is that it is an insult to say: 'We can't really compensate you, so therefore you get nothing, and not only do you get nothing but we're going to drag you through hell in the process, and that may take one, two, three, four, five, six or seven years—whatever. At the end of it all, whatever life you've got left, good luck to you.'

I'm so angry. I've done this three or four times through these various parliamentary committees over the years, through the state level. At the end of it all recommendations are made and not a single thing is changed because industrial relations are so difficult and we're just part of that. Again, with the ACCC—no problems. I think there was a $2½ million dollar fine handed out to Heinz the other day—not a problem! We can't seem to drag $300,000 out of BHP, even though they've already been held liable for killing multiple people over the years. It's just—

Ms Gurner-Hall : HYLC paid $12,000 a day for two of their QCs to appear at a coroner's inquest for the last five weeks—that isn't a prosecution—just to make sure that nothing came out that would besmirch their reputation. I'm happy to say that it didn't work.

CHAIR: Do you know when the findings are due to be handed down?

Ms Gurner-Hall : No, not at this stage. There were eight lawyers there—this was on the front bench—plus another eight sitting behind. It's an extremely big and complex case. The coroner was going to accept oral submissions this week. I'm here because he looked at the amount of evidence overall and said, 'There's no way we're going to get through that in three weeks.' So he restricted it to written submissions instead.

Four weeks were given for written submissions, and I don't think we'll see a finding before Christmas. It may be in February. But it's become pretty clear—that's a satisfying perspective, and it's as close as I can get. I wrote a letter to the coroner in February 2015, outlining my fears of what I thought was happening and what I thought would happen. To a singular point I was right, and then more. To have that affirmed, that in actual fact the view I had from the ground was clear and concise, and is now affirmed, has given a certain amount of satisfaction.

Mrs Gallina : Validation.

Ms Gurner-Hall : Yes, validation.

Mrs Gallina : Coming back to that compensation, I'll give my two cents worth about that. In my brother's situation, his relationship had been on and off. He had been living with my father for quite some time. He was living with him and my dad went to work with him most days. They did absolutely everything together—they fished. He had returned home and reconciled, and yet as part of that process any kind of financial support for my father's pain and suffering was not available whatsoever. That was even though they had been living and working together. Basically, they had done everything together, and my brother was his total support—his only son. The fact that he had returned to the relationship basically cut off anything that was then available for my father, even though a chunk this big had just been plucked from his life. Basically, he was relegated to: 'You won't be informed; you're not able to have any compensation. You really have no rights in this matter whatsoever. Sorry about that.' It was not spoken about and not included. Nothing was available for him, even though his relationship with his son was almost as big as the relationship he had with his partner, which was on and off.

The unfairness of that, as Andrea has said, was gut-wrenching—absolutely shattering. His life changed so much after that because the person who was the main point of his life was gone.

CHAIR: I'd like to ask Mrs Logan to speak, actually, because one of the things we've been hearing from around the country—and everyone here today has told me this as well, but I want to come back to you in particular—is how people are simply left on their own, effectively, and not involved in the process. There is no assistance given for all those consequential things that happen from the death. You talked about having to justify yourself to an insurance person each year?

Mrs Logan : Yes.

CHAIR: Could you just go through that? I think it's an important point—you said that the harassment stopped when you met with them in your lawyer's office. This is what I want to get to: if there had been someone who was a caseworker, for want of a better word, who assisted you through all those things that were consequential because of the death, how much of a difference might that have made to you?

Mrs Logan : I think the fellow was an insurance loss adjuster or something for WorkCover. He worked on behalf of WorkCover. He was just a thorough pig. He came into my home. Keith had moved home from Roxby to be a support to me, so naturally I did his washing. There was washing hanging up, and to get a little bit of comfort, you know, I'd grab one of my husband's shirts and put it on just to feel close to him. Yes, that fellow was just terrible. I put up with it for four or five years. Then I rang my lawyer one day about something else, and I was telling her about it and she said, 'Right, come in.' Of course that cost me money to pay her, but I didn't mind because all I wanted was peace of mind.

After that, it was all done. They would send me a letter and say, 'Give us a copy of your taxation return,' which I would give them, and then they would work it out. And every single year they would decide—I think I started off getting 50 per cent Max's income, and then the following year it dropped to 40. I think by the time that finished I was getting about 22 per cent or something, so I was living on next to nothing. I had given up work—well, we both had—in 1995. The deal was that he got a job closer to home to keep me in the style to which I had become accustomed. We had some lovely holidays away. He was just earning pin money so that we could have holidays. He loved four-wheel driving. It pulled the insides out of me, and it's something you never ever get over.

Mr Logan : It wasn't just the insurance part. From the minute we'd been notified that there had been an accident, not even two days had gone past and we were instructed to meet with insurance people in town.

Mrs Logan : Yes.

Mr Logan : We were sitting there in front of them and we were being asked, 'Where's the death certificate?' I said: 'We haven't got one. It's not available.' 'We can't start any process until we've got one.' 'Well, you've called us here; obviously you know more about what's happened than what we do. We're seeking your advice.' To be told by this particular gentleman, who was wearing brown corduroy pants like the ones that I wore in grade 3, 'You're mother's going to get nothing until there's a piece of paper,' I nearly jumped the counter and pulled his head off. You just don't want to be confronted with that. We were seeking answers; he was putting roadblocks up.

CHAIR: So that was on behalf of the WorkCover authority?

Mr Logan : Yes, that was how the system started.

Mrs Logan : No, that bloke was HIH Insurance, which was the sawmill's insurer.

Mr Logan : Okay.

Mrs Logan : He was the one who actually said, 'Right, well, look, we can't do a thing until we have a final death certificate because he could have been drunk, he could have had drugs or else he could have committed suicide by jumping into the machine.'

Unidentified speaker: The debarking machine?

Mrs Logan : Yes.

CHAIR: So what involvement did you actually have with the regulator? I know you talked earlier about how the investigator kept you well informed, but what about the actual authority itself? Was there someone guiding you through the legal processes, letting you know what was going to happen in terms of investigation, court cases, prosecutions?

Mr Logan : No. It's very, very cloudy, because the time that they're hammering you is also when you're very dazed because you're still trying to deal with what's actually happened. I was still waiting for dad to come through the door saying, 'I got you this time.' But that didn't happen. I was trying to comfort mum; I was trying to deal with my own grief in my own way. You're basically receiving phone calls from people saying: 'Okay, your next appointment is going to be at this time with this particular person. You need to make yourself available to be there.' You would do that appointment, and then there would be another phone call. You're trying to write things down—

Mrs Gallina : In between trying to do the funeral.

Mr Logan : Yes.

Mrs Gallina : You're trying to make funeral arrangements, and speak to family and find readings and songs and speak to the funeral arrangers—it's chaos.

Mr Logan : The mortgage payment—

Ms Madeley : And the autopsies, which are horrendous. I may be wrong, but I think what you're wondering is whether the regulator has a liaison officer or somebody that assists families in dealing with the various issues. In South Australia they do have a family liaison, or a liaison officer, but what we also know is that they don't stand in a role of providing any sort of advice. All they are is the conduit between the investigators and the family so that they've actually got somebody. She's a lovely girl in South Australia. She's empathetic and she's very good at what she does, but she's not qualified to, and in fact not allowed to, help the families in terms of workers compensation.

I'll give you an example: just last week I had a widow ring me who is 4½ years down in her claim and is still waiting for that to be resolved. That's a long time for somebody to be hanging in the wind over their financial security. She didn't understand what was going on with her claim. It's legally complex stuff. I offered, 'When you have a meeting, ask the lawyer if he wouldn't mind the conference call including me. Then I can help you perhaps better understand things, because I didn't know where they were either. So she asked the lawyer. It was at her request. She said, 'Would it be alright if my family advocate VOID would sit in on the meeting?' All of a sudden everybody got very uncomfortable and said 'Well, there's all this legal professional privilege. We don't think it's a good idea.' So it didn't happen. Even when the widow was looking for some support, at the end of the day the lawyers are going, 'We're not real happy with that.'

M r s Gallina : You're speaking for the family, but it's who they decide who the family is. That might have been available. It certainly wasn't available to us. It was done with whoever they had decided at that point the family was. The parent and siblings, clearly, were not. We weren't included in that.

Mrs Logan : Back in 1999, there was no-one available. You dealt with the sawmill's insurance company—

CHAIR: Which was effectively the WorkCover representative, yes?

Ms Madeley : I'm trying to figure out why you'd be dealing with their insurance company if you didn't have a common law claim, because you would've had no common law rights.

Mrs Logan : There wasn't any common law—

Ms Madeley : Maybe they didn't realise it.

Mrs Logan : No, I don't know.

Mr Logan : I can remember sitting down with mum and mum was crying. You can't say, 'What's up?' because you know what's up. She was opening up a bill from the bank. We had been a member since I was a three-year-old kid. It said, 'Your mortgage isn't gone through,' so ring the bank.

Mrs Logan : No income.

Mr Logan : So we said, 'Look, this is what's happened. Can you please have some consideration for us and the family.

Mrs Logan : That was my mother. She was a director on the board of the credit union. She rang me one day and caught me in tears. She asked, 'What's up?' so I told her. She said,' Right. No problem.' Ten minutes later the phone rings and it's the CEO of the credit union. He said, 'Look, I'm really sorry, but these letters are computer generated.' He said, 'Don't worry. We know that you have an insurance policy with us covering you for death and disability, so we know that your mortgage is going to be paid out. Don't worry about it. You will never hear from us again.' But if it hadn't been for my mum—

Mr Logan : It would have continued.

Mrs Logan : it would have continued on and on and on.

Mr Logan : And none of them were prepared to recognise anything until two and a half years later and a piece of paper—

Mrs Logan : Two years and one day after—

CHAIR: What was the delay in achieving the death certificate?

Mrs Logan : Every time I requested a death certificate they'd send an incomplete one. It wasn't until two years and one day after the accident that the final one with 'cause of death' et cetera was on there.

CHAIR: Right.

Ms Madeley : They'll issue an interim death certificate. The final death certificate is usually not issued until there is an investigation. They do have to determine whether it was a natural cause of death, and there have been examples of workers who have had a heart attack at work, so it may not necessarily be the workplace itself. Those interim death certificates are supposed to provide the widows or the families with enough legal leverage to get their finances in order, but they often don't. There is a limbo period of time that can be quite destructive for families to get on with things even if they are financially dependent and therefore eligible for workers compensation. The rest will just have to figure it out, but even these people are run through the wringer to get their entitlements.

Mrs Logan : I had to go to Centrelink and say, 'I don't have an income anymore.' I was rejected for a widows allowance because, 'There is no such thing anymore, so we will put you on Newstart.' I was on Newstart until the sawmill heard about it, panicked, and next thing rang me and said, 'Come down for a meeting,' and told me, 'We're going to give you 50 per cent of Max's minimum wage until everything is sorted.' That took quite a while.

Mr Logan : Even statistically that 50 per cent isn't a wage with overtime as an average; it's an working week with no overtime included, but Dad was killed doing overtime on a day off, called into work.

Mrs Logan : It was a rostered day off.

Mr Logan : One other thing, Andrea: how many inquests have been held into workplace fatalities?

Ms Madeley : Very few. I like the idea of shifting the whole process. I think inquiries are important. Daniel had an inquest into his death—

Unidentified speaker: Yours was the first.

Ms Madeley : There had been others, but they're not very common. They're not run of the mill. I suspect that has something to do with resourcing. That's just a guess. They're not cheap exercises. I experienced both systems. Whilst it took many years to get there, we got to the High Court on a legal argument. That was pretty difficult. To get to the Industrial Court on a guilty plea was a very hollow experience. It was the inquest that turned it around for me. From my point of view getting the answers I needed as to how my son died and what happened to him didn't change how I felt about anything, but gave me some validation. I had every reason to be angry. My hunches were absolutely 100 per cent right. They lawyered up before Danny was even buried. That's how this works.

That's what's different in the criminal justice system, where you have somebody that's being prosecuted for robbery versus a corporation, an artificial person, being prosecuted. The mentality is: 'We feel like we need to protect the economy and the business entity, so we're going to be very gentle in how we deal with them, regardless of what they do—unless they mislead the consumer; we'll go after them for that. If they kill people, we don't want to be too hard. We're going give them enforceable undertakings now, which means they have to promise to do what they should have been doing. That'll be our prosecution.' It's ludicrous. Meanwhile families are dying to get their justice, because they're the ones that get up every morning and think, 'How the hell am I going to do this?' You get to the end of a period and you don't have security. Again we go back to money. People say: 'Why is it all about money? Listen to all these people talk about compensation.' It's a very difficult thing to do, but the reality is you go through something like this and you don't just get up and get back to work and to normal life. It's not that simple. That's what's wrong. It's very difficult to explain, but it is absolutely debilitating.

Ms Gurner-Hall : Just on this thing with enforceable undertakings, the immediate employer of Jorge, called SRG, which was the subcontractor to HYLC, faced prosecution and the same charges for a range of breaches under the SafeWork SA jurisdiction—whatever you would call that. Anyway, they were given an enforceable undertaking. That was something that was deliberated hotly right up until the point of the prosecution, within a week, because they did not in actual fact agree to an enforceable undertaking if Hansen Yuncken and Leighton Contractors were not prosecuted. However, if the prosecution were to go ahead with SafeWork SA to the larger joint venture then they would go ahead with the enforceable undertaking. When I was first presented with the enforceable undertaking, which was to retrofit every single scissor lift, to invest up to a million dollars in training, new manuals—corporate global company that this is, it looked like it was nearly a million dollars worth of value in the enforceable undertaking. I was told by the crown solicitors that this was far better than would ever be accomplished under a prosecution, and it was put to me that this would be the best outcome. SRG undertook that enforceable undertaking. Within two days the prosecution was dropped. That's how close it was to the prosecution that they accepted that undertaking. The big point, though, is that it was never enforced. This is in January-February 2017 that they undertook the enforceable undertaking. SafeWork SA have not enforced it. They just said that they would do stuff, and yes, they have done quite a bit, I must say, and the one thing that I can say for that company is they've said: 'What do you want, Pam? We'll give you anything you want for the coroner's inquest. We'll put nothing under privilege. We'll just give you everything.' And they did. But SafeWork SA has no policy process to enforce the enforceable undertaking—none.

CHAIR: We are now out of time. I thank you all for the valuable contribution you're making to our inquiry. We hope that our deliberations go some way towards helping with or alleviating some of your concerns.

Committee adjourned at 11 : 52