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Legislative Assembly for the ACT: 2000 Week 6 Hansard (25 May) . . Page.. 1854 ..

MR BERRY (continuing):

I am well known as having a strong commitment to occupational health and safety and the independence of the Occupational Health and Safety Commissioner. My judgment on this issue is fairly well recognised and, if I can be boastful, I am accepted as something of an authority on these issues.

I need to mention another couple of issues in relation to this bill to show that it is flawed. If this bill is passed, in my opinion it will have to be fixed up. I dare say that the government will have another legal opinion which says that it does not have to be. Let me refer to the Housing Assistance Act and the provision of the government's proposed changes to the Occupational Health and Safety Act which talks about the Occupational Health and Safety Commissioner being able to sue and being sued in his corporate name. Members will recall that provision.

Mr Minister, did you know that there is an additional provision in the act in relation to the Commissioner for Housing concerning the protection and liability of the commissioner? You should refer to it; it is very interesting. Division 3, "Protection and liability of Commissioner", section 11 reads:

(1) A person who holds, or has held, the office of Commissioner is not liable, personally, to an action or other proceeding for or in relation to an act done or omitted to be done in good faith in performance or purported performance of any function, or in the exercise or purported exercise of any power or authority conferred on the person as the holder of that office.

(2) Where, by an act or omission of the Commissioner or another person acting or purporting to act in good faith for the Commissioner, a person sustains a loss or injury that would have entitled that person to a remedy in respect of the loss or injury if the act or omission were an act or omission of a natural person-

(a) the person sustaining the loss or injury is entitled to the same remedy against the Commissioner in the corporate capacity of the Commissioner as the person would have been entitled to against a natural person; and-

That is all pretty straightforward, but then we come to the punchline, which is not provided for in the legislation put forward by this minister. I do not believe that this legislation can be passed without this provision. Listen to this one:

(b) the liability of the Commissioner shall be discharged by the Territory.

There is no provision for the protection and liability of the commissioner within the legislation, as far as I can make out. This legislation cannot pass without that provision in it, in my view. If members are of a mind to pass this legislation this evening or are supportive of it, they ought to adjourn its passage until such time as those provisions can be assessed in terms of their appropriateness for inclusion in this bill.

Let me also point out that the protection and liability clause that is provided for the Commissioner for Housing is also provided for the liability of the Public Trustee. Similarly, it is provided for the liability of the Registrar-General and other officers. But no similar protection is provided for the new Occupational Health and Safety Commissioner.

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