Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2001 Week 4 Hansard (28 March) . . Page.. 1104 ..

MR SMYTH (continuing):

The government is in the process of meeting with key stakeholders to canvass the many issues raised in the RIS. This process will facilitate the development of comprehensive safety legislation based on the best current research available from industry, academia, regulators and the community.

A key component in the development of a modern compliance-based regulatory regime will most likely be the introduction of on-the-spot fines that, unlike in Mr Berry's proposed amendments, are not dependent on the exercise of judgment by the person issuing the fine.

Mr Berry's bill will also alter the status of codes of practice made under the act. Presently codes serve as a guide. They do not provide a single method to be followed. If the bill is passed, it would allow them to be used as evidence of a breach of statutory duty of care. There are currently 22 codes of practice. They were not drafted with the intent of being de facto regulations and, as a result, are unsuitable for evidentiary purposes.

Mr Berry: You will have to fix it.

MR SMYTH: Mr Berry interjects, "You will just have to fix it." Again, he indicates the flaws in what he has put forward. He puts forward something that already, as he has just admitted, will need fixing. The codes of practice would require individual review and rewrite. This is not a task that can take place overnight.

It is interesting to note that when the Occupational Health and Safety Bill 1989 was originally presented to the Assembly-in fact, it was the first bill to be introduced into the Legislative Assembly-it had a clause that enabled codes of practice to be used in prosecutions as evidence of a failure to observe health and safety requirements.

The select committee's schedule of amendments recommended the omission of that clause, and the act was passed without it. I note that three members on the committee-Mr Wood, Mr Moore and Mr Stefaniak-are still serving in this place. It is clear that the Assembly did not at that time intend that there be mandatory compliance or otherwise with a code of practice or that the code should have evidentiary value to this extent.

Mr Berry has given my office some amendments, and I assume he still intends to move them. Mr Berry's bill, with its amendments, will also reduce the statutory limitation period for issuing summary proceedings, if liability is disputed, from 12 months to 60 days. Taking away or reducing statutory rights in this manner is an issue this government takes very seriously and approaches with extreme caution. Such an outcome may, in critical cases, result in the inability of the DPP to bring forward a prosecution, due to the expiration of the now very short statutory period of limitation. I find it most curious, given Mr Berry's other amendments to the OH&S Act, that he intends to take away statutory rights in this manner.

I have attempted to resolve the problems with this bill. Officers of my department met with Mr Berry on 31 January this year to discuss the issues raised by the bill. At that meeting Mr Berry was provided with a copy of the 1998 JACS advice and the year 2000 Government Solicitor's advice. Mr Berry indicated that he had not intended to restrict

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .