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Legislative Assembly for the ACT: 2001 Week 4 Hansard (28 March) . . Page.. 1108 ..
Mr Wood: Something like that.
MR BERRY: Something like that. Our memories are fading a little bit.
Mr Wood: Speak for yourself.
MR BERRY: Okay, I will speak for myself. The strong intent of the legislators in those days, because it was an introductory piece of legislation, was to make sure that a collaborative arrangement was engendered with the introduction of that legislation. It was important not to have people savaging the legislation and being fearful of it. So we tried for a collaborative approach. To some extent that has worked, but not well enough.
It is now time-and this has been exposed by the Productivity Commission's report-to come up with more punitive arrangements now that the legislation and the ethos in the workplace have developed to the extent they have. It is quite appropriate now to use non-compliance with codes of practice as evidence to be taken into account when an occupational health and safety officer is considering whether or not there has been a breach of the act. It is not the only matter to be taken into account. It is not intended to be exclusively used as a matter which occupational health and safety inspectors take into account when they are considering a breach under the legislation. Let me read it to you. The legislation says:
An employer shall take all reasonably practicable steps to ensure that persons at or near a workplace under the employer's control, who are not the employer's employees, are not exposed to risk to their health or safety arising from the conduct of the employer's undertaking.
The amended section 28 I propose reads.
In working out whether an employer has taken all reasonable steps to ensure that the employer has complied with subsection (1), regard may be had to all relevant matters, including for example-
(a) whether copies of codes of practice applicable to the workplace are available to employees or whether employees are given information about where copies of the codes may be inspected or obtained; and
(b) whether the codes have been complied with.
That is one set of issues that can be taken into account. It is not the only issue. Mr Smyth said the codes were never designed to be used as evidence. That is untrue. The act as it now stands allows employers to use compliance with the codes as a defence against a breach of the act. So it is untrue to say that they are not designed to be used as evidence. If they are not written well, that is your department's problem.
To see that the issue of discretion for inspectors was a quite appropriate option, we only have to look to the environment protection legislation of the Australian Capital Territory. Let me read to you a couple offences under the environment protection legislation.
A person shall not cause run-off from the washing of a vehicle, equipment or other thing to enter the stormwater system, if the washing of the vehicle, equipment or other thing is in the course of, or incidental to, the carrying on of a commercial activity.
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