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Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4267 ..

MS GALLAGHER (continuing):

Increasing premiums puts pressure on the whole system; it pressures employers' ability to continue to employ workers; it pressures insurers' ability to remain in the ACT scheme; and it places pressure on workers and employers to not properly report injuries for fear of the impact of claims on premiums.

Reducing benefits also impacts on scheme behaviours. A low level of statutory benefits encourages actions to be taken to the common law court. It drives adversarial behaviour and does much to line the pockets of the legal establishment, to the detriment of injured workers. It works against effective injury management and return to work as injured workers become more concerned with being able to pay their bills and living expenses rather than returning to work.

So when Ms Dundas sees sections 156 to 162 as being of administrative convenience and only requiring a slap on the wrist for non-compliance within the workers compensation scheme, the government sees those sections and the penalties as important and effective enforcement tools central to the ACT workers compensation scheme.

The offences in these sections do not require a mental fault element; they either happen or they do not. The employer provides the information to their insurer or they do not. They provide a statutory declaration or they do not. They have a certificate from a registered auditor or they do not. Employers are not punished if they make a mistake of fact, but they must provide the information required. As I have stated previously, if these sections are not strict liability then they must be considered as mental fault elements and, in that case, what is the mental fault element required?

A further example is section 191 regarding the right of entry of an inspector. Either the occupier of the premises lets the inspector in the door to carry out an inspection or they don't. What could possibly be regarded as requiring due diligence in that?

As I said, the government will be opposing this amendment. We see no reason to introduce a new mental fault element offence, nor do we see any rationale in changing the offences identified as strict liability to at-fault offences.

MR PRATT (8.33): Mr Speaker, we will not be supporting the Democrats' amendment as we do not think it would hold people sufficiently accountable in respect of those particular provisions. We don't think, where people do have responsibility to comply with strict liability provisions, this amendment will serve any useful purpose.

MS TUCKER (8.33): The Greens will be supporting Ms Dundas's amendment. We think she needs to be congratulated for coming forward with it. Informed by the scrutiny report, she has come up with a solution to the ongoing stand-off on the application of strict liability. This amendment introduces a defence of due diligence in order to refine the application of strict liability.

The clauses affected by this amendment, the defined provisions, are a subset of the strict liability clauses in the bill. They are provisions for which it is not appropriate to waive all the defences which relate to the employer having made a reasonable and good-faith effort to comply but having failed through no fault of their own. Mistake in fact does not

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