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Legislative Assembly for the ACT: 2003 Week 13 Hansard (27 November) . . Page.. 4845 ..

MS TUCKER (continuing):

Mr Peters of the chamber of commerce has communicated to me his concern that negligence is problematic because there is no requirement to show intent. Clearly, if there is intent, then we are dealing with a potential charge of murder, not manslaughter. Negligence, in itself, is a mental fault, as is recklessness, and that has to be proved beyond reasonable doubt. It is also important to understand that there is no vicarious liability. An officer cannot be liable for prosecution just because he or she occupies a particular position in an organisation.

It is not the case that under the offences an unrelated death could be blamed on an employer, because it is clearly stated in the description of the offence that it has to be established by the prosecution that the conduct of the employer caused the death. In the case of injuries that later led to death, it has to be established that the injury occurred in the course of employment and that an employer or senior officer substantially contributed to the worker's death and their conduct was reckless or negligent.

I have heard of concerns that the legislation, if passed, would be particularly unfair on employers in industries, activities or occupations that were particularly high risk-for example, firefighters, security guards, doctors, nurses and police. However, the responsibility of an employer to provide a safe working environment does not mean that employers in inherently dangerous jobs should or would be judged against the criteria appropriate to employers in so-called safer areas.

A firefighter or a security guard obviously will be exposed to greater risk of physical harm than a white-collar worker. The obligation on the employer is to ensure that the risk is managed in the appropriate way; that is, that a good occupational health and safety regime is in place, such as appropriate training to educate the individual, the teams and the workplace about the risks and how to deal with them. For these high-risk occupations, given the inherently dangerous nature of firefighting and other emergency service work, there would need to be very clear evidence of a high degree of negligence to support a prosecution.

The identification of a range of employment relationships is central to this bill and what we are really talking about and it recognises the change in the nature of employment relationships in Australian society. The conviction of a corporation would not automatically result in the guilt of any particular officer of the corporation, but it is absolutely essential for legislators to respond to the practice of corporations so that they cannot avoid basic responsibilities, such as not allowing people to die in the workplace.

Death in the workplace is a very serious issue. It is not a minor transgression against OH&S practice that this law deals with; it is the loss of someone's life which has resulted from such a falling short of responsible practice that it can be proved beyond reasonable doubt in criminal law that that falling short caused the death.

It is remarkable to me that it is suggested that we should not deal with this in the law. Why should there not be the same responsibilities for corporations as there are for other employers? Do we really support the fragmenting of employment relationships to avoid responsibilities of all kinds to workers? The argument that we should just work with prevention and education does not address the purpose of this law.

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