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Legislative Assembly for the ACT: 2003 Week 13 Hansard (27 November) . . Page.. 4888 ..

MS GALLAGHER (continuing):

However, importantly, the bill does seek to catch a corporate responsibility in relation to the death of a worker. The Crimes (Industrial Manslaughter) Amendment Bill has been developed to address gaps in ACT criminal legislation regarding the prosecution of companies for manslaughter.

These days most people are employed by companies and, as other speakers have mentioned, it is extremely difficult to prosecute a company for manslaughter. Essentially, the person whose reckless or negligent conduct caused the death of a worker must be proven to be the directing mind and will of the company for the company to be held liable. This has only ever been established in one Australian case.

It is particularly difficult to establish for large companies who often have many levels of management between the directors and the shop-floor managers whose conduct in employing the directors' policies has the actual impact on workers. Whether directors' policies and decisions are what actually cause the death of a worker or the directors allow a corporate culture to develop that disregards workers' safety, that company needs to be held to account.

The bill addresses these problems by applying the principles of corporate criminal responsibility set out in the new ACT Criminal Code to the new industrial manslaughter offences, making it simpler to prosecute large corporations and putting all ACT employers on an even footing regarding their potential liability when a worker is killed at work. Just as the law provides for manslaughter charges where a motorist is so negligent or reckless that their driving results in the death of another person, so too it is proposed that the law provide for industrial manslaughter charges for an employer whose conduct is so negligent and reckless that it results in the death of an employee.

Throughout the consultations on this bill there has been much discussion on the terminology "negligent"and "reckless"and how courts may interpret these words. In civil cases, judgments surrounding negligence have varied, as have interpretations of what constitutes negligence. In civil cases the court reaches a verdict based on the balance of probabilities and without a jury.

The important difference of the offence of industrial manslaughter is that it will be a crime under the Crimes Act-that is, the DPP must bring the charge; the matter will be dealt with before a jury; and the criminal test of the words "negligence"and "reckless"applies. The point here is that you cannot compare judgments made in civil cases and apply them to the proposed industrial manslaughter laws. We have trust in our courts for all other areas of criminal law, and this will remain the case with industrial manslaughter.

This bill is good law; it protects both employees and employers who do the right thing. If you are an employer who abides by the OH&S Act, then this law will not change anything. Your responsibilities towards your employees remain the same.

Mr Speaker, the bill has been subject to extensive consultation since its introduction in December of last year. At that time the government asked the Assembly to refer the bill to the Standing Committee on Legal Affairs to enable the community and members time to consider the bill's provisions.

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