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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Thursday, 4 March 2004) . . Page.. 793 ..

If a person is under a duty to do something, that duty must be complied with and the person is under an obligation to make sure that their employees and other agents are properly instructed so that the duties are met. However, there is a defence built into this provision in subclause (5). If a person has exercised due diligence and taken all reasonable precautions to avoid the act or omission, they cannot be held responsible for the conduct of their agents. If an employee were instructed to operate machinery in a particular way and the employee ignored those instructions and caused a serious accident, the employer who holds the duty under the act would have a defence to prosecution.

MRS CROSS (5.44): I will be supporting this amendment. This clause has the effect of requiring a defendant to prove innocence rather than for a prosecutor to prove guilt.

MS TUCKER (5.44): The Greens will not be opposing this clause. It seems to suggest that, if you need to prove someone’s recklessness, negligence or intent, then you only have to prove someone working for that person had that intent. In other words, it might seem that you are as guilty as an employee for any offences in the act. The point is that no offences are simply a function of thought. An action or failure to take action would also need to be proved.

Clause 192(5) provides the defence against vicarious liability if you can establish that appropriate diligence was taken. However, if it is a reversal on the onus of proof, you will be found guilty for the thoughts and deeds of your employees or representative, unless you can demonstrate that you took reasonable precautions or appropriate diligence. Interestingly, in clause 193, which talks about the criminal liability of corporate officers, a person charged with offences resulting from insufficient regard to their duty of care needs to be proved to have failed to take reasonable precautions. In other words, there is a more conventional burden of proof for offences under this clause. It is not clear to me why both clauses 192 and 193 are there and why they are arranged in those different ways. The point of having clause 192 constructed as it is would seem to signal an inescapable commitment to duty of care. The difficulty I have lies in balance in this principle, with an equally important commitment to the presumption of innocence in issues of criminal law. This issue has come up before and some employers and managers are distressed because they are not sure what actions would constitute reasonable precautions.

Whichever way the debate on this amendment concludes, there is clearly a role for WorkCover in exploring those issues in the workplace and promoting consistent and appropriate risk management and management practices. Of course, there is also a reasonable expectation that the issues of associated risk and management would be independently addressed by responsible parties. In that context, clause 192, requiring proof of a proactive precautionary approach, has a real value.

Consequently, I am inclined to oppose this amendment, acknowledging that, on the balance of probabilities, if a person can demonstrate that they have taken appropriate precautions, they will not be found guilty for the actions of their representatives. Nonetheless, to shift to a person the negligence or recklessness of their representative is a serious act. It emphasises the need for all employers or managers of businesses dealing

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