Page 2820 - Week 09 - Thursday, 27 September 2007
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terminate a member for committing an offence punishable by 12 months imprisonment or more, the minister is now required to be satisfied that the conviction affects the member’s suitability as a member of the council. The amendments also mean that the requirement to terminate a member for failing to attend three consecutive meetings without leave is now discretionary rather than mandatory. I think there is some sense in that; I have seen other cases of boards where, for all sorts of legitimate reasons, it can happen that people miss three consecutive meetings.
In relation to immunity from suit, the legislation amends the provisions for immunity from suit for members of the council so that a member is immune “in relation to an honest act or omission”. This replaces the previous immunity which applied “in relation to an act done or omitted to be done in good faith”. The government advised in its briefing on this bill that this change from “good faith” to “honesty” is merely a result of a whole-of-government drafting change undertaken by the Parliamentary Counsel’s Office.
I mention this aspect of the bill because there is some judicial authority to the effect that “good faith” and “honesty” are in fact separate, although related, legal concepts and that, in particular, “good faith” includes obligations in addition to “honesty”. Authority to this effect can be found in the case of Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd in the Supreme Court of Western Australia. Further judicial authority can also be found in other cases cited in that case. Thus, contrary to the government’s explanatory statement for this bill, this is a change that has the potential to have a substantial legal effect on the council. In particular, it may potentially diminish the immunities granted to members of the council and subject them to legal duties that are encompassed within the concept of good faith but not within the concept of honesty.
This may not necessarily be a problem. However, you would expect this would be an issue that the government was made aware of, at the very least. But in its explanatory statement and in the briefings provided on this bill, there was no awareness shown by government officials that there might be any legal difference between the terms “good faith” and “honesty”, which I am advised do exist very much at law. In fact, staff in the briefing went so far as to advise that this was not their concern and that the issue was one for the Parliamentary Counsel’s Office and the Attorney-General.
I beg to differ, because I believe that, when you put forward a bill, you had better know what it means and you had better be aware of how a court might interpret the changes adopted by this Assembly. Having considered this issue, I am satisfied that these changes will not be a problem, but I am unsatisfied with the level of rigour displayed by government in considering the effect of this bill, which is an issue I have raised on previous occasions regarding other legislation, particularly in this area.
I turn to the matter of strict liability and the trend in OH&S and environmental offences. I will speak in some detail on the issue of strict liability when I speak to my amendment. However, before I go into detail, I would like to take a brief look at some disturbing legal trends in this area. The move to strict or absolute liability for serious offences and the reversal of the onus of proof engendered by this change is an alarming trend that is becoming more and more prevalent in areas of occupational health and safety and environmental offences.
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