Page 2821 - Week 09 - Thursday, 27 September 2007
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It seems that many self-appointed crusaders for so-called justice in these areas are acting with little regard for the rule of law and the safeguards of the criminal justice system in their endeavours to punish those they do not like. This alarming trend was the subject of an illuminating article by Mr Ken Phillips of the Institute of Public Affairs, who pointed to the hypocrisy of many alleged civil liberties advocates who criticise the Australian government’s anti-terrorism laws and yet remain silent about or even defend the removal of presumption of innocence in occupational health and safety matters. I will quote from Mr Phillips’s comments:
Civil libertarians and many legal groups are guilty of hypocrisy in the way they allegedly defend justice in the Australian community.
Their double standards are demonstrated in the loud criticism of federal terrorism laws and dead silence over NSW occupational health and safety laws.
Indeed, he went on to point out that the occupational health and safety offences contain few, if any, of the protections in anti-terrorism laws, which we hear our Chief Minister and others with an allied interest speak about so loudly. We have not yet reached the draconian occupational health and safety laws of New South Wales, where defendants are denied any pretence of justice. However, the current bill that has been introduced by the government and this minister goes some way towards detracting from the protections that should rightly be granted to defendants in prosecutions for serious offences.
MR SESELJA (Molonglo) (5.13) I welcome the foreshadowed amendments to be moved by Mr Mulcahy to the Occupational Health and Safety Amendment Bill 2007. I would like to say a few words in particular about the strict liability aspects.
The government proposes to impose strict liability on serious offences in the Occupational Health and Safety Act and the Dangerous Substances Act that require employers to comply with safety duties imposed under those acts. These offences carry terms of imprisonment of up to five years. Mr Mulcahy has already spoken about the draconian nature of these changes and how they diminish the presumption of innocence for employers accused of safety breaches. I certainly concur with those comments.
I would like to speak from the perspective of what was put into the report of the committee which scrutinised this issue. Firstly, strict liability offences are those which do not require guilty intent for their commission but for which there is a defence if the wrongful action was based on a reasonable mistake of fact—or, to use the Criminal Code language, a strict liability offence is one where there is no fault element for any of the physical elements of the offence.
The draconian nature of the strict liability provisions that the government seeks to impose was addressed in part by the scrutiny of bills committee in its consideration of the government’s bill. The committee observed that the amendments proposed by the government would allow the imprisonment of an employer for negligence only, without any intention or recklessness element. It also observed that the offence in section 48 of the Occupational Health and Safety Act does not require actual harm to
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