Page 2828 - Week 09 - Thursday, 27 September 2007
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natural justice. The ACT government does not support, nor will it progress, any reforms in line with the New South Wales reverse onus of proof provisions in OHS legislation.
I would now like to deal with the comments made by scrutiny of bills committee report 45 dated 24 September this year. This report was handed down on Monday night and I have provided a formal written response to the chair. However, given the tight turnaround and the fact that this bill is being debated today, I consider it appropriate to detail the content of my response.
I remind members that the bill imposes strict liability in the second element of the safety duty offence. I am advised that this was the original intention for the provision. The effect of the offence is as follows. A person commits an offence, first, if the person is required to comply with a safety duty. Absolute liability attaches to this element. The second element of the offence is that the person fails to comply with the safety duty. The third element is that the failure exposes anyone to a substantial risk or serious harm or causes serious harm to a person and the person was either reckless or negligent about whether the failure would expose the person to or cause the serious harm.
The offence, as a whole, remains a fault element offence. The strict and absolute liability elements of the offences are necessary to maintain the integrity of a work safety legislative regime. As I mentioned earlier, it is our role as the Legislative Assembly to attach strict or absolute liability to particular elements of an offence or an offence as a whole. Otherwise the Criminal Code imports the default elements for the offences.
In asking whether the imposition of strict liability in relation to the second element of the offences is justifiable, the committee suggests that the first and existing element of the offences is onerous. The government does not consider the first element of the offences to be onerous. The first element provides that absolute liability applies to the requirement that a person is required to comply with the safety duty. In other words, it is not necessary to prove that the defendant had any awareness or any other fault element about the existence of a safety duty under the legislation. It is not relevant that he or she may have made a mistake about the safety duty that applies.
The existence of the safety duty is a precondition of an offence and the state of mind of the offender is not relevant. Attaching absolute liability to the first element is essential to the integrity of work and public safety legislation whereby duty holders are expected to be aware of their statutory obligations. To put this in the context of the OHS act, employers, for example, are expected to know that they have a safety duty in respect of their employees as this is intrinsic to the employment arrangement. Therefore, no evidence about whether they know about the safety duty is required.
The justification for the inclusion of strict liability into the second element of the offences in the bill is, in essence, the need to ensure that people who have control over the generation of risks in a work environment at all times act appropriately to minimise, as far as possible, the risk of harm to people. The government considers that the public interest is best served by ensuring that these risks are minimised
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