Page 3122 - Week 10 - Thursday, 18 October 2007
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include the repeal of the absolute liability provisions that apply to each of these offences? Leaving it as it is creates ambiguity, and it is poor drafting practice to allow provisions which are redundant to remain on the statute book.
Mr Mulcahy is asking us to approve a law that would allow a person who either causes death, in the case of section 44 of the Dangerous Goods Act, or who exposes other people to a substantial risk of death or serious harm, to escape liability if they are able to convince a court that they had no knowledge that they were required to comply with a safety duty in the first place. That is a remarkable proposition. We are not talking about stubbed toes, bad smells or slippery floors. We are not even talking about a far-fetched possibility of injury. We are talking about a substantial risk of death or serious harm. Each of these factors would have to be proven beyond reasonable doubt by the prosecution.
For some of the other sections dealt with by these amendments the prosecution would have to prove that there was a substantial risk of serious harm, not just a risk of vague harm. Serious harm is defined in the Criminal Code as harm that (a) endangers or is likely to endanger human life or (b) is, or is likely to be, significant and longstanding. This sets the bar very high. If the prosecution could not prove all of these elements, it would be left with a prosecution under section 47 of the OH&S Act, which actually is a strict liability offence. But it only carries a maximum penalty of 100 penalty points. This is a woefully inadequate penalty for a person who created the kinds of deadly situations that would be prosecuted under the provisions that Mr Mulcahy is trying to weaken with his amendments.
So I have to wonder which of his constituents Mr Mulcahy is trying to protect with these amendments. Is it a mere coincidence that these amendments would protect employers who maintain unsafe work sites? These amendments would actually endanger the bulk of employees and other people who may be exposed to serious risk from the deliberate, negligent or reckless actions of people who are under a safety duty. If these offences were wholly strict or absolute liability offences, I would agree with Mr Mulcahy’s amendments; it would be inappropriate to have such serious penalties without a qualifying mental element to the offence. But these are not strict liability offences; they already possess a mental element. The prosecution still has to prove that a defendant was reckless or negligent in creating such a serious risk. These amendments simply remove the possibility that a person who caused such a serious danger can argue that they should escape punishment because they were not aware that they had a duty not to create a serious risk. Alternatively, they can convince a court that there is a lack of evidence to prove beyond reasonable doubt that they were so aware.
I agree with the Attorney-General that it should not be a relevant factor whether a person is aware of his or her safety duty. It defies reason and any sense of social responsibility to suggest that a person should be allowed to put other people in such serious danger and escape punishment by arguing that he or she was not aware that they should not have done it.
Mr Mulcahy may be concerned that a person could receive an unduly harsh sentence if these strict liability clauses go through. But it is naive to imagine that a judge would impose an incredibly harsh penalty simply because the maximum available penalty
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