Page 3126 - Week 10 - Thursday, 18 October 2007
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If there is confusion, it is the confusion of the minister—not the opposition. The minister stated in his speech:
This bill does not introduce a reverse onus of proof regime for safety duty offences in the OHS act.
This statement is patently false. The addition of a strict liability to the second element of the offences clearly reverses the onus of proof for the intention element that previously applied to this element of the offence. Instead of the prosecution having to prove intention for this element of the offence, the onus of proof is now on the defendant to prove a defence to this element.
In commenting on the draconian workplace regime operating in New South Wales, the minister agreed that there is no deterrent effect in reversing the onus of proof, and in support of this contention he stated:
… Chris Maxwell QC, in a review of the Victorian OHS legislation, noted that there is no demonstrated deterrent effect in shifting the onus of proof to the defendant in OHS prosecutions.
Yet only minutes later the minister attempted to justify the changes precisely on the grounds of deterrence. He stated:
The justification for the inclusion of strict liability into the second elements 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 through establishing a regulatory regime that encourages duty holders to develop a safety culture or run the risk of being found in breach of the legislation. Fostering of this safety culture would be more difficult to accomplish without the use of the strict liability elements in the offences.
I will now address Dr Foskey’s confusion. I note that Dr Foskey’s interest in this debate is such that she has now left the chamber. Despite the evidence against the existence of any deterrent effect, Dr Foskey also tried to defend the changes to strict liability on the grounds of deterrence. She said:
I am concerned that the omission of this clause would actually endanger the bulk of employees and other people who may be exposed to serious risk by the deliberate, negligent or reckless actions of people who have a safety duty.
Dr Foskey is even more confused on this issue of what is a mental element. She stated in her speech on the bill, which we were presented with a rerun of today:
If these offences were wholly strict or absolute liability offences, then I would agree with Mr Mulcahy’s amendments. It would be inappropriate to have such serious offences without a qualifying mental element to the offence. But these are not purely 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.
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