Page 3173 - Week 10 - Thursday, 18 October 2007
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to rise in response to some of the issues that have been raised this morning and to again reiterate the government’s position in relation to the issues of contention in this legislation.
Mr Mulcahy raised a series of concerns when this debate began last month, at which I had the opportunity to respond specifically to most of them. I will also pay tribute to Dr Foskey, who, very helpfully, and, in fact, most correctly, explained the effect of amendments during the debate. She did so so effectively that, in fact, I understand she did so twice. However, she was correct on both occasions, and that is important to acknowledge. I do want to put on the record my appreciation of Dr Foskey and her office in accepting the briefings from the department on the bill and for taking the time to consider and understand the effects of these amendments. But I would like to stress again that the offence provisions in this bill are not draconian and that a person will not be subject to imprisonment for an honest mistake. The offences remain fault element offences.
Under the offences, it is still necessary to prove that the defendant was either reckless or criminally negligent about whether his or her conduct would expose or cause serious harm to anyone. In the case of recklessness, the prosecution would be required to prove that the defendant knew of, or was aware of, a substantial risk that their act or omission would expose or cause serious harm to anyone. In the case of negligence, a court must be satisfied that the person’s act or omission merits criminal punishment. The defendant’s conduct must involve such a great falling sort of the standard of care that a reasonable person would exercise in the circumstances, and there must be such a high risk, that the person would be exposed to a serious harm because of the defendant’s act or omissions.
So, again, to reiterate to everybody today, this bill does not introduce a reverse onus-of-proof regime for safety duty offences in the OH&S act. The government does not support, nor will it progress, any reforms in line with the New South Wales reverse onus-of-proof provisions in its OH&S legislation. Under the offences in the bill, the prosecution is still required to prove each and every element of the offence beyond a reasonable doubt. This includes that the duty holder failed to take all reasonably practical steps to comply with a safety duty.
Under the amendments that Mr Mulcahy has proposed, a duty holder who demonstrates some degree of diligence, yet commits an offence, could be liable for a term of imprisonment, whereas a duty holder who is criminally negligent and demonstrates no level at all of awareness as to their duty or shows no degree of diligence or responsibility whatsoever would only be subject to a monetary penalty. This is sending the wrong message. In an occupational health and safety context, all duty holders are expected to be aware of their obligations under the legislation for the sake of their employees or other persons who may be affected by the undertakings of the duty holders.
I would like to take the opportunity to clarify some of the concerns that Mrs Dunne raised and, again, stress that the offences as a whole are not strict liability offences. Strict liability applies to only one element of the offences. The government, in fact, agrees with Mrs Dunne that strict liability must only be used in appropriate circumstances where people ought to know their obligations under a particular act.
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