Page 3889 - Week 09 - Thursday, 25 August 2011
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
The next major element of this bill is the removal of the concept of crown immunity from prosecution. This would appear to be a positive in this bill, putting the government on the same footing as the private sector when it comes to work health and safety. Perhaps such a move might help to address some of the problems of bullying and coercion that seem rife throughout the ACT public service.
Another positive element of this bill is that prosecutions will only be able to be brought by WorkSafe ACT, thus removing that right from employer and employee organisations but retaining the right of anyone to pursue common law prosecutions. This provides more certainty to both employers and employees and underscores the comments I made earlier about the independence or otherwise of unions and employer groups. I understand that the Greens will be proposing an amendment to reinstate the right to private prosecutions. The Canberra Liberals will not be supporting that amendment.
The bill significantly increases monetary penalties, including attaching strict liability elements to many of them. These penalties go as high as $300,000 for an individual, $600,000 for a person conducting a business or undertaking and $1.5 million for a corporation. The rationale for this is that the defendant, in basic terms, being a professional in the field, ought to know better. According to the explanatory statement:
… the defendant’s frame of mind at the time of committing the strict liability offence is irrelevant.
In addition, contrary to standard drafting practice in the ACT, these penalties are expressed in dollar terms and not in penalty units. This approach goes completely against the approach adopted in the ACT, particularly relating to a ceiling for strict liability offences, and we will not support it. I do note, however, that custodial sentences in the bill are lower than as set out in the act currently.
In yet another departure from drafting protocols in the ACT, examples and notes given in the bill form part of the bill and expressly displace the effect of the Legislation Act 2001.
Still another unusual element of this bill is the imposition of a reverse onus of proof on the defence, displacing the principle of a presumption of innocence. The only rationale the explanatory statement could advance was this:
The need to safeguard the safety of all individuals at workplaces is a substantial and pressing need in light of the damaging effect of deaths, serious injuries and illnesses to individuals, their families and the community.
Quite so, but it does not justify the displacement of the centuries-old maxim that a defendant is presumed innocent until proven guilty.
An area of particular concern is the lack of clarity in relation to volunteer-based associations. As I understand it, incorporated associations are caught by the legislation, but unincorporated associations are not. And yet, regardless of their association,
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video