Page 3942 - Week 09 - Thursday, 25 August 2011
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The justification for inclusion of the strict liability offences is, in essence, the need to ensure that everyone with workplace safety responsibilities complies with their obligations at all times and acts appropriately to secure the health, safety and welfare of workers.
The government considers that the public interest is best served by establishing a regulatory regime that encourages people with workplace responsibilities to maintain a workplace that is as free as possible from harm or injury and to develop a “safety culture” or run the risk of being found in breach of the legislation. The fostering of this safety culture would be more difficult to accomplish without the use of strict liability offences.
It should be noted that the safety duty offences are cascaded, with the strict liability version of the offence having the lowest penalty. Where an offence involves acts or omissions that are done recklessly or deliberately, the penalty is higher to reflect a greater degree of culpability.
It should also be noted that the offences are not drafted in the same way as most strict liability offences. While there is no fault element, the duties linked to the offences are limited by the “reasonably practicable” qualifier and the prosecution must prove beyond all reasonable doubt that the defendant’s conduct was not reasonable in light of the circumstances. Each provision is targeted at unlawful behaviour and the category 2 offence in particular requires a higher penalty to signal the importance of complying with the law where a failure to do so exposes an individual to a risk of death or serious injury or illness.
The increases in penalties reinforce the deterrent effect of the bill and, importantly, would allow the courts to respond meaningfully and proportionately to the worst breaches of the small minority of duty holders for whom the existing range of fines may have little punitive effect. There are serious offences which protect vulnerable individuals who are dependent on the duty holder to take proactive steps to ensure the safety of people they are responsible for at or near their workplace.
Madam Assistant Speaker, it is a well-worn cliche, but nothing could be closer to the truth: when a parent or spouse, son or daughter leave home to go to work, the family has the right to expect them home, and it is the Assembly’s responsibility to ensure we have the laws in place to make this happen. In considering the matters raised by the committee, I am satisfied that the government’s commitment to human rights has not been reduced by this bill. As I mentioned earlier, other than providing the revised explanatory statement, no changes to the bill are required.
I turn to the bill itself. The harmonisation of occupational health and safety has been underway for some time. It has been a vision of a number of governments of many different colours for many years, well before the states and territories entered into the intergovernmental agreement for regulatory reform in OH&S with the commonwealth back in 2008.
The bill enacts the model laws that were developed following a comprehensive review of Australia’s OH&S laws by a panel of independent occupational health and safety experts. The review team consulted widely with business, employer and union groups,
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