Page 4103 - Week 10 - Tuesday, 20 September 2011
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problems with this. Firstly, it would have been appropriate to collect the differing standards of discrimination into the one bill. Splitting them can be confusing and could diminish their deterrent effect. Secondly, I point out that our existing Work Safety Act already has a discrimination provision that can result in criminal penalties, but it has a more relaxed test than the one proposed in the Work Health Safety Bill. Agreeing to this provision would be an erosion of existing rights we have in the ACT. As I said before, the Greens do not believe there should be lowering of ACT standards through harmonisation processes.
On a process matter, I need to mention that some of Mrs Dunne’s amendments go to the same sections that I am seeking to amend. Our amendments seek to remove the dominant and substantial reason tests. To do this, my four amendments must be accepted as a whole. Mrs Dunne’s amendments seek to remove the reverse onus of proof for those tests. It is important to note that if the dominant and substantial reason test remains in the bill, then the Greens want the reverse onus of proof to also be retained.
To try and keep this amendment process simple, I will speak at this point about why the Greens do not agree with removing the reverse onus of proof in discrimination. The section in question is designed to protect health and safety representatives or other people assisting health and safety representatives from being discriminated against because they are raising health and safety concerns or otherwise fulfilling the purposes of the Work Health and Safety Act. This is an important section that gives legitimacy to the act and ensures it can operate. It will be ineffective if health and safety representatives cannot do their jobs due to fear of discrimination.
I note that the national review into the model OHS laws recommended that a person alleged to have engaged in discriminatory conduct should bear the onus of proving on the balance of probabilities that the reason alleged was not the dominant reason for their actions. For example, in the case of a termination, the employer should be able to show that the employer was not terminated for a discriminatory reason.
On this issue I agree with the conclusions of the national review. In its report it stated that it would be very difficult if not impossible for a prosecutor to prove the reasons for the conduct. That is why discrimination laws around Australia under OHS acts and under discrimination legislation specifically impose on the person allegedly engaging in the conduct burden of proving that it was not a proscribed reason. If a person engaged in the conduct for a proper reason, the person should be able to demonstrate it. I agree with the national review that there is not any unfairness in requiring them to do so.
To conclude, I urge members to consider all these points, especially a need for ACT workers to have the strongest protections against discrimination, and to support my amendment.
MS GALLAGHER (Molonglo—Chief Minister, Minister for Health and Minister for Industrial Relations) (5.16): The government will not be supporting this amendment. Ms Bresnan’s amendment would remove the dominant reason test from the offence of engaging in the discriminatory conduct set out at section 104(1) of the bill. This
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