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Bills Digest No. 135 2003-04
Occupational Health and Safety (Commonwealth Employment) Amendment
(Promoting Safer Workplaces) Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Occupational
Health and Safety (Commonwealth Employment) Amendment (Promoting Safer
Workplaces) Bill 2004
Date Introduced:
1 April 2004
House:
House of Representatives
Portfolio:
Employment and Workplace Relations
Commencement:
On the date of Royal Assent
The Bill proposes to exclude Commonwealth
authorities and Commonwealth government business enterprises from the
effect of:
-
the Crimes (Industrial
Manslaughter) Amendment Act 2003 (Australian Capital Territory),
and
-
any future similar legislation enacted by a state or territory.
On 27 November 2003, the Legislative Assembly of the
ACT passed the Crimes (Industrial Manslaughter) Amendment Act 2003
(the ‘ACT act’). This Act made the ACT the first jurisdiction in Australia
to introduce the offence of ‘industrial manslaughter’. Other states have
considered or are considering similar laws, including Victoria, Queensland,
Western Australia and South Australia.(1)
The present Bill is the Commonwealth’s legislative response
to the ACT Act, although it also pre-empts similar moves in other jurisdictions.
It proposes to provide immunity to the Commonwealth, its agencies, businesses
and employees from any state and territory industrial manslaughter laws.
Although the Commonwealth has the constitutional power to do so, the Bill
does not override the ACT Act as it applies to the private sector or the
ACT Government.
The primary rationale for creating a specific offence
of industrial manslaughter is that existing laws are inadequate for the
prosecution of recklessly or negligently caused workplace death. In jurisdictions
other than the ACT, prosecutions for such incidents are possible under
either:
Both of these options have limitations when applied to
workplace death. As explained in the presentation speech for the ACT Act:
The objective of the Crimes (Industrial Manslaughter) Bill
is to reinforce the important duties employers have to provide safe and
healthy workplaces, and to ensure that employers who fail to meet these
duties are held accountable if a worker dies.
These duties of care are well established through occupational
health and safety legislation and through the common law. There are, however,
significant problems in prosecuting employers under existing manslaughter
laws, as many people are employed by corporations.(2)
The chief problem in applying the general crime of manslaughter
to industrial circumstances is the difficulty proving that a company has
been negligent. Under common law principles, a company can only be found
guilty of an offence if the necessary mental element (in the case of manslaughter,
gross or criminal negligence) can be attributed to the ‘directing mind
and will’ of the corporation, normally the directors or chief executive
officer. This is known as the Tesco principle after the British
case, Tesco Supermarkets v Natrass.(3)
The Tesco principle makes prosecutions of large
companies for manslaughter difficult as the negligent conduct leading
to the death most often occurs at a mid-management level. As one commentator
explains —
The Tesco principle is unworkable in the context of
larger corporations because it fails to reflect the diffused nature of
decision-making in large or even medium size organisations. Offences committed
on behalf of organisations often occur at the level of medium- or lower-tier
management whereas the Tesco principle requires proof of fault
on the part of a top-tier manager, or a delegate in the sense of a person
given full discretion to act independently of instructions in relation
to part of the functions of the board. It is easier to prove fault on
the part of a top manager of a small company, but if that can be done
there is usually little need to prosecute the company as well as the manager.(4)
In Australia, the Tesco principle seems to have
been a significant barrier to the prosecution of companies under the general
law of manslaughter. The Victorian case R v Denbo Pty Ltd(5)
appears to have been the only successful prosecution.
Companies can be, and are, more easily prosecuted and
punished under occupational health and safety (OHS) legislation in every
Australian jurisdiction. However, only fines, not prison terms, may be
imposed for these offences. These fines also tend to be relatively minor.
In the ACT, for example, the fine for failure by an employer to ‘take
all reasonably practicable steps to protect the health, safety and welfare
at work of [their] employees’ attracts a maximum penalty of $25,000 for
an individual employer or $125,000 for a corporate employer.(6)
Further, the legislation provides no differentiation between failures
that result in minor injuries and those that result in death.
Proponents of industrial manslaughter laws argue that
a specific crime for this particularly egregious workplace offence could
be used to provide more substantial penalties and to imply greater opprobrium.
Several commentators have pointed out that OHS offences tend to be seen
as merely quasi-criminal, rather than genuinely criminal, including by
the inspectorates charged with a policing function.(7) In the
words of a former head of the Department of Labour and Industry in Victoria:
A concept in the minds of many people is that the inspector
is there in the workplaces to detect breaches of the law and to prosecute
offenders. Some even regard the number of successful prosecutions as a
measure of the success of the inspectorate.
Most inspectorates would take the opposite view. They see
as a failure any inspector who constantly has to launch prosecutions in
order to obtain compliance. They see the legislation they administer as
remedial rather than punitive in nature, ie they are there to improve
the conditions of work, not to make the employer or employee suffer penalties
for breaches of the law.(8)
As the academic Alan Clayton describes OHS law and the
use of minor penalties, ‘The semiotics of this position is that occupational
health and safety violations are essentially “purchasable commodities”
rather than socially intolerable offences.’(9) In this light,
the separate and specific provision of a crime, placed in the criminal
rather than OHS legislation and subject to prosecution by the police and
Director of Public Prosecutions rather than an OHS inspectorate, can be
seen as a means to ensure that workplace death is understood to be an
intolerable risk, treated with greater severity that other OHS contraventions.
The ACT Act introduced a Part 2A into the ACT’s Crimes
Act 1900, creating the new crime of industrial manslaughter.
-
An employer or senior officer of an employer is guilty of the offence
if:
-
a worker of the employer dies in the course of their employment(10)
or following injuries sustained in the course of their employment
-
the employer or senior officer’s conduct caused the death, and
-
he employer or senior officer was either:
- reckless about causing serious
harm to the worker, or any other worker of the employer, by the
conduct, or
- negligent about causing the death of the worker, or any other
worker of the employer, by the conduct.
The following points should be noted about the ACT Act:
- the term workers is
used rather than the narrower employees. Accordingly, the legislation
applies to employees, independent contractors, outworkers, apprentices,
trainees and volunteers
- the Act provides high
penalties: a fine of up to $200 000 for individuals, $1 million for
corporations, imprisonment for up to 20 years or both a fine and imprisonment.
Interestingly, the law also allows the court to impose ‘name and shame’
style punishments for corporate offenders, such as requirements that
they advertise the fact of the crime and the penalty on television or
establish and operate a community service
-
the test of criminal negligence used is significantly higher than
the test used in civil negligence trials
-
senior officers of an employer may be individually
liable for the crime. Senior officers include the following:
-
for government authorities,
the relevant Minister, chief executive officer or any other person
in an executive position who makes or takes part in making decisions
affecting all, or a substantial part, of the functions of the
authority
-
for corporations, any officer of the corporation
-
for other entities,
a person in an executive position who makes or takes part in making
decisions affecting all, or a substantial part, of the functions
of the entity, or a person that would be an officer if the entity
were a corporation
-
vicarious criminal liability
is not imposed on senior officers for the actions of subordinate
employees. Accordingly senior officers will only be individually liable
where the negligence or recklessness can be directly attributed to
their personal conduct. This contrasts to a controversial approach
previously proposed by the Victorian government(11)
-
interaction with the ‘corporate
criminal responsibility’ provisions of the Criminal Code 2002
(ACT) (the Criminal Code) broaden the impact of the ACT Act.(12)
Among other things, these provisions provide that:
-
where the fault (or mental)
element of a crime is negligence and no individual employee, agent
or officer of the corporation has the fault element, the corporation’s
conduct as a whole may be considered to determine if negligence
has occurred, and
-
where the fault element is
recklessness, recklessness may be shown by proving that a ‘corporate
culture’ existed within the corporation that ‘directed, encouraged,
tolerated or led to non-compliance, with the contravened law’
or that the corporation failed to create and maintain a corporate
culture requiring compliance with the contravened law.
The application of the corporate criminal responsibility
provisions of the Criminal Code is the most significant feature of the
industrial manslaughter laws. These provisions, modelled on Division 12
of the Commonwealth Criminal Code 1995, dramatically reform
the Tesco principle by removing, in certain circumstances, the
difficult task of finding the company’s ‘directing mind’. The corporate
criminal responsibility provisions do not apply to the general crime of
manslaughter.
For practical purposes, a similar outcome could have
been achieved by making the general crime of manslaughter subject to these
provisions. However, it would also have made it easier to prosecute companies
in contexts beyond the workplace, for example for deaths that result from
environmental, building or food safety failings. By providing a specific
industrial manslaughter crime the ACT has been able to limit corporate
liability for manslaughter to the industrial context only.
The present Bill proposes to nullify any effect the ACT
Act would have on Commonwealth employers, employing authorities or employees.
The status quo, by virtue of s 27 of the Australian
Capital Territory (Self Government) Act 1988 (Cth),
is that the ACT Act does not apply to the ‘Crown in right of the Commonwealth’.
As a general rule, Government agencies, except government business enterprises
(GBEs), would attract this protection.
The extent to which employees of the Commonwealth would
be covered by this immunity is not clear. The concept of the ‘Crown in
right of the Commonwealth’ may extend to public servants depending on
the circumstances, including the purposes for which their agency was established,
whether or not application of the law in question would cause prejudice
to the Crown and the nature of the conduct in question.(13)
Given the complex and qualitative nature of these tests, it is not possible
to outline a formula to describe which Commonwealth employees and what
conduct by those employees will and will not be subject to ACT law. It
should be noted, however, that the jurisprudential trend of recent decades
has been to read down the concepts of the crown and its immunities to
ensure that public servants are not ‘placed beyond the reach of the ordinary
criminal law’.(14)
On a different basis, Commonwealth public servants may
be immune from the ACT Act as a consequence of s 121 of the Legislation
Act 2001 (ACT). This provides that criminal offences are presumed
not to apply to the Commonwealth government nor to its instrumentalities,
officers, employees or contractors (as long as they are acting within
their functions, roles or contracts). However, s 121 provides only a presumption
and this may well be displaced by the ACT Act which clearly envisages
application to government.
Accordingly, while the Commonwealth as an entity is clearly
immune from the ACT Act and Commonwealth GBEs are clearly not, the position
of Commonwealth employees is unclear and — without passage of this Bill
— would probably remain so until litigation has tested both the scope
of s 27 of the ACT Self Government Act and the effect of s 121 of the
Legislation Act.
It should be noted that the Bill does not propose
to override the ACT Act as it affects private sector employers and employees.
Given that the ACT is a territory and not a state, this would be within
the Commonwealth’s power under section 122 of the Constitution and the
Commonwealth Parliament’s position as the paramount legislature for the
ACT.
The Commonwealth Government’s criticisms of the ACT’s
industrial manslaughter laws have been most clearly stated in the second
reading speech to this Bill. In this speech, the Minister for Employment
and Workplace Relations made the following points:
-
the ACT Act is ‘inconsistent
with the overall objective of an occupational health and safety legislative
framework which is to prevent workplace deaths and injuries’
-
it is also ‘contrary
to the unified and integrated OHS legislative system established under
the internationally recognised Robens model which all Australian jurisdictions
have adopted, including the ACT’
-
it ‘places employers
and employees in an adversarial environment and create a culture of
blame’
-
it ‘duplicates the existing offences already available under the
ACT Crimes Act and ACT OHS legislation’, and
-
it ‘singles out employers
for punishment after a death which neglects the involvement of a range
of parties such as another employee, manufacturers, and suppliers
of plant and equipment. This creates inequities and gaps in attributing
responsibility in the unacceptable event of a workplace fatality or
serious injury, and wrongly presumes that employers are solely responsible
for all workplace injuries and deaths’.(15)
The substantial issue raised by the Bill appears to be
about the regulatory approach to OHS that industrial manslaughter embodies.
Industrial manslaughter laws represent a punitive approach, in contrast
to an advisory or supervisory approach, to regulation. It has been opposed
on this basis by the Australian Chamber of Commerce and Industry (ACCI)
who have said ‘Employers need advice and guidance not enforcement and
punishment.’(16) Similarly, the Explanatory Memorandum
says—
The Commonwealth considers that creating industrial manslaughter
offences under the general criminal law is inconsistent with the overall
objective of the occupational health and safety legislation framework
to prevent workplace deaths and injuries, rather than just punishment
after the event. (17)
This statement seems to deny that punishment after the
event can help to prevent deaths and injuries by acting as a deterrent
for negligent or reckless behaviour. However, as with most criminal law,
the current OHS legislative framework does recognise a role for punitive
deterrents. Under the prevailing Australian model, punitive criminal sanctions
sit at the top of an ‘enforcement pyramid’ that starts with informal advice,
cautions and warnings at the base and moves to civil action in the middle.(18)
Where industrial manslaughter departs from the traditional
OHS regulatory model is that it is placed in the Crimes Act rather than
OHS legislation. As a result, its enforcement will be pursued by police
and the DPP, unlike other OHS infringements which are enforced by OHS
inspectorates. This was discussed above as a rationale for industrial
manslaughter laws, in that they underscore that workplace death, where
it is caused by negligence or recklessness, is an intolerable outcome
and should not be subject to the lower levels of the enforcement pyramid.
However, others have suggested that this approach could be counter-productive.
For example, ACCI says:
The response by employers to increased penalties of up to
$5,000,000 for the enterprise and fines plus a charge of corporate manslaughter
for the CEO, the board and other managers will be predictable. Instead
of entering meaningful and constructive negotiations with the authorities
to resolve cases of alleged breaches, there will be a change in approach
in that individual employers will engage in major legal proceedings to
protect the company and its measures from these draconian measures.(19)
This view appears to focus on what happens after a workplace
death, suggesting that OHS authorities would make more progress in preventing
the next death at that workplace with a co-operative rather than hostile
relationship. Industrial manslaughter laws focus on what happens before
a workplace death, hoping that fear of a significant penalty would prevent
the death in the first place. Where a death has occurred, it assumes that
the high profile prosecution of one company would prompt others to ensure
it does not happen to them.
The debate might be reduced to a central question about
whether tough punishments and deterrents or education and compliance assistance
are better means of preventing undesirable behaviour. This is a perennial
dilemma that legislators would be familiar with as it animates debates
in almost every area of regulation, from corporate governance to drug
policy.
It should be noted that industrial manslaughter laws
put death into a special category, as an intolerable outcome of an unsafe
workplace. It does not necessarily affect the mix of punitive/educative
enforcement strategies that might apply to other workplace injuries or
OHS contraventions that have not (yet) resulted in injury.
The Minister’s argument that the industrial manslaughter
law duplicates existing laws seems inconsistent with his insistence that
it is a flawed law that requires the present Bill’s intervention. Commonwealth
intervention would rarely be warranted to overcome merely superfluous
legislation. As discussed above, and as the present Bill recognises, the
ACT Act does go beyond the previously existing law.
The Minister’s argument that industrial manslaughter
singles out employers for liability is at odds with the central rationale
of the ACT legislation: that under previous law corporate employers were,
unlike other actors, almost immune from criminal prosecution for workplace
death. In particular, existing general manslaughter laws were and remain
adequate for the prosecution of co-employees. Similarly, manufacturers
and suppliers could be prosecuted where they were natural persons. In
this way, industrial manslaughter fills, rather than creates, gaps and
inequities in the attribution of criminal responsibility.
Parliament may want to consider whether it is appropriate
that government agencies and GBEs should be immune from criminal liability
that would apply to private businesses and citizens in the same circumstances.
To the extent that state and territory laws may bind
the Commonwealth, the Commonwealth clearly has the constitutional power,
from various heads, to override any such law. Conversely, the Commonwealth
may decide to relinquish or limit its immunity from state laws. Whether
it does so or not is a matter of policy.
In the field of OHS, it is long established that the
Commonwealth, its agencies, employees and GBEs should be regulated by
a separate national system of laws governing standards, enforcement, compensation
and rehabilitation.(20) Accordingly, if industrial manslaughter
is considered to be a significant re-shaping of OHS regulation, it might
be considered consistent with current practice to ensure that Commonwealth
agencies and GBEs are not affected by it. On the other hand, one feature
of the Commonwealth’s OHS regime is that it allows any state or territory
law ‘that promotes the occupational health and safety of persons’
to operate concurrently, to the extent that it is not inconsistent with
Commonwealth law in the area.(21) To the extent that industrial
manslaughter laws do ‘promote the occupational health and safety of workers’,
and are capable of operating alongside the Commonwealth OHS regime, the
present Bill
proposes derogation from that principle.
If industrial manslaughter is seen primarily as a criminal
law, different considerations might apply. As a general rule, Commonwealth
employees are subject to the criminal laws of the states: for example,
a Commonwealth employee who commits a traffic offence while driving in
the course of their employment may be prosecuted under state laws. Similarly,
a Commonwealth employee who causes the death of a colleague through criminal
negligence or the commission of an unlawful and dangerous act might be
prosecuted under state or territory law for manslaughter (the general
crime). A similar principle would apply to Commonwealth GBEs in respect
of any corporate offences. In the absence of Commonwealth legislation
specifically providing that state or territory criminal law applies, the
picture is less clear with respect to the corporate criminal liability
of other Commonwealth agencies.(22)
Given that other state and territory criminal law would
normally apply to Commonwealth employees and GBEs, at least, is it appropriate
for the Commonwealth to override one particular criminal law?
The ACT government has argued against doing so on the
basis that ‘it will create … a situation in which some workers will be
covered by one law and other workers will be covered by another and it
makes a very simple law a lot more complicated.’(23) The ACT
Chamber of Commerce has reportedly called on the Commonwealth to override
the entire ACT Act, not simply for Commonwealth agencies, arguing that
‘in the ACT, where we have a border running through the business community,
we would have three sets of government regulation: ACT, Commonwealth and
NSW’.(24) However, given that the ACT Act does not apply to
most Commonwealth agencies anyway, industrial manslaughter laws already
apply to some workers in the ACT and not others. The present Bill simply
changes where that line is drawn.
At a basic level, the unequal application of the criminal
law might be considered unjust. Is it just, for example, for Optus to
be subject to industrial manslaughter laws while Telstra is not? From
the opposite perspective, is it fair that the family of a worker killed
by an employer’s recklessness can see the employer prosecuted if the victim
worked in the private sector but not in the Commonwealth public sector?
Further, immunising the Commonwealth from a particular
state or territory criminal law could be thought to undermine the democratic
rights of that state or territory’s electors, as expressed through their
legislatures. This view has been taken by the ACT Government which has
promised to ‘resist any attempt, any move to override a democratic government.’(25)
On the other hand, there are many circumstances in which
the Commonwealth and other Australian governments do immunise themselves
from the application of their own, or other governments’, laws. A relevant
example is the Occupational Health and Safety (Commonwealth Employment)
Act 1991 (OHS(CE) Act) itself which provides that the Commonwealth
cannot be prosecuted for an offence under the Act (although notably, that
Act does allow that Commonwealth GBEs can be prosecuted, like their wholly
private sector equivalents).(26)
At the time of writing, the Federal Parliamentary Labor
Party has not made any public comment on whether it will support the present
Bill. However, the 2004 ALP Conference did congratulate the ACT Government
on successful passage of the industrial manslaughter law.(27)
The Stanhope Labor Government of the ACT stands by its law and has opposed
the present Bill. Further, the Labor Governments of Western Australia,
South Australia, Victoria and Queensland have considered or are considering
similar laws in their own jurisdictions.
The Australian Democrats do not appear to have made a
public statement regarding their position on the present Bill, nor do
they appear to cover the issue of industrial manslaughter in their national
workplace relations policy available from their website.(28)
However, Ms Roslyn Dundas, MLA (ACT) from the Democrats supported ACT
Act when it was enacted last year.(29) Also, Democrat MLC (NSW),
the Hon. Arthur Chesterfield-Evans has introduced a private members bill
proposing industrial manslaughter laws for NSW.
Mr Michael Organ, the Member for Cunningham from the
Australian Greens, opposed the present Bill on the day it was introduced.(30)
He has also promised to introduce a private members bill proposing industrial
manslaughter as a Commonwealth crime.(31)
The main provisions are relatively straightforward. The
Bill would amend the OHS (CE) Act to insert proposed section 11A with
effect that the following would not apply to Commonwealth employers, employing
authorities or employees:
-
the ACT Act, specifically, and
-
any future state or territory law that imposes a criminal liability
in respect of a death that occurs during, or in relation to, the person’s
employment or provision of services and is prescribed by regulations.
According to the second reading speech, the criterion
that a law be prescribed by regulations has been added because otherwise
‘the new section could catch general criminal offences such as manslaughter,
murder or culpable driving’. It then states that ‘only these particular
type of laws [that is, industrial manslaughter] would be prescribed.’(32)
The Bill itself does not guarantee that its provisions
would not be used to create regulations that immunise Commonwealth agencies
and employees from the general criminal offences the Minister mentioned.
Drafting that targeted the unique elements of industrial
manslaughter more carefully might have avoided this problem. However,
the difficulty of achieving this without creating loopholes that would
allow states and territories to achieve the same outcome with differently
worded law can be appreciated. An alternative approach might have involved
focussing on exactly what aspects of industrial manslaughter laws are
opposed. For example, given that the most significant effects of industrial
manslaughter laws are the increased penalties and the application to companies,
a more targeted approach might have been to set a cap on penalties applicable
to the Commonwealth or to reassert that the Tesco principle applies
to the Commonwealth and its agencies.
Scope of the Bill’s proposed immunity
The Bill proposes that immunity from state and territory
industrial manslaughter laws be extended to the following:
-
‘Commonwealth
employers’ which include:
-
the Commonwealth (for
example, Commonwealth departments)
-
Commonwealth agencies established for a public purpose or under
Commonwealth legislation (for example, the Australian Competition
and Consumer Commission or Comcare), and
-
companies incorporated in Australia in which the Commonwealth
has either a controlling or substantial interest (for example,
Telstra). (A controlling interest requires the ability to cast
more than half the votes at a general meeting, control of more
that half the share capital or control of the composition of the
board of directors; a substantial interest requires control of
more than or as many votes at a general meeting as any other single
person.)
-
‘employing authorities’, who
are those people or bodies responsible for employees and contractors
performing work for a Commonwealth entity, or responsible for workplaces
where such work is occurring. For example, the Chief of the Defence
Force is the employing authority for the Australian Defence Force,
and
-
‘employees’, which, in general
terms, includes employees of all Commonwealth employers.(33)
The Bill’s proposed immunity will not extend to private
enterprises contracted by or supplying to the Commonwealth.
With respect to the ACT Act, the Bill would have a retrospective
action to the date that it was introduced, that is to 1 April 2004. The
ACT Act took effect from 1 March 2004, so this would leave Commonwealth
authorities with potential criminal liability only for deaths that occurred
in that month.
The Bill presents two key policy issues:
To summarise, the main effects of industrial manslaughter
laws, at least in the ACT form, are:
-
allowing prosecution
of companies, with potential penalties to include fines and ‘name
and shame’ orders
-
emphasising enforcement of negligently and recklessly caused workplace
death through the criminal justice system rather than through the
OHS system, and
-
emphasising that workplace
death is an intolerable outcome of an unsafe workplace.
The substantial issue of contention is whether punishment
of negligence and recklessness or education and assistance is the most
effective way to prevent workplace deaths.
Immunising the Commonwealth, its employees and GBEs from
state or territory law raises three concerns:
-
it can lead to unjust outcomes, with different judicial consequences
for the same conduct
-
it undermines a democratically
determined policy on what conduct should attract punitive sanctions,
and
-
it derogates from the principle that state or territory laws that
promote occupational health and safety should be allowed to operate
concurrent to the Commonwealth OHS system if they are capable of doing
so.
On the other hand, it might be argued that:
-
the Commonwealth has principal
legislative responsibility for the occupational health and safety
of its employees and should determine the shape of the OHS regime
covering them
-
the Commonwealth, as with other Australian governments, has regularly
immunised itself from state, territory or its own laws when there
have been strong policy grounds to do so, and
-
in its own OHS legislation, the Commonwealth has immunised itself
and its employees — if not its GBEs — from OHS offences, so it is
consistent to ensure that they are similarly immunised from state
or territory-based criminal law in the OHS area.
-
See R Sarre and J Richards, ‘Criminal manslaughter in the workplace:
what options for legislators?’, Industrial safety, January
– February 2004, p. 59 at pp. 60–61.
-
Mr Simon Corbell, ACT Legislative Assembly, Debates, 12 December
2002, pp. 4381–4384.
-
[1972] AC 153.
-
B. Fisse quoted in R Johnstone, Occupational Health and Safety
Law and Policy, 2nd Edition, Lawbook Co, Sydney, 2004,
p. 467.
-
Unreported, Supreme Court of Victoria, 14 June 1994.
-
Section 27, Occupational Health and Safety Act 1989 (ACT).
-
See R Johnstone, op. cit., pp. 44–45.
-
P F Prior, ‘Enforcement: An Inspectorates View’ quoted in A Clayton,
‘Regulating Occupational Health and Safety: The Need for a New Paradigm’,
Safety Science Monitor, Vol 7, Issue 1, Article III-1,
2003, p. 8.
-
Clayton, op. cit., p. 13.
-
Employment here includes ‘providing services’ in the event that the
worker is not an ‘employee’ in the legal sense.
-
Crimes (Workplace Deaths and Serious Injuries) Bill 2001 (Vic).
-
Part 2.5, Criminal Code 2002 (ACT) and s 7A, Crimes Act (ACT).
-
See T Blacksheild and G Williams, Australian Constitutional Law &
Theory Commentary and Materials, 2nd Edition, The Federation
Press, Sydney, 1998, pp. 449–452.
-
Bropho v Western Australia (1990) 171 CLR 1, 21.
-
The Hon. Kevin Andrews, Minister for Employment and Workplace Relations,
‘Second reading speech: Occupational Health and Safety (Commonwealth
Employment) Amendment (Promoting Safer Workplaces) Bill 2004’, House
of Representatives, Debates, 1 April 2004, p. 27916.
-
‘Industrial manslaughter and Workplace Safety’ ACCI Review,
Number 75, May 2001, p. 4.
-
The Hon Kevin Andrews, Explanatory Memorandum: Occupational Health
and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces)
Bill 2004, Commonwealth of Australia, 2004.
-
R Sarre and J Richards, op. cit., p. 59.
-
ACCI Review, op. cit., 6 (Note that $5,000,000 refers to proposed
Victorian legislation, not the ACT Act).
-
Under the Occupational Health and Safety (Commonwealth Employment)
Act 1991 and Safety, Rehabilitation and Compensation Act 1988
and their predecessors.
-
Section 4, OHS(CE) Act.
-
See discussion of whether criminal laws might apply to the Commonwealth
as a jurisitic entity in S Joseph and M Castan, Federal Constitutional
Law: A Contemporary View, Sydney, Lawbook Co, 2001, p. 213.
-
Comments by Ms Katy Gallagher, MLA, Minister for Industrial Relations
(ACT) in D McLennan, ‘Federal bid to eat away at ACT law’, Canberra
Times, 2 April 2004, p. 6.
-
Comments by Mr Chris Peters, CEO of the ACT Chamber of Commerce in
M Priest ‘Safety Law Concerns’, Australian Financial Review,
2 April 2004, p. 7.
-
Comments by Ms Gallagher in M Priest ‘Safety Law Concerns’, Australian
Financial Review, 2 April 2004, p. 7.
-
Section 11, OHS(CE) Act.
-
National Platform and Constitution 2004, Australian Labor
Party, Canberra, 2004, p. 51. Available at: http://www.alp.org.au/policy/platform2004/index.html.
-
Available at: http://www.democrats.org.au/policies/.
-
Ms Rosyln Dundas, ACT Legislative Assembly, Debates, 27 November
2003, p. 4855.
-
M Organ, ‘Howard insults dead workers’, Press Release, Parliament
House, Canberra, 1 April 2004.
-
M Organ, ‘Greens MP to Observe 1 Minute Silence’, Press Release,
Parliament House, Canberra, 28 April 2004.
-
The Hon. Kevin Andrews, Minister for Employment and Workplace Relations,
‘Second reading speech: Occupational Health and Safety (Commonwealth
Employment) Amendment (Promoting Safer Workplaces) Bill 2004’, House
of Representatives, Debates, 1 April 2004, p. 27916.
-
See s 9, OHS(CE) Act for a more detailed definition.
Jacob Varghese
12 May 2004
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2004
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