Opposition Senators' report
2.1
With the introduction of the ACT Government's Crimes (Industrial Manslaughter) Amendment
Act 2003 on 1 March 2004, the
ACT Government became the first jurisdiction to legislate an offence of
industrial manslaughter. This triggered the Government's introduction of the
Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting
Safer Workplaces) Bill in the last parliament,
and its re-introduction in the current parliament.
2.2
The Opposition agrees with the rationale behind the ACT
Government's legislation and supports the evidence provided by the ACT
Government, ACTU and CPSU submitted for this inquiry. These submissions oppose
the Commonwealth's bill which overrides the new insertions into Part 2A of the
ACT Crimes Act, allowing for the prosecution of employers in Commonwealth
authorities and Commonwealth government business enterprises on the charge of
industrial manslaughter. A further concern for the Opposition is that this bill
will also override any state or territory plans to introduce similar
legislation.
2.3
The Opposition is concerned about the Government's
action. It erodes the ACT Government's power to protect the community without
federal intervention. The CPSU supports this view and states that:
...ACT territorians, like all Australians, have the democratic
right to vote for their chosen representatives...to enact legislation that best
represents the policies of that government.[10]
2.4
Reasons for the ACT's legislation are outlined in the
submission of the ACT Government. The ACT Government's evaluation of OH&S
laws identified problems in regard to private employers who are responsible for
OH&S administration, and who could evade the responsibility of breaches of
OH&S legislation by hiding under a corporation blanket. The same
possibility exists for similar evasion by managers and senior executives in the
public sector who are responsible for ensuring the enforcement of OH&S
rules. The ACT authorities also responded to public opinion that the charges
and penalties were deficient in cases where accidents resulted in deaths in the
workplace.
2.5
The ACT Government blamed cost-cutting as a threat to
compliance with OH&S with regulations. Employers were likely to cut costs
in areas which are classed as 'frills', such as OH&S, and fail to maintain
an appropriate level of supervision over OH&S measures.[11]
2.6
Prosecution of corporate employers is difficult. The
ACT industrial manslaughter legislation now provides an improved mechanism to
facilitate prosecution of companies and individuals. In defining a corporation
as a legal person, able to be prosecuted for a criminal offence, the ACT
Government intends that the law will be a forceful deterrent to those companies
which evade their responsibility in providing a safe workplace. The Opposition
believes that this is an innovative move to encourage corporations to apply
effective OH&S principles and procedures.
2.7
Under current OH&S legislation it is easy to
prosecute companies for any breach of the OH&S laws. Fines, rather than
jail terms are imposed on these companies because the legislation does not
differentiate between breaches which results in minor injuries, or death. In
the case of breaches which result in workplace deaths, these have proven
difficult to prosecute and do not impose appropriate penalties.
2.8
The Occupational
Health and Safety Act 1989 (ACT) provides a 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.[12]
2.9
Those who argue for the industrial manslaughter laws
state that more substantial penalties would be effective as the charges would
be seen as genuinely criminal rather than quasi-criminal under the current
OH&S regulatory regime. Clearly the existing OH&S legislation is:
...'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.[13]
2.10
Changes to the law in regard to workplace deaths, so as
to put these within the criminal jurisdiction, will emphasise the value which
society places on human life and on the dignity of employment. Current attitude
to safety in some workplaces carries with it the notion of employees as assets
which are attached to a business. This is not much further advanced than a past
practice of seeing employees simply as units of labour, and by extension, the
property of employers. The symbolism of industrial manslaughter legislation is
therefore of equal significance to regulations enforcing practical OH&S
measures. With prosecution administered by the police and Director of Public Prosecutions, rather than by an OH&S
inspector, industrial manslaughter legislation ensures that workplace death is
understood to be an intolerable risk, treated with greater severity than that
of other OH&S infringements.[14]
Recommendation
Opposition senators recommend to the Senate that the bill be rejected.
Senator Gavin
Marshall
Deputy Chair
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