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Legislative Assembly for the ACT: 2001 Week 4 Hansard (28 March) . . Page.. 1103 ..
MR SMYTH (continuing):
Safety to the Occupational Health and Safety Council, and the year 2000 legal advice from the Government Solicitor's Office in relation to Mr Berry's bill. I present the following papers:
Occupational Health and Safety Amendment Bill 2000 (No 4)-Facsimile copy of advice from the ACT Government Solicitor to Manager, Workplace Safety Policy, Industry Policy and Regulation Branch, Department of Urban Services, dated 20 December 2000.
Occupational Health and Safety Act-Infringement notices for offences-Facsimile copy of advice from Director, Criminal Law and Justice to General Manager, ACT Workcover, dated 4 September 1998.
The current legislation does not lend itself to this best practice compliance model. Adding on-the-spot fines to the current inappropriate legislative framework in the piecemeal manner that Mr Berry proposes will not work.
It is only fair, if a reasonable excuse could be provided by the person to whom it is proposed to issue a fine, that the relevant evidence should be heard and the matter determined by a court, not by a WorkCover inspector. Let me give an example. Mr Berry's bill will enable on-the-spot fines to be issued for section 27 of the Occupational Health and Safety Act 1989. Section 27 (1) provides:
An employer shall take all reasonably practicable steps to protect the health, safety and welfare at work of the employer's employees
Section 27 (2) provides that an employer will be guilty of the section 27 (1) offence if the employer fails to have regard to a number of matters, including the working environment, facilities for welfare at work, safety instruction, supervision, monitoring, and the availability of medical treatment.
The offence created by section 27 of the act is a general offence which is determined having regard to a number of variables. It requires the application of analysis and judgment, as opposed to mere observation, to determine whether the offence has been committed. Such offences are not appropriate for infringement notices. It is for the court to decide whether an employer has taken all reasonably practical steps to render a workplace safe, not a WorkCover inspector. Even police officers may issue infringement notices only in very limited circumstances where there can be no real argument that an offence has been committed. To do otherwise could lead to abuse of power and infringement of civil liberties.
A substantial review of the existing legislation is necessary before on-the-spot fines can be successfully implemented. On 28 February this year I released for public consultation the regulatory impact statement on the Occupational Health and Safety Act 1989 and related legislation. The RIS examined the rationale for the government's intervention in this area-problems with the current legislative regime and the cost of workplace accidents and disease borne by the community, industries and particularly workers. The RIS makes a number of important recommendations for legislative reform, including the recommendation to develop a fully integrated regulatory regime, for both workplace safety and dangerous goods, based on complementary duties of care.
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