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Legislative Assembly for the ACT: 2002 Week 14 Hansard (12 December) . . Page.. 4383 ..

MR CORBELL (continuing):

The new offences will apply where a worker is killed in the course of his or her employment by an employer or, in the case of contractors and outworkers, where the worker is killed in the course of their engagement. "Worker"is broadly defined in the bill to include employees engaged under a contract of service, independent contractors, outworkers, apprentices, trainees, and volunteers.

The bill's provisions recognise the changing nature of the employment relationship in Australian society. We have seen the increasing use of contracting arrangements as a means of avoiding the obligations of employers to their employees. We have seen the intensification of competitive pressures on subcontractors, particularly in the construction and transport industries, which has the potential to undermine safety controls at these workplaces. For this reason, it is essential that the new offences can apply to people who engage workers under contracting arrangements. This bill defines workers and employers in such a way as to capture the chain of responsibility where contracting arrangements are used.

A worker may be employed under contracting arrangements where there are several layers of contracting between the head contractor and the worker. If the worker is killed, any number of principals above the worker in the contracting chain could be charged with and found guilty of the offence if it can be proved that their conduct caused the death of the worker.

It is important to understand that the proposed legislation will not impose a new liability on employers, but will enable the proper and effective prosecution of an employer whose reckless or negligent conduct has resulted in the death of a worker. It will introduce financial penalties that can be applied to corporate offenders and that are sufficiently high to have a deterrent effect on larger corporations. The offence will be subject to chapter 2 of the ACT criminal code and, in particular, the new corporate criminal responsibility provisions in the code. Very significantly, these provisions establish the concept of corporate culture.

Mr Speaker, these provisions will extend corporate criminal responsibility to cases where a corporation's unwritten rules, policies, work practices or conduct tacitly authorise non-compliance or fail to create a culture of compliance consistent with its responsibilities and duties of care. This means that corporations will be required to have management arrangements in place that positively promote safe systems of work.

The proposed senior officer offence will apply to senior officers of corporations, to executives and senior decision makers of other types of employers, such as unincorporated associations, and to ministers and senior executives of government bodies. In the case of corporations that are also government entities, such as territory-owned corporations, both senior corporate officers and senior government officers, such as ministers, may be held responsible for an offence.

The Victorian industrial manslaughter legislation contained controversial provisions regarding the vicarious liability of senior officers of corporations for the acts of the corporation as employer. These vicarious liability provisions, which included a reduced standard of proof than normally applies to criminal offences, attracted considerable criticism and opposition.

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