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Legislative Assembly for the ACT: 2003 Week 10 Hansard (23 September) . . Page.. 3489 ..

MR STEFANIAK (continuing):

So we would be the only Australian state or jurisdiction going down this path. That, I think, should tell members of this Assembly something-especially when one considers the nature of our industry too-and the fact that a lot of those states and even the Northern Territory have workplaces where traditionally, because of the nature of the employment, there is a greater danger of people actually being injured.

Then there's the current law. I think it is bad law to have two offences for manslaughter. I hark back to the culpable driving matter. If we go down the path of having industrial manslaughter, why not manslaughter for under 18-year-olds or manslaughter for women, or things like that? It does not make good legal sense to have two offences for manslaughter.

Culpable driving is a good case in point. If the driving is of such a bad standard and a death arises, the offence of manslaughter has been brought. With industrial manslaughter, albeit rarely, there have been instances of people prosecuted.

In one recent case in Victoria, a person was successfully prosecuted for industrial manslaughter. I have been advised that the facts in relation to that were that a director, someone who owned the company, worked in the building, went out and said, "I am going out to lunch."He said to his foreman, "Fred, make sure the vat's cleaned."The foreman then, without properly supervising the young apprentice, had him clean the vat-it was a chemical vat-and the apprentice died.

The boss actually went to jail as a result of being found guilty of manslaughter. If anything, I thought perhaps the foreman would be the one responsible because he was duty bound to supervise the apprentice. But no, the court said it was manslaughter and it was the boss who went to jail.

So it is not impossible as a result of incidents in the workplace to have a manslaughter charge brought if the evidence warrants it. It is rare. The evidence that was put before this committee suggests that, if the standards here are no different than normal manslaughter, it is going to be very, very difficult, in our situation, to ever see this particular act, if it becomes an act, being used. Again, why on earth have it in that case, apart from the fact that we are now creating a second offence of manslaughter, which is certainly very strange to me and something that has not happened anywhere else in this country-for obvious, very good reasons.

If, indeed, there are some lesser standards-not so much standard of proof; the standard of proof is beyond reasonable doubt, and that is enshrined in our law and I doubt very much if anyone is ever going to get rid of that; and nor should they-if the elements are somewhat different, if there are lesser elements to actually prove industrial manslaughter as opposed to manslaughter under the normal law, then that is of real concern, especially when the penalties for this are greater than for normal manslaughter. It is 25 years maximum as opposed to 20 years maximum, and some very significant fine provisions and other provisions to impose financial penalties on corporations. It is not that I have a particular problem with strong penalties for serious offences-far from it.

But the penalties here are even greater than what they are for normal manslaughter. If the elements somehow involve a lesser degree of culpability, if they are easier to prove, then

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