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Legislative Assembly for the ACT: 2003 Week 10 Hansard (23 September) . . Page.. 3495 ..

MS TUCKER (continuing):

Basically, as far as I can ascertain, no-one is disagreeing that death in the workplace is a very serious issue. The concerns that have been expressed by people are well articulated, as I said, in the Canberra Times today. It is quite wrong, though, to suggest that an employer will be up for 25 years jail for something they had no control over, and anyone who has read this legislation will know that that is not the case.

A person will commit an offence only if they cause the death of a worker, are reckless about causing serious harm to the worker and/or are negligent about causing the death of a worker. Each of these matters must be proved by the prosecution to the criminal standard of proof beyond reasonable doubt. Both negligence and recklessness are defined in the Criminal Code 2002. This bill does not vary these definitions, and both terms have been the subject of extensive legal debate before the courts.

It is very important to understand that in this bill there is no vicarious liability. An officer cannot be liable for prosecution just because he or she occupies a particular position in an organisation. Recklessness requires the person to be aware of a substantial risk and, having regard to the circumstances known to the person, it is unjustifiable to take that risk.

I will just quickly refer to the argument-I think this was also in the paper-that high-risk industries are going to be particular vulnerable. That shows a complete misunderstanding of the basic premise of this law. It is about unjustifiable risk; it is about knowing that something is going to happen that could be avoided. Clearly if we have a high-risk industry, the people who engage in it know-security guards or whatever; it is not like sitting behind a computer all day-if that security guard has not been properly trained, has not been given ways to deal with dangerous situations which are reasonable, then there is a culpability or a liability. The point that really has to be made is that this legislation puts a very, very high level, a very high bar.

To be liable for prosecution, a person requires knowledge of the substantial risk and their actions must be judged having regard to their knowledge of the circumstances. As well, negligence requires such a great falling short of the standard of care that a reasonable person would exercise in the circumstances.

The actual definition of the offence provides a number of strong requirements which must be met before criminal liability can be established. I repeat: for a person to be convicted of industrial manslaughter, they must be charged on the basis of their own actions or omissions, and negligence or recklessness causing death must be proved beyond reasonable doubt.

This bill is actually necessary because of the range of contractual employment relationships which have blurred lines and created gaps in accountability. In the report we go into some detail about this. Basically, legal responsibilities of corporations are dealt with in the Criminal Code 2002. The issue facing a prosecutor is finding intent of a corporation, and the bill does not use vicarious liability, as I said; so the question is about identification. In the committee we go to some length about this.

This identification of a range of employment relationships is central to the bill. It recognises the change in nature of the employment relationship in Australian society.

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