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Legislative Assembly for the ACT: 2003 Week 13 Hansard (27 November) . . Page.. 4857 ..

MS DUNDAS (continuing):

they become family through their work. Small businesses and small business owners I have spoken to want their workplaces to be safe because they value their employees. This legislation is not out to catch them. It is not out to catch those who are doing the right thing.

Many of the employer groups I spoke to were concerned about the use of the word "negligence". I understand their concern since individuals, businesses and organisations are found to be negligent and are forced to pay compensation for what can be seen as trivial oversights that result in injury. In motor vehicle accidents, a tiny error of judgment or an inadvertent act is often held to constitute negligence, resulting in hefty damages.

However, criminal negligence is significantly different to civil negligence. We are talking today, with the industrial manslaughter legislation, about criminal negligence. The test of criminal negligence, or criminal recklessness, is a very tough one. It is a pity that, when we talk about criminal and civil negligence, we use the term "negligence"in both of those instances. It has only served to make people anxious about the effect of this bill when, really, they should not be.

Some people have argued that the bill needs to be amended to make the distinction between civil and criminal negligence very clear; I think that is what one of Mr Pratt's amendments seeks to do. But there is a substantial amount of case law explaining the difference between the two concepts. Courts and lawyers draw upon case law in prosecutions. I would like to quote Lord Chief Justice Hewart in the case of R v Bateman. I quote:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as "culpable,""criminal,""gross,""wicked,""clear,""complete."But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

It is clear that we are talking about what a jury would see as disregard for the life and safety of others. If there are employees out there who are disregarding the life and safety of others, they should be tried for industrial manslaughter.

Of course, in criminal prosecutions, this level of negligence must be established beyond reasonable doubt, not merely on the balance of probabilities, as is the case in civil law. In fact, there are many instances where a criminal prosecution for a negligent or reckless act fails but the civil action for damages succeeds.

There are two ways in which the test is higher than in civil law. First, the act of negligence must be wicked, not merely that a person or a corporation was less careful than you might expect. Second, that the person or corporation was wickedly negligent must be proved beyond reasonable doubt. These two requirements mean that I am confident that no person or corporation would be convicted unless an ordinary person would agree that they were criminally culpable.

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