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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Thursday, 12 February 2004) . . Page.. 333 ..

I accept the Democrats’ argument that penalty provisions are large for contraventions of prohibition notices, but I will not be supporting the Democrats’ amendments to reduce these penalty provisions in clauses 119 and 128. Whilst I accept the fact that these penalties are large, particularly for offences that do not amount to criminal responsibility, I believe hefty penalties will equate to greater compliance.

I will be supporting the government on all provisions they put forward on enforcement powers, emergency powers and administrative reviews of decisions. Without these enforcement and emergency powers this bill would have no teeth and would be legislatively weak. That is the main reason this legislation needed to be reviewed in the first place. Enforcement and its effectiveness will be the measures of how successful this bill is. If the bill provides, in reality, enough power for inspectors to carry out the law to the extent it is intended, then the bill will be a success and the ACT will be a safer place.

With regard to procedural and evidentiary provisions, I encountered a number of problems raised by Ms Dundas and her office. The clause which caused me the most concern was clause 192 (3) which, in essence, states that a person is deemed to have the state of mind of his representative if the representative acted within the scope of the authority, or apparent authority, and the representative had the state of mind. This means that an employer or someone in charge of a business or firm who is not on site does not relinquish his duty of care and is as responsible as his representative for any contravention of the act or breach of duty of care.

For example, a business owner hires a foreman to run his day-to-day on-site business. If this foreman negligently, recklessly or intentionally breaches his duty by, for example, storing a dangerous liquid in a manner that is not safe, and in contravention of the act, then the business owner is deemed to be as culpable as the foreman. This is the case unless, under clause 192 (5), a business owner can establish that he had taken all reasonable precautions and that appropriate diligence was exercised in order to avoid contravening the act. This is where my concern is raised. My primary concern is that there is a presumption of guilt rather than a presumption of innocence and, subsequently, the need for a defendant to prove his innocence. This is opposed to one of the basic principles of our legal system. Therefore, I will be opposing this clause.

I will be supporting the government’s amendment to remove clause 197 (2) (d) and the Democrats’ amendment to remove clause 197 (5). I believe clause 197 (2) (d) provides too much discretion to the chief executive to print what he or she wants. I am glad to see that the minister has put forward an amendment on this. I will be supporting the removal of this clause at the appropriate time. The reason I am opposing clause 197 (5) is that the information published by the chief executive under this provision is taken to be a fair report. This is the case no matter how unfair the report is. On this basis I will be opposing clause 197 (5).

I am supportive of the overall intentions of the Dangerous Substances Bill 2003 of attempting to increase the safety of the ACT, through ensuring that dangerous substances are stored, transported and handled in a safe manner. I will also be supporting Ms Tucker’s amendment ensuring a review of this legislation in two years time.

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