Page 2824 - Week 09 - Thursday, 27 September 2007
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It really does make a mockery of the government’s professed commitment to human rights. They seem consistently to breach their own Human Rights Act. In relation to strict liability in particular, we see that very often. We have seen it in other cases. We saw it in the case of the draconian powers to bring someone before a tribunal with no notice and with no particular period of limitation. We see how they have made a mockery of their statements that their legislation complies with the Human Rights Act. It is clear here that, if the Human Rights Act provisions are worth the paper they are written on, exposing individuals in our community to these kinds of offences without actually having to prove the case goes well beyond those provisions. I will be supporting Mr Mulcahy’s proposed amendments, which would improve this. The government should take another look at this matter. This is bad law, and it should be rejected as such.
DR FOSKEY (Molonglo) (5.22): The Greens have supported improvements in occupational health and safety requirements, and the government’s bill, the Occupational Health and Safety Amendment Bill 2007, provides a series of changes which are aimed at improving the OH&S legislation in the territory. The amendments to the safety duty offences in the current Occupational Health and Safety Act and in the Dangerous Substances Act are sensible. These amendments also reflect the original intent of the Assembly when it passed these provisions, as evidenced by the wording of the original explanatory statement.
These amendments are a reminder that, even with the best drafting practices and practitioners—and I am generally very impressed with the professional standard of the legislative drafting office—mistakes can be made, and it is appropriate to acknowledge these mistakes and rectify them as soon as possible after they have been identified.
Strict liability is an ongoing issue of concern, and a report into the matter is currently in the process of being prepared by the legal affairs committee. I was concerned about the application of strict liability in this case because on first appearances the maximum penalty of 1,500 penalty units or five years imprisonment or both seems excessive, especially with reference to the Senate recommendation of a maximum of 60 penalty units for strict liability offences. However, section 48 (1) (d) of the legislation ensures that the person would have to have been reckless or negligent in their actions before they could be found guilty of a safety duty offence under this section. I am reassured by the fact that all four elements of an offence under section 48 (1) would have to be proven.
It is anomalous that a person who is under a safety duty, and who creates a substantial risk of serious injury, or even causes a death, in the case of section 46 of the Dangerous Goods Act, can avoid a conviction under this act merely because they can convince a court that there is insufficient evidence to prove beyond reasonable doubt that they were aware that they had such a duty. I look forward to hearing Mr Mulcahy explain why he thinks that a person who has been grossly negligent should be able to avoid prosecution on the basis of such a flimsy and ultimately irrelevant defence.
It is also the case that the maximum penalty will only be applied in the worst case scenario. Even then, the sentence will be at the discretion of a judge, and the context
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