Page 2832 - Week 09 - Thursday, 27 September 2007
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all agree that the presumption of innocence performs an important role in these contexts precisely because of the seriousness of an offence. I am a little amazed that this minister would proceed to these amendments, given the impacts on individual liberty that arise from these issues.
I think it is a set of legislative amendments that have been put through without probably a very good appreciation of the various shades of grey that can occur in relation to workplace industry and to workplace environments. I have to say that the opposition is very committed to workplace safety, but we are also committed to the rule of law and just and reasonable legislation going through this place. For that reason I will be opposing this clause.
DR FOSKEY (Molonglo) (5.51): I am going to be opposing the amendments to be proposed by Mr Mulcahy, the reasons being as I am about to describe. With regard to Mr Mulcahy’s opposition to the strict liability clauses, it would seem that he either is not aware of or does not care about the problems with section 48 of the OH&S Act and the various sections of the Dangerous Substances Act which led to this bill. As it is currently worded, the legislation renders the absolute liability which applies to the first element in each of these offences essentially redundant. If Mr Mulcahy thinks that absolute liability should not apply to the first element in each of these offences, then why do his amendments not include the repeal of the absolute liability provisions that apply to each of these offences? Leaving it as it is creates ambiguity, and it is poor drafting practice to allow provisions which are redundant to remain on the statute book.
Mr Mulcahy is asking us to approve a law that would allow a person who either causes death, in the case of section 44 of the Dangerous Substances Act, or who exposes other people to a substantial risk of death or serious harm to escape liability if they are able to convince a court that they had no knowledge that they were required to comply with a safety duty in the first place. That is a remarkable proposition. We are not talking about stubbed toes, bad smells or slippery floors. We are not even talking about a far-fetched possibility of injury. We are talking about a substantial risk of death or serious harm. Each of those factors would have to be proven beyond reasonable doubt by the prosecution. For some of the other sections dealt with by the amendment, the prosecution would have to prove that there was a substantial risk of serious harm, not just a risk of some vague harm. Serious harm is defined in the Criminal Code as harm that:
(a) endangers, or is likely to endanger, human life; or
(b) is, or is likely to be, significant and longstanding.
Now, this sets the bar pretty high. If the prosecution cannot prove all of these elements, it would be left with a prosecution under section 47 of the OH&S Act, which actually is a strict liability offence but it carries a maximum penalty of only 100 penalty units. This is a woefully inadequate penalty for a person who created the kinds of deadly situations that would be being prosecuted under the provisions that Mr Mulcahy is trying to weaken with his amendments. So this does raise the question of who the Liberals are trying to protect with these amendments.
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