Page 2833 - Week 09 - Thursday, 27 September 2007
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I am concerned that the omission of this clause would actually endanger the bulk of employees and other people who may be exposed to serious risk by the deliberate, negligent or reckless actions of people who have a safety duty. It is deeply concerning that we are debating this legislation as though it were a case of employers versus unions—read “workers”—because absolutely everyone has a stake in safe workplaces. If these offences were wholly strict or absolute liability offences, then I would agree with Mr Mulcahy’s amendments. It would be inappropriate to have such serious penalties without a qualifying mental element to the offence. But these are not purely strict liability offences; they already possess a mental element. The prosecution still has to prove that a defendant was reckless or negligent in creating such a serious risk.
The bill simply removes the possibility that a person who caused such a serious danger can argue that they should escape punishment because they were not aware that they had a duty not to create a serious risk, or, alternatively, that they can convince a court that there is a lack of evidence to prove beyond reasonable doubt that they were so aware. That is why it has put such a huge onus on the government to make sure that absolutely every employer in the ACT is totally and well aware of the provisions. I agree with the Attorney-General that it should not be a relevant factor whether a person is aware of his or her safety duty. It defies reason and any sense of social responsibility to suggest that a person should be allowed to put other people in serious danger and escape punishment by arguing that he or she was not aware that they should not have done it.
Mr Mulcahy may be concerned that a person could receive an unduly harsh sentence if these strict liability clauses go through. Indeed, he clearly is concerned, because he has said so. But it is naive to imagine that a judge would impose an incredibly harsh penalty simply because the maximum available penalty gives him or her the ability to do so. If the circumstances of a particular prosecution contain extenuating circumstances and lessen the culpability of an offender, then a judge will, presumably, have his or her attention drawn to those circumstances and adjust the sentencing accordingly. In any case, a person convicted under these provisions has the opportunity to appeal against any oppressive sentence.
I agree that both carrots and sticks are required to create a safety culture, particularly where private businesses are concerned. Most of these provisions aim to put employers on notice that they must provide a safe work site and ensure that the supply of dangerous substances and plant is carried out in a safe manner. They are commendable, and the government’s bill aims to restore their efficacy to the level that they were originally intended to provide.
Employees and members of the public should be entitled to expect that people under a safety duty—employers, suppliers of dangerous goods and managers of premises—take appropriate measures to ensure their safety. It is appropriate that criminal penalties should exist to punish people who fail to comply with their safety duty in addition to any civil remedies that may be available to people who have been injured, or to the estates of people who have been killed as a result of such failures. Those are the reasons why I will not support the amendments.
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