Page 3502 - Week 11 - Thursday, 15 November 2007
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These contradictory responsibilities, of being both the regulator and the enforcer, seem to put the CEO of JACS in either an actual or an apparent conflict of interest situation. And in these matters appearances do matter. The actual track record and standard of probity of the office holder is not the major factor when tribunals and courts are called to decide whether a decision has been tainted by bias. The common law test for bias is, generally speaking, whether or not a fair-minded and well-informed observer might conclude from all the circumstances that the decision maker was biased. While it may save costs and duplication, in this case I think the government has gone too far in compromising the integrity of the decision-making process in such a critically important area of its duty of care and responsibility.
By the way, I do not want any of this speech to be taken as any criticism of the current CEO of JACS. As I have been at pains to point out, the problem is generated by the institutional arrangements and the apparent lack of independence that these arrangements create. It is has been suggested that a similar lack of independence has resulted in adverse outcomes in the case of the federal OH&S commissioner. Unions ACT have advised that arranging access to commonwealth sites within the ACT is difficult and that the Office of Regulatory Services has to give several days notice before they can attend a site, even if an accident has occurred. This is, at least in part, due to the federal government taking control of the National Occupational Health and Safety Commission and, while I do not have sufficient personal information to make a definitive judgement, it certainly does suggest a possible lack of independence for the federal OH&S commissioner.
One of my staff members tells me a story from when he was working on large building sites and he was instructed to dismantle substandard and dangerous scaffolding—creations featuring 44-gallon drums, bricks and counterweighted planks—whenever management got wind of either a union or government inspection. I imagine these practices still occur and it is farcical to support a system which requires prior notification of union and government safety inspections.
My staff contacted Mr Corbell’s office about the consultation process for this bill and I would like to thank Mr Corbell and his staff for their assistance. Their response noted that consultation occurred with the OH&S Commissioner and that positive feedback had been received from the construction industry. It was also stated in the response that the former OH&S Council, with union representation, was aware of cabinet’s decision but as the council “has not sat for nearly six months” they were unable to consult.
This raises the issue of the operational problems that are hampering OH&S functions at present. The current commissioner is acting in that role and has been doing so for months. As I have noted, the OH&S Council has not met since June. Anecdotal evidence tells me that the existing bureaucratic duplication and division of responsibility are wasteful and counterproductive. Interminable debate seems to be common amongst the relevant departments and relevant parties, which detracts from the more outcomes-focused approach which OH&S demands.
OH&S regulation promotion, no matter who manages it, is only as good as the person in control. We need to appoint a strong, experienced commissioner with the power to
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