Page 3433 - Week 09 - Thursday, 20 August 2009

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always apply. It seems that this legislation is comprehensive enough, given the ACT’s more liberal reasonable-steps exemption, to provide adequate defence for industry participants who believe they are complying with this legislation.

Secondly, I understand that the defence of complying with an industry code of practice will not apply in New South Wales. While jurisdictions ought not feel obliged to conform to the regulation of their neighbouring states, in this case we are talking about transport, which is in a sense interstate.

As the ACT is in the New South Wales region and would be impacted by that, the New South Wales approach in this instance is important. As it happens, New South Wales is one of the states that has already rejected the proposal to include industry code as a reasonable step for defence and in that context there is no compelling argument in my mind for the ACT to adopt it.

MR STANHOPE (Ginninderra—Chief Minister, Minister for Transport, Minister for Territory and Municipal Services, Minister for Business and Economic Development, Minister for Indigenous Affairs and Minister for the Arts and Heritage) (10.41): The government’s position is similar to that of the Greens party. The government will not support amendments 4, 6 and 7, though we do support amendment 5. Our reasons for not supporting amendments 4, 6 and 7 are, as I say, similar to those that Ms Bresnan has just expressed. The amendments are indeed consistent with clauses in the national model Road Transport (Compliance and Enforcement) Bill which provide that a road transport authority may issue guidelines with respect to the preparation and contents of industry codes of practice and the registering of such codes.

The government has, however, received advice about the national provisions and consequently the opposition’s proposed amendments do raise liability concerns. Members may recall that in my earlier speech I stated that the New South Wales Road Traffic Authority advised that it decided not to register industry codes due to liability concerns and difficulties that may arise in prosecutions. Although the intention of the model provisions is that the registration of industry codes should not be considered to be an endorsement of the code, liability could arise if someone is injured while complying with the code. A court may take the view that, in registering a code, the Road Transport Authority is endorsing the content of the code.

Similar concerns have been expressed by the ACT Department of Justice and Community Safety. The outcome of the decision not to register codes means that defendants may still call into evidence compliance with an industry code but the code will not have explicit legal status under the act.

It is for those reasons that the government did not include the national provisions in the bill in the first place and it is for those reasons that the government does not support these amendments and does not believe that these amendments should be supported.

MR COE (Ginninderra) (10.42): The opposition, of course, disagree with the crossbench and the government on this issue. We think that codes of practice are a very good way of promoting best practice in the industry. I think they have scope to be much more evolutionary than regulations or legislation and are often developed by

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