Page 5727 - Week 15 - Thursday, 10 December 2009
MS GALLAGHER (Molonglo—Deputy Chief Minister, Treasurer, Minister for Health and Minister for Industrial Relations) (4.25): The government will not be supporting this amendment. From the list of factors set out in section 149(4), employers can clearly identify the nature and type of information that they can rely upon when seeking to have the chief executive exercise discretion to impose a lesser penalty. The inclusion of the employer’s compliance history with this list allows the regulator to have regard to the employer’s previous commitment to compliance and to the intent of the workers compensation legislation. This also balances the financial considerations which comprise the first three factors relevant to the exercise of the chief executive’s consideration.
For example, an employer with 15 years of strong compliance performance who makes a poor decision to delay insurance renewal due to cash flow should be considered differently to an employer who has a pattern of non-insurance or underinsurance. As drafted, section 149 allows this flexibility and allows these considerations to be taken into account. The removal of this factor will jeopardise the integrity and balance of the chief executive’s consideration, and employers with a history of non-compliance may actually benefit from the exercise of the chief executive’s discretion to impose a reduced penalty simply on financial grounds.
MRS DUNNE (Ginninderra) (4.26): The Liberal opposition will not be supporting this amendment either. In considering the Greens’ amendments, I took briefings from both the Greens and the government. I thank them for their cooperation. I also want to take this opportunity to thank officials for the time that they have taken over this.
Amendment No 1 of the Greens removes the ability of the chief executive to consider an employer’s history of compliance when deciding to determine a lower recovery amount penalty for failure to maintain compulsory insurance. The record of compliance is frequently used in a range of circumstances. Which employer, for example, has not looked at past performance of their employee when establishing whether they should receive a promotion or a pay rise? Which court does not look at the past record of an offender before deciding on a penalty? It is perfectly reasonable and normal for past performance to be considered and it is perfectly reasonable for a chief executive to look at past compliance in deciding whether the recovery amount should be reduced. I concur with the comments made by the minister, and the Canberra Liberals will not be supporting this amendment.
MRS DUNNE (Ginninderra) (4.28): I move amendment No 2 circulated in my name [see schedule 1 at page 5769].
The scrutiny of bills committee, in reviewing the bill, commented that paragraph 149(4)(b)(viii) is a catch-all phrase that may engage the Human Rights Act 2004 in terms of what the committee described as “insufficiently defined administrative powers”. The committee recommended that consideration be given to rephrasing or deleting the paragraph. I note the minister has responded to the committee’s recommendations.