Page 3941 - Week 09 - Thursday, 25 August 2011
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reduction of the maximum prison sentence from seven years to five years, which has been balanced by an overall increase in the maximum fines available.
I would like to respond briefly to the comments from the scrutiny of bills committee, who have made substantial comments on this bill. The committee has provided comprehensive comments. Many of the substantive issues raised by the committee are similar to previous comments made on the Dangerous Substances Bill in 2003, the OH&S amendment bill in 2004 and the Work Safety Bill in 2008. These issues have been repeatedly addressed and I would like to stress to members today that the government’s position remains unchanged.
By way of example, the committee is of the view that health and safety representatives and union permit holders have been provided with inappropriate powers. The government disagrees with this. The bill reflects the long-held and evidence-based view of the government that worker and union representation in the workplace play a fundamental and valuable role in improving safety outcomes and that certain powers are required to give effect to that role in practice. These powers are provided in a context of rigorous safeguards, such as the requirement for training, appeal rights, conditions on powers and revocation of rights where they are used inappropriately.
The committee has also raised a number of other concerns. I am satisfied that none of the comments raised warrants any amendment to the bill. I acknowledge that additional justification can be given to some aspects of the legislation and I am happy to have been able to clarify the operation of several provisions for the committee. I think the revised explanatory statement should provide that additional clarification.
The committee has commented on the supposed vague language used in the bill and in particular, the “reasonably practicable” qualifier that may result in uncertainty for duty holders. There has been a move away from prescriptive legislation and towards performance-based legislation following implementation of the report of Lord Roben’s inquiry to the UK parliament in 1972. Performance-based legislation has been implemented since that report in all Australian jurisdictions and a number of other countries, and it is reflected in the Work Safety Act and existing laws in all other jurisdictions as well as overseas.
The provisions of the bill have been drafted as clearly as possible and are not new obligations on duty holders. There is a national, long-term acceptance and use of the “reasonably practicable” qualifier. The qualifier is widely used and well understood in OH&S regulation. Importantly, it provides duty holders with the flexibility to ensure that they put in place the best possible safety measures for their particular workplace.
The bill also clearly sets out the test to be applied in determining what is reasonably practicable, which has a long history of interpretation. Regulations, codes of practice and interpretive guidelines will further assist duty holders in ascertaining what is required.
The committee also raised concerns with the inclusion of strict liability offences, particularly for the safety duty offences and the level of penalties proposed under the bill. I acknowledge that the bill does go significantly beyond the norm in the territory.
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