Page 1555 - Week 06 - Thursday, 2 July 2020
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Canberrans are out of work, why on earth would we be prioritising laws that disincentivise employers? Again, I am not surprised.
There are three acts being amended through today’s bill: the Workers Compensation Act, the Dangerous Goods (Road Transport) Act, and the Work Health and Safety Act. I understand that the proposed changes to the Public Sector Management Act as outlined in the original bill will not be proceeding today.
The changes in the bill are said to be in line with model legislation, which is the case to some extent. I see no real issue with some of the amendments to the Workers Compensation Act, which will streamline the current process and unify conditions in place for an injured employee regardless of whether their employer has a workers compensation policy or is self-insured. It also offers some streamlining in the application and renewal process for licensing for organisations who self-insure their workers compensation policies.
However, the opposition has some serious concerns about a number of aspects of the changes to both the Work Health and Safety Act and the Dangerous Goods (Road Transport) Act. I will start with the Dangerous Goods (Road Transport) Act. While the amendments here mirror model legislation applied across jurisdictions, there are a few clauses in this bill that raise very serious concerns and have been implemented in different ways by the various jurisdictions that have implemented the model legislation to date.
Clause 14, which requires the provision of recordings or other things that contain a record in relation to or indicate an offence, is one such example. There is no protection against self-incrimination, as exists in other states as they have implemented this legislation—for example, Victoria and South Australia. Failure to comply with this section of the ACT legislation already is deemed a strict liability offence. The addition of proposed clause 14 will give an individual little option or protection against self-incrimination or the prospect of facing a strict liability offence. The other jurisdictions that have implemented this aspect disregard any evidence that is handed over under such a clause from being used in a prosecution against the individual who hands it over.
Most of the concern that the opposition has relates to clause 32, which makes it an offence for an employer if an offence is committed by an employee, and creates a vicarious liability for employers. In other words, this clause reverses the onus of proof back onto the employer. This provision is part of the model legislation that all other jurisdictions have implemented in varying ways. However, the liability for offences committed by employers does not extend in our major neighbouring states, Victoria and New South Wales.
There are some clear differences. Unlike in clause 32 in this bill, other jurisdictions require that the offence is shown to have been committed by an employee within the scope of the employee’s authority or while acting in the course of their employment and that the employee had the relevant state of mind. The bill before us today has a higher threshold for defendants, namely employers, to disprove their liability. The defendant must show that they did not have knowledge of the actual offence and that
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