Clause 4.

Mr BELL: I propose an amendment and therefore I move:

Amendment No 1 [Bell–1]—

Page 3, lines 12 and 13 [clause 4, inserted section 30A(1)]—Delete '(being a person conducting a business or undertaking or an officer of a person conducting a business or undertaking)'

The reason for that is that a worker of a person conducting a business or undertaking needs to be included in this bill. Section 28(b) of the WHS Act requires workers to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of other persons.

Workers also currently have a duty to follow any reasonable instructions in the workplace: section 28(c) of the WHS Act and a duty to cooperate with any reasonable policy or procedure of the PCBU of section 28(d) of the WHS Act. Such a breach of duty could for example include a serious failure to follow directions from the PCBU as to safety procedures or processes. It is my position that this bill should therefore not only be confined to a PCBU or an officer of a PCBU but also a worker who performs a grossly negligent act in the workplace whose conduct subsequently results in the death of another employee in the workplace.

The ACTING CHAIR (Mr Brown): Member for Mount Gambier, you may wish to move all your amendments at the same time or you can do them individually. It is your choice.

Mr BELL: I am happy to move them all at the same time. Accordingly, I also move:

Amendment No 2 [Bell–1]—

Page 3, lines 19 to 22 [clause 4, inserted section 30A(1)(d)]—Delete paragraph (d) and substitute:

(d) the person is grossly negligent as to the risk to an individual of death or serious injury or illness.

Amendment No 3 [Bell–1]—

Page 3, lines 24 to 26 [clause 4, inserted section 30A(1), penalty provision, (a)]—Delete 'as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking'

The ACTING CHAIR (Mr Brown): You may speak to amendments Nos 2 and 3 if you like. No? Minister.

The Hon. S.E. CLOSE: I indicate the government will be opposing this amendment, and I am speaking initially to Amendment No. 1 [Bell-1]. That extends the offence of industrial manslaughter to a person, meaning that individual workers could be charged with the offence. The offence as proposed by the government is limited to persons conducting a business or an undertaking (PCBUs) and officers of a PCBU. That is consistent with every other industrial manslaughter offence in Australia, including the bill recently introduced to the commonwealth parliament.

This amendment would result in South Australia being inconsistent with every other jurisdiction in Australia. Workers can still be prosecuted for breaching their existing duties under the WHS Act. Given that the member has moved his second amendment also, being Amendment No. 2 [Bell-1], I will also indicate that the government opposes this amendment. The effect of this amendment is to remove the threshold of reckless conduct from the offence. This would be removing an already existing standard used to the highest category of offences—category 1 in the Work Health and Safety Act—along with the modelled WHS laws.

As advised during the second reading stage, the elements of gross negligence and recklessness in the bill are deliberately designed to mirror the elements of common law manslaughter. By removing recklessness as a standard, it effectively allows for a worker to be killed through an act where there is an awareness of a substantial risk that death or serious injury or illness will happen. When an employer's reckless actions result in the death of a worker that should be a crime. I gather, also, that there is a consequential amendment that has been moved at the same time, but I will not need to speak to that in addition.

The ACTING CHAIR (Mr Brown): Member for Mount Gambier, I am cognisant that you indicated that you wished to move all your amendments at the same time and then did not speak to amendments Nos 2 or 3. Did you wish to say anything about amendments Nos 2 and 3?

Mr BELL: I do. Thank you, Acting Chair, for that. The reason for 'recklessness' being combined with 'grossly negligent' is that recklessness is defined under a category 1 offence under section 31 paragraph (1) of the Work Health and Safety Act. Reckless conduct is a lower threshold than gross negligence, and therefore the current wording of section 30A(1)(d) of the amendment does create an inconsistency around this.

By combining the two paragraphs that the government has put forward in this bill, what it does is go to the higher threshold of grossly negligent. In a way, these are very serious charges and consequences for an employer and are just making sure that we have a high bar to achieve before employers subject to this again are fully aware and indicating that there is existing occupational health and safety legislation that is currently being used. We are talking about major indictable offences here, making sure that does marry up with common law standards and thresholds that also need to be met for a major indictable offence.

The ACTING CHAIR (Mr Brown): For the sake of clarity, I might ask if anyone wishes to make a contribution about the member for Mount Gambier's amendments first. Does anyone wish to speak about the amendments? Yes, member for Heysen.

Mr TEAGUE: Just on the point of principle, and I hear the Acting Premier in terms of an indication of opposition to Amendment No. 1 [Bell-1] to start with. I think we have addressed in some ways the effect of Amendment No. 2 [Bell-1], and we will come back to that. Just in terms of principle, the notion of including a worker for these purposes sort of highlights, I suppose, the change that is being made in terms of the workplace relationship in that if there is an intent here to mirror the criminal law in terms of common law manslaughter, and the test that is to be applied in terms of the conduct in breach is a person who has a health and safety duty and they engage in conduct that breaches that duty, then the question is then: why in principle should the provision not apply to any such person who has such a duty?

The Hon. S.E. CLOSE: Workers are in a different category. They can be held to account for their own actions but cannot be held responsible for the decisions made for a business.

Mr TEAGUE: Maybe I am a bit slow understanding it so I might be repeating. Is that in a way to say that the worker in such dire circumstances might find themselves capable of responding to a charge of common law manslaughter in a workplace if their conduct is capable of constituting the offence of common law manslaughter for involuntary manslaughter that happens to be in a workplace? And so we rely on the common law test of manslaughter for the purposes of a worker being charged with an offence, and yet there is considerably lower bar that there is to be then: this is a means by which a person, including a corporate person, can find themselves liable for this new offence.

It just begs the question: why, if the seriousness of the conduct is analogous we are left in circumstances where we have a considerably different test applying on the one hand to a worker who is capable of having a duty and a person conducting a business, including a corporate person, who is capable of having the same duty? One will be prosecuted via this process now. The worker will be capable of responding to a charge under the common law as they always have been. Is that a correct statement of the circumstances?

The Hon. S.E. CLOSE: A worker can still be prosecuted under the act—category 1 is the highest level—but they are not able under this proposed bill to be prosecuted for industrial manslaughter because they are not a decision maker in the business.

Mr COWDREY: I just wish to make comment on the amendments, and I wish to outline that the opposition will be supporting the amendments. As has probably been noted, they are similar in construction to those moved by the opposition in the other place, and I think that the minister just outlined one of the fundamental differences in interpretation between the opposition and the government in this regard.

This is a stepping away in a significant sense both by way of threshold penalty and general view of the workplace that has historically held, we believe, South Australia in good stead in terms of a broad structure of workplace relations here in South Australia, the very principles of mutual obligation within the workplace. These are the fundamental issues that perhaps we are going to disagree on for a period of time. I outline that we will be supporting the amendments standing in the member for Mount Gambier's name.

The committee divided on the amendments:

Ayes 13

Noes 22

Majority 9

AYES

NOES

PAIRS

Amendments thus negatived.