Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Hansard source

by leave—I move government amendments (1) to (10) together as circulated in my name:

(1) Clause 19, page 23 (line 3), after "undertaking insert "who has control over the matter".

(2) Clause 19, page 23 (line 9), after "undertaking", insert "who has control over the matter".

(3) Clause 19, page 24 (line 7), after s' insert "he or she has control over the premises and it".

(4) Clause 19, page 24 (line 8), after "practicable", insert "to do so".

(5) Clause 155, page 111 (line 28), omit "sections 172 and", substitute "section".

(6) Clause 155, page112 (lines 8 and 9). omit subclause (7). [self-incrimination]

(7) Clause 171, page 123 (line 26), omit "sections 172 and", substitute "section".

(8) Clause 172, page 123 (line 30) to page 124 (line 11), omit the clause

(9) Clause 173, page 124 (line 21), omit paragraph (I)(c).

(10) Clause 173, page 124 (lines 26 to 27), omit ", unless he or she was first given the warning in subsection (1)(c)".

I wish to make these amendments to the Work Health and Safety Bill 2011. Let me emphasise that we in the coalition do support the harmonisation of OH&S laws. In fact, it was a coalition government that initiated the process, in 2006, hence the Prime Minister is claiming credit for something that the Howard government commenced and that she had not completed. Many speakers on this side have reminded the House of her remarks at the time, that she had actually delivered new occupational health and safety laws. Her words were:

… I have delivered that.

Thirty years—on the day we delivered it there were some public servants that had tears in their eyes because they spent all their working life waiting for someone to deliver that reform. Wasn't easy, but I got it done.

Public servants had tears in their eyes? Really? I wonder if they had tears in their eyes when New South Wales Labor destroyed the harmonisation of OH&S laws in that state. Remember, Mr Deputy Speaker Adams, that Premier Keneally defied Julia Gillard in a desperate attempt to shore up support for the unions and her own leadership by saying that she would not pass harmonised laws in New South Wales, she would be retaining third-party safety provisions and she would be maintaining the reverse onus of proof.

Mr Crean interjecting—

The minister at the table, the member for Hotham, says that harmonisation is under threat, but the point is that the New South Wales Parliament has already changed the model laws in that state, so the amendments we move today would only apply to the Commonwealth jurisdiction. The horror that was New South Wales OH&S law has been explained many times, and I probably do not have time to repeat any of those stories, but thank goodness the O'Farrell government fixed up the mess to the extent that they could earlier this year and did legislate to implement the harmonised model. Changes were moved in the upper house. Changes should be moved here in this House today.

The development of OH&S laws by Australian governments has followed sound principles. The main one is that people are responsible for work safety according to what they 'reasonably' and 'practicably' can control. New South Wales and Queensland held employers automatically guilty under duty of care but enabled defences to be mounted according to 'reasonable and practicable control'. New South Wales, as we know, got out of control when it changed its OH&S laws in about 2000 so that guilt was applied to employers even if the employer had no control over the workplace or had acted reasonably. I am a rural member of parliament, and I remember one case where somebody got their leg, I think, caught in the augur of a grain chaser bin. The WorkCover authority sued the farmer, the employee and the manufacturer of the equipment, even though the equipment was brand new, the employee had gone through training and there was nothing the employer could have done. The employee admitted that it was his own silly fault. The cost to the New South Wales Farmers Federation, who undertook to fight this, was unbelievable and in the end I think they just gave up. That was the story of doing business in the state of New South Wales under their OH&S laws. Innocent people were convicted for incidents over which they had no control.

On the surface, it looks as though these new laws have embedded the principles of reasonable and practicable control, but the detail is quite different. The word 'control' has been removed. Instead, you will be responsible for workplace safety if you are 'a person conducting a business or undertaking'—a PCBU for short—and if you influence the activities of workers. To me, this does not make sense, because it is a new concept, it is not tested and it is confusing. As we know, any new legal concept takes years of testing before clarity is achieved. How is that going to help us get good workplace safety laws? In fact, there is a strong argument that these laws would put safety at risk. We are supposed to be legislating to improve safety in the work environment.

The other area of amendment concerns the right to remain silent and protection from self-incrimination. We are gravely concerned about the potential ramifications if the right to remain silent and protection from self-incrimination are denied to employers as a result of this legislation, given that prosecutions under current OH&S laws are criminal matters. OH&S law is criminal law, but the model harmonised law takes away basic rights of criminal justice. Under normal criminal law, everyone has the right to silence and protection from self-incrimination. It is a right we all hold and it is this protection that stops abuse of power. The passing of the bill in each jurisdiction will abrogate the privilege against self-incrimination in New South Wales, Western Australia, Tasmania, the ACT and the Northern Territory. The Commonwealth OH&S Act is silent on the issue and, therefore, it is considered that the privilege against self-incrimination remains. The model OH&S laws take away this right to silence. We therefore propose removing those clauses pertaining to self-incrimination.

This legislation will not result in a national, harmonised system for OH&S because WA has backed delays to the rollout—they have additional concerns—and the Victorian parliament has also echoed some of those concerns, calling for a year-long delay in the implementation of this bill. I acknowledge we have come some way, but we have not come far enough. There is a very strong argument that the amendments here for the Commonwealth jurisdiction will not upset the harmonisation of laws across the states. As each state deals with its own issues, it has the potential to change its own laws. That is what I am proposing here today. (Time expired)

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