Simon Crean (Hotham, Australian Labor Party, Minister for Regional Australia, Regional Development and Local Government) Share this | Hansard source

The member for Farrer has moved 10 amendments together. Essentially, four of them relate to primary duty of care and the other six to self-incrimination. I will deal with them in those two groupings. The effect of the primary duty of care amendment in the bill is this: it amends clause 19 of the bill to limit the duty of care of 'a person conducting a business or undertaking', a PCBU, to matters of workplace premises under their control. The amendments would establish a threshold test based on whether or not the PCBU has control over a matter to determine whether or not the PCBU has a duty, rather than on what needs to be done to ensure the health and safety of the workers. That is the effect of what the member for Farrer is moving.

Let me just respond in this way: primary duty of care in the bill does require persons conducting a business or undertaking to ensure the health and safety of workers and other persons 'so far as is reasonably practical'. It is not an absolute requirement. The person conducting the business or undertaking need only do what can 'reasonably' be done in the circumstances to comply with that duty. The national review panel recommended—and workplace relations ministers agreed—that control should not be a separate element used to limit the extent of the primary duty of care. So they considered this matter. They also concluded that it should not be expressly included in the definition of what is reasonably practicable for two key reasons. First, the inclusion of control in the primary duty of care can result in the focus being on whether or not a duty applies, rather than on what needs to be done to ensure the health and safety of workers. In other words, a control test might encourage arrangements to avoid control in order to avoid the duty. Secondly, the case law provides that control is relevant in determining what is reasonably practicable in the circumstances. An inability to control relevant matters must necessarily imply that it either is not possible for duty holders to do anything or is not reasonable to expect them to do so. That is not to say that the concept of control is not contained in the bill, because the bill includes specific duties for persons with management or control of workplaces and persons with management or control of fittings, fixtures or plant at workplaces. Further, the duties in clause 19(4), which the opposition is seeking to amend to include reference to control, only apply where the person conducting the business or undertaking has 'management or control' of the accommodation. At best, the amendments in items (3) and (4) add nothing to the provision as drafted; at worst, they would simply confuse the provision. So the government opposes those amendments.

In relation to the self-incrimination grouping of amendments, the effect of the amendments would remove clause 172, which is the abrogation of the privilege against self-incrimination, to preserve the common law right to refuse to answer questions on the ground that it might incriminate the person being asked. And items (1) to (3) and (5) and (6) make consequential amendments to clauses 155, 171 and 173 to remove references to clause 172 in those clauses. The reason we oppose this grouping of amendments is this. The right to silence and the privilege against self-incrimination are important individual rights. However, they are individual rights that are not absolute; they must be balanced against the public interest. In the field of regulation—particularly in the regulation of workplace safety, which is a matter of major public importance—one crucial public interest is securing effective compliance or prosecutions. That is what is really important if we are to get on top of this problem in the workplace.

It is well established that the abrogation of individual rights may be justified if the information to be compelled concerns an issue of major public importance that has a significant impact on the community in general or a section of the community. We assert—and so did the ministers—that safety in the workplace is such an issue of major public importance. Abrogation of the right to silence and the privilege against self-incrimination may also be justified where there is an immediate need for information; where there is an immediate need to avoid risks such as danger to human life continuing; where there is serious personal injury or damage to human health; or where there is a compelling argument that the information is necessary to prevent further harm from occurring.

The Work Health and Safety Bill seeks to ensure that the strongest powers to compel the provision of information are available for securing ongoing work health and safety. This means abrogating the right to silence and the privilege against self-incrimination—and we acknowledge that point. However, the bill balances that loss of a person's right to silence by limiting both the direct and indirect use of forced disclosure against the person required to provide the information. This means that an individual will be compelled to provide information when asked, but that information, and any information that is obtained as a result of forced disclosure, cannot be used to prosecute the individual.

The advantage of section 172 is that all information is available to an inspector following a safety incident, thereby enabling an inspector to take timely safety and remedial action. I would just point out in conclusion that the review of the OHS laws did recommend that broad powers be given to inspectors. In their response they considered robust powers of inquiry and questioning, a consolidation of existing provision for inquiries and questions and a requirement for natural persons to answer an inspector's questions and provide information requested by an inspector. So we reject those amendments as well. We do understand the issue that has been raised by the member for Farrer, but in our view we have got the balance right, and it has been agreed by all of the states and the parties.

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