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

On this particular amendment we do insist that we re-introduce the issue of control into this bill. The minister talks about the national review, but there was an enormous amount of dissent in the submissions over the inclusion of the word 'control' in duties of care. Recommendation 8 called for the removal of the word 'control' from the definition of 'reasonable and practicable'. Unfortunately, that has been implemented in the national model OHS laws. The problem we have is that this is a new and untested legal concept of connecting duties of care to a person conducting a business or undertaking. If we take away the word 'control' it creates confusion over who is responsible for what in work safety. It is a major shift away from known OH&S principles in all Australian jurisdictions except New South Wales. I talked about that earlier. It also removes a key element of the ILO OH&S conventions, to which Australia is a signatory, and creates a legal vacuum due to unknown application and interpretation of duties of care under this new concept.

It is reasonable to expect that if we take away the word 'control'—the minister says the concept is there—legal uncertainty will occur and will require many years of judicial testing before clarity is achieved. For anyone who conducts a small business that ends up with an occupational health and safety matter in the courts—there are so many examples in New South Wales; as I said before, it is the worst state for this and businesses close down as a result of it—the last thing they want to hear is that this parliament is responsible for legislating a concept that has not been introduced into workplace health and safety laws anywhere.

We have created this concept of a 'person conducting a business or operation' and the concept of 'duties of care and control' is connected to that person. I really want to emphasise that point because people understand, in a practical sense, that if they control something or if they share control of something then they are responsible. If you take away the word 'control', clarity and focus on personal responsibility for safety is diminished and becomes confused.

Yes, we do want to get the balance right. We have moved away from the days of employers expecting unreasonable things from workers. We have an enormous amount of architecture in the workplace now. But the last thing we want is for employees to become confused and to believe that they do not have any personal responsibility. Ultimately, personal responsibility needs to be emphasised first and foremost, and that seems to be coming out of this legislation. And a new concept is to be introduced—a concept that is going to tie up the courts for years in working out what it really means. I thank the House.

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