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

We oppose this amendment because it would undermine the very deliberate decision that was taken by the Workplace Relations Ministers Council only to allow public officials to bring prosecutions under harmonised work health and safety laws. The report made the point in summing up that the reason we are opposing generally all of the amendments is that we want to honour the agreement that we initiated, oversaw and facilitated, and which was a long time in the making.

This issue of who should be able to bring proceedings for offences under the model act was given careful consideration by the National Review into Model OHS Laws. The expert panel said that this issue warranted careful consideration because of the importance of enforcing the laws and the differences that currently exist across jurisdictions and the different stakeholder views about who should bring them. The review panel did note what the member for Melbourne has referred to—that unions were expressly allowed to prosecute in New South Wales. They have been able to do that for the past 60 years; the provisions in the ACT act were only introduced in 2008. The review report recommended that the right to initiate prosecutions for OH&S breaches should be limited to the Crown. It means that the resources, expertise and accountability of the Crown will always be applied to prosecution decisions and proceedings. This approach is taken in the context of legislation which provides regulators with a range of enforcement measures to allow them flexibility to decide which measures should apply for a particular case to achieve the best health and safety outcomes.

The review panel also cited academic research which indicated:

… in relation to corporate sanctions, a combination of measures will yield the best results in terms of achieving the overall goal of reducing the incidence of contraventions and hence the incidence of work-related injury and disease.

But the panel's recommendation was endorsed by all of the ministers of the council and accompanied by the following strong safeguards, and I think these are important to note: the process for deciding on prosecutions should be transparent and in line with clear, publicly available prosecution guidelines and, as a safeguard against regulator mistake or inactivity, regulators' decisions about not taking prosecution action should be reviewable by the Director of Public Prosecutions on request by any person.

The amendment proposed by the member for Melbourne would allow unions to bring prosecutions for category 3 offences in the bills. These are the least serious of three categories of offences against health and safety duties. Allowing unions to bring prosecutions in these cases will undermine the alternative enforcement measures available to the regulator under the bill. Enforceable undertakings, for example, could not be made where a third party could bring a prosecution at any time.

In any case, I make the point again: this amendment is inconsistent with harmonised laws and is consistent with neither amendments to the New South Wales Work Health and Safety Act nor any other jurisdiction which has introduced work health safety legislation based on the model laws to date—including the Queensland act, which has received assent and does not include a right of unions to prosecute.

Question negatived.

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