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

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

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to 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.

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

Very briefly on that point, given that this has been responded to, I just make these three points. The concept of control is in the legislation. It will be relevant in determining what is reasonably practicable in the circumstances. We have not included 'control' in the primary duty of care as a result of the national review recommending against it. Whilst this was fought out, this was where the parties settled.

Our concern is that if you put it in it could lead to people or employers using arrangements to avoid control—to avoid meeting the test that the member wants to embody so categorically. They could be encouraged to avoid showing they had control in order to avoid the duty. Our focus is on ensuring that the duty is adhered to. It is for that reason that we oppose these amendments. Question put:

That the amendments (Ms Ley's) be agreed to.

The House divided. [12:15]

(The Speaker—Mr Jenkins.)

Question negatived.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I move amendment (1) circulated in my name:

(1) Clause 230, page 158 (line 8), at the end of subclause (1), add:

; or (c)   if the offence concerned is a Category 3 offence—the secretary of a union any member or members of which are concerned in the matter to which the proceedings relate.

I note with interest the opposition's new-found commitment to the sanctity of the principle against self-incrimination and the right to silence. I hope, then, that when we are dealing with the bill to deal with the abolition of the Australian Building and Construction Commission and when I move in this place for the abolition of those coercive powers that deny ordinary workers, and other participants, in that industry the privilege against self-incrimination and the right to silence that the opposition will vote with me on that amendment.

Amendment (1) is similar to what was adopted in New South Wales when they entered the scheme, and it was adopted in that large jurisdiction for a very sensible reason: history has shown that with regard to the lesser category of offences under OH&S legislation—not the more primary and more serious ones that should, of course, remain prosecutable by the state—there is a distinct advantage in improving health and safety in a workplace by allowing a union who represents members in that workplace to bring prosecutions. Indeed, the Finance Sector Union has used a provision similar to this to great advantage to improve the health and safety of bank employees who, for example, were often facing robberies and the like. This was the kind of provision that allowed perhaps something that might not be at the top of the agenda of a perhaps under-resourced state prosecutor or regulator to be brought before the appropriate tribunal and then proper changes to be made to work practices. It is a very useful amendment. It was one, as I say, that was adopted in New South Wales when they entered the scheme. I commend the amendment to the House.

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

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (2) to (7) circulated in my name together:

(2) Heading to clause 31, page 37 (line 5), after "Reckless", insert "or negligent".

(3) Clause 31, page 37 (line 11), after "reckless", insert "or negligent".

(4) Clause 245, page 173 (line 12), omit "or recklessness", substitute ", recklessness or negligence".

(5) Clause 245, page 173 (lines 14 and 15), omit "or recklessness", substitute ", recklessness or negligence".

(6) Clause 251, page 176 (line 17), omit "or recklessness", substitute ", recklessness or negligence".

(7) Clause 251, page 176 (lines 19 and 20), omit "or recklessness", substitute ", recklessness or negligence".

These amendments will give effect to what one of the participants in the harmonisation process, the ACTU, certainly understood as being an element of what was agreed—namely, that, as well as intentional and reckless acts of employers being able to be prosecuted, grossly negligent acts would also be able to be prosecuted. The ACTU made the point in their submission to the Senate inquiry that they understood that they had received a direct commitment that gross negligence would be something that was able to be prosecuted. Of course, in the context of health and safety, that makes perfect sense. Proving recklessness requires proving an element of intent, whereas negligence, and gross negligence in particular, is about the failure to comply with the required standard of care. In an area as important as health and safety, where steps are required to be taken and certain systems are required to be in place, it makes perfect sense to allow gross negligence to be the relevant test and not simply recklessness or intent. So on that basis I commend amendments (2) to (7) to the House.

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

The government opposes amendments (2) to (7) moved by the member for Melbourne. I do note that the Senate Standing Committee on Education, Employment and Workplace Relations has also recommended a similar amendment to the bill but, again, this is not what the committee determined.

The model Work Health and Safety Bill which was approved does not include gross negligence in the category 1 offence. I use the word 'gross' because that was the context in which it was considered. I note the change in the amendment that is being proposed. But in not including it, that is consistent with its earlier decision that gross negligence offences should be dealt with outside the model act by local criminal laws and manslaughter offences.

If clause 31 were amended to include gross negligence it would overlap with local general criminal laws where death or serious injury or illness results. Moreover—and this is an important point—such an amendment would go beyond local general criminal laws in that it would apply to conduct that exposed an individual to risk of death or serious injury or illness even where the conduct did not actually result in death or serious injury or illness.

It is appropriate that there be sanctions in relation to negligent conduct that exposes an individual to a risk of death or serious injury or illness. However, it is also equally appropriate that a serious offence, such as a category 1 offence that attracts a jail term, include an element of intention. Conduct that exposes an individual to whom a health and safety duty is owed to a risk of death or serious injury or illness because of the person's gross negligence would constitute a category 2 offence under clause 32 of the bill.

Amendments (4) through (7) are not necessary because they seek to amend the provisions in the bill that enable the relevant fault element for an offence to be attributed to the Commonwealth or to a Commonwealth public authority. It is not necessary in the context of proving criminal negligence, where only physical acts and omissions are relevant. And so we oppose this group of amendments.

Question negatived.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (8) to (15) as circulated in my name together:

(8)   Clause 104, page 81 (lines 11 to 13), omit subclause (2) (not including the note), substitute:

(2) Subsection (1) does not apply if the defendant proves that:

(a) the conduct was reasonable in the circumstances; and

(b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(9)    Clause 106, page 82 (line 15), before "Conduct", insert "(1)".

(10) Clause 106, page 83 (after line 25), at the end of the clause, add:

(2)   Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in for reasons that include a reason set out in paragraphs (1)(a) to (j).

(11)   Clause 110, page 86 (lines 3 to 17), omit the clause, substitute:

110 Reason for conduct to be presumed unless proved otherwise

(1) In proceedings for an offence of contravening section 104 or 107, if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be the reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not the reason for the conduct.

Note:   Conduct is engaged in for a prohibited reason if it is engaged in for reasons that include a prohibited reason—see subsection 106(2).

(2) To avoid doubt, the burden of proof on the accused under subsection (1) is a legal burden of proof.

(12) Clause 112, page 87 (after line 13), after subclause (2), insert:

Note:   Conduct is engaged in for a prohibited reason if it is engaged in for reasons that include a prohibited reason—see subsection 106(2).

(13) Clause 112, page 87 (lines 31 to 34), omit subclause (4).

(14) Clause 113, page 88 (line 14), omit "a substantial", substitute "the".

(15) Clause 113, page 88 (line 16), omit "a substantial", substitute "the".

These are important amendments from the perspective of harmonisation. These amendments will bring the protections that will apply in the amended Work and Health Safety Bill to people who might bring complaints or take steps that are available to them under OH&S laws into line with the protections that exist in the Fair Work Act. There are a number of reasons why that is important.

The general principle point of view from someone who has practised in this area for a number of years is that it is very rare, when it comes to questions of discrimination and victimisation for exercising workplace rights that are available to you, that an employer, a fellow worker or whoever it may be says: 'I am now taking this action against you for a discriminatory reason. I am doing this to you—demoting you, dismissing you—because you have put in a complaint.' For that reason the law has recognised for a number of years, under governments of both persuasions, federally, that when it comes to protecting workplace rights it makes sense for the onus to be reversed, but for that to be something that is of course rebuttable on the evidence. That allows someone who has an evidentiary basis for a claim to proceed, and then the onus is reversed.

In the Fair Work Act that we have at the moment that has continued. It also applies to complaints that are made under workplace laws, and those workplace laws can include health and safety laws. If these amendments are not passed, firstly, we will have a situation where someone under the Health and Safety Act will have a lower level of protection available to them than someone under the Fair Work Act and will find it more difficult to exercise their workplace rights. Given the importance we have heard about these provisions and the importance of the protections they provide, every protection should be made available to someone to exercise the rights that are available to them under law.

Secondly, because of the potential overlap between the Fair Work Act and the Work Health and Safety Bill we are going to have a situation where, unless they are harmonised, we are going to encourage forum shopping. We are not going to see complaints made under the Health and Safety Act and a separate system of resolution; we are going to see—and who could blame someone for doing this?—people exercising their rights under the Fair Work Act and potentially seeking to expand the definition of what counts as a workplace right under that act, knowing that there will be more favourable provisions available to them there—provisions that, as I have said, have been enacted under both coalition and Labor governments.

It is for that reason, if we are serious about harmonisation, that these amendments should be passed. I commend the amendments to the House.

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

he government opposes these amendments too. In moving these amendments, the member for Melbourne has suggested that their purpose is to align the discrimination provisions in the Work Health and Safety Bill with those in the Fair Work Act. I note that the passage of this bill was recommended by the Senate Education, Employment and Workplace Relations Legislation Committee.

Whilst it is true that there is overlap between the provisions of the Work Health and Safety Bill and those of the Fair Work Act, the provisions of each operate differently. Discriminatory conduct under clause 104 of the Work Health and Safety Bill is a criminal offence; the provisions of the Fair Work Act are subject to civil penalties only. The penalty in the Work Health and Safety Bill of $100,000 is substantially greater than the civil penalty under the Fair Work Act of 60 penalty units—that is, $6,600. In fact, the penalty to be paid to Fair Work Australia under the WHS Bill is 15 times greater.

In addition, a person found guilty of an offence under the Work Health and Safety Bill will have the stigma of a criminal offence conviction, which is not the case under the Fair Work Act's civil penalty provision. The provisions of the Work Health and Safety Bill do not replace or displace the Fair Work Act provisions. Discriminatory conduct for a prohibited reason under the Work Health and Safety Bill may also breach the adverse action provisions of the Fair Work Act. Proceedings may be brought under either act; however, a person cannot bring civil proceedings under both acts.

In relation to the amendments to the criminal offence aspect, in the context of imposing criminal liability it is appropriate that a prohibited reason be a dominant or sole reason for discriminatory conduct. Whilst the test is different to the standard required by the civil remedy provisions of the Fair Work Act, the dominant reason test is necessarily reserved for the more serious offences with significant penalties attached. The bill also recognises the right of a person to be presumed innocent of a criminal offence until proven guilty, but the amendments proposed today would in effect reverse that onus of proof.

The civil penalty provisions in the Fair Work Act and the civil proceedings provisions under the Work Health and Safety Bill operate differently. The Fair Work Act provisions are part of the compliance regime of that act. Under that act, a civil penalty is provided because a person has breached the law, but under the Work Health and Safety Bill breaches of the law are dealt with as criminal rather than civil matters.

The Work Health and Safety Bill civil proceedings provisions are not intended as punishment for breaching the law but rather to provide for additional mechanisms for the person who is the subject of the discrimination to remedy the breach. The Work Health and Safety Bill enables an eligible person—that is, the person affected by the contravention or their representative—to bring civil proceedings in relation to discriminatory conduct. The court can grant a range of civil remedies, including compensation and reinstatement, but unlike under the Fair Work Act it cannot order a civil penalty. The requirement in the model bill that the discriminatory reason must be the substantial reason for the civil cause of action was an explicit decision of the Workplace Relations Ministers' Council.

They are the reasons, but in effect this too would cut against what was recommended after exhaustive consultations. We oppose this group of amendments.

Question negatived.

Bill agreed to.