Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I rise to speak in support of the Work Health and Safety Amendment Bill 2022. Work health and safety laws in Australia are a shared responsibility. Each jurisdiction is responsible for implementing, regulating and enforcing its own work health and safety laws. Australia has model work health and safety laws that have been adopted in all jurisdictions except Victoria, which has similar laws in place. These model work health and safety laws are developed and administered by an independent statutory body, Safe Work Australia, through a process involving all jurisdictions as well as employer and employee representatives.

In 2018 the five-yearly review of the model work health and safety laws was commissioned by Safe Work Australia. Safe Work Australia appointed independent reviewer Ms Marie Boland to conduct the review. The Boland review found the laws were largely operating as intended, and the 34 recommendations from the Boland review were mainly clarifying in nature. In May 2021 Senator Cash, as the then Commonwealth minister responsible for work health and safety, convened a work health and safety ministers meeting to consider the response to the Boland review. Ministers agreed on action for all 34 recommendations of the Boland review, reflecting the cooperative approach to the discussions. The key outcome of the meeting was ministers' unanimous agreement to introduce gross negligence or equivalent as a fault element for category 1 offences, which apply when a worker is killed or suffers a serious injury or illness, which this bill will introduce.

The bill before the House introduces the first tranche of policy decisions that were settled in that ministers meeting. These decisions were: amending the model work health and safety laws to provide that a work group is negotiated with workers who are proposed to form the work group, recommendation 7b; amending the obligation to train health and safety representatives to provide that health and safety representatives are entitled to choose a course of training, recommendation 10; to align the process for the issuing and service of notices under the model Work Health and Safety Act to provide clarity and consistency, recommendation 16; providing the ability for inspectors to require the production of documents and answers to questions for 30 days after the day they or another inspector enter a workplace, recommendation 17; enabling and clarifying that work health and safety regulators can participate in cross-border information sharing, recommendation 19; amending the Work Health and Safety Act to include gross negligence as a fault element in the category 1 offences under the Work Health and Safety Act, recommendation 23a; extending the 12-month deadline to 18 months for a person to make a request to the regulator to bring a prosecution for a category 1 or 2 offence, recommendation 24; and prohibiting the insurance for work health and safety fines and inclusion of offences for breaching this prohibition, recommendation 26. In this bill the government is also setting the fines for the newly created offence of providing insurance for work health and safety penalties.

One of the most important aspects of this bill is the introduction of gross negligence as a fault element for category 1 offences and extension of time. Any workplace death is a tragedy, and one death is one too many. Currently, category 1 offences have a standard of recklessness, which requires prosecutors to prove any intent to disregard a risk of death or serious injury. This can be difficult to prove at times.

The bill introduces recommendation 23a of the Boland review, which was the inclusion of gross negligence as a fault element in category 1 offences. This recommendation was universally supported by all jurisdictions. Grossly negligent conduct, as well as recklessness, should attract the most serious penalties under our work health and safety laws. This is why, when in government, the coalition supported the decision to introduce this change. By introducing the fault element of gross or criminal negligence the change will ensure that the appropriate threshold is set to capture culpable conduct but also preserve the current risk based approach adopted in the category 1 offence.

A category 1 offence is an offence by a person engaging in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury being reckless as to the risk. For example, an employer in the construction industry does not provide safety equipment such as harnesses, netting or railing in an open-air elevated workplace, and an employee severely injures himself or herself. The employer in this circumstance may be penalised under a category 1 offence, as the employer was grossly negligent, reckless or both in their work health and safety duty, which led to a serious injury.

This means businesses, as well as workers, with a work health and safety duty can be penalised if they are needlessly reckless or negligent in their duty. It also means, where accidents do occur, businesses or workers with work health and safety duties will not be unfairly penalised when they have taken the appropriate steps to minimise the risk of death or serious injury. Importantly, it continues the key principle of a risk based approach for the work health and safety laws, as opposed to focusing on the outcome that occurs. It is critical that prosecutions and higher penalties apply not only when a death or serious injury or illness occurs but when there is a near miss due to gross or criminal negligence. This is important if Australian workplaces are to become safer for all. The priority must be on strengthening the risk based approach of the work health and safety framework and to apply higher penalties equally to near misses and to serious injuries if they are due to the same underlying conduct, and these decisions in the bill do this.

This bill will also extend the deadline for requests of regulators to bring prosecution for category 1 and category 2 offences. This was another recommendation of the Boland review, which the former coalition government supported in the work health and safety ministers meeting. This extension means that another six months will be provided before a person loses the ability to request a regulator to bring a prosecution. This gives more time for the person, especially due to the likelihood in these incidences for significant recovery and/or grieving, to provide information as to why processes presently could result in the missing of the deadline.

This bill will also prevent a person being required to pay a penalty under law from being able to recover that penalty under a contract of insurance. The banning of the provision of insurance or indemnity products for criminal fines and penalties is not uncommon in Australia. For example, the Corporations Act 2001, the Financial Accountability Regime and the FAR's predecessor, the Banking Executive Accountability Regime, have similar provisions in place to prohibit the provision of insurance and indemnity for penalties.

Under the Fair Work Act 2009, federal courts have the ability to make personal payment orders for breaches of that act. This was an often used provision to require payment by members of the CFMMEU in matters brought to the court by the now abolished Australian Building and Construction Commission. The power to do this was reconfirmed by the High Court in the Australian Building and Construction Commission v CFMEU (2018). The rationale given in the review is that the provision of insurance and/or indemnification for work health and safety penalties undermines the deterrent effect of imposing such penalties. This rationale makes much sense and is accepted in similar scenarios to require personal payment for misconduct. This is the reason that the coalition supported this recommendation.

It is important to clarify, for the record, that this part of the bill will not criminalise access to insurance or indemnity arrangements for legal costs in defending the prosecution. The Boland review expressly stated that companies and officers should not be precluded from accessing insurance or indemnity arrangements for legal costs in defending a prosecution. The legislation before us does not do that. It only prevents the provision of insurance and indemnity products in circumstances where prosecution has been successful and a penalty has been imposed.

The bill would also amend the Safe Work Australia Act to clarify that information necessary to support Safe Work Australia's data and evidence functions may be provided to Safe Work Australia. Safe Work Australia is the national policy body for work health and safety and workers compensation. Its members represent the interests of Commonwealth, state and territory governments as well as employers and workers. As part of its role in developing these national policies and strategies, Safe Work Australia maintains and publishes national datasets to help inform policies which can improve Australia's workplace health and safety arrangements. Maintaining national datasets and developing evidence based research relies on input from a range of sources, including the authorities of Australia's various states and territories as well as the Commonwealth. The amendments in this bill will provide that persons with relevant information—including work health and safety regulators and workers compensation bodies—are able to provide that information to Safe Work Australia.

The work health and safety ministers meeting also recommended that the Work Health and Safety Regulations be amended to deal with psychological risks and injury. This was recommendation 2 of the Boland review. Amending the regulations in this way represented a strengthening of our commitment to addressing and preventing psychological injury in Australian workplaces. This recommendation responds to stakeholder concern at the absence of specific regulation on this issue, and should assist businesses—particularly small businesses—in meeting their obligations in relation to psychological health.

Many recommendations agreed at the May 2021 meeting respond to concerns raised by families who have been affected by workplace deaths, and they overlap with a number of recommendations contained in the Senate inquiry report into industrial deaths, They never came home. Ministers also agreed for Safe Work Australia to work with relevant experts to undertake a review into the feasibility of developing national work health and safety sentencing guidelines—recommendation 25. The ministers also endorsed the national principles to support families following an industrial death. These principles were developed by Safe Work Australia in response to the recommendations of the Senate inquiry report into industrial deaths, They never came home.

All ministers agreed to task Safe Work Australia to work with experts to determine whether it was possible or feasible for there to be national work health and safety sentencing guidelines which would help further harmonise regulatory responses to similar situations occurring in different jurisdictions. In the same meeting, all work health and safety ministers agreed that Safe Work Australia should produce and publish the model code of practice, 'Managing the risks of respirable crystalline silica from engineered stone in the workplace'. Other work that Safe Work Australia is undertaking as a result of the actions of the former coalition government include drafting amendments to the model Work Health and Safety Regulations to prohibit the uncontrolled processing of engineered stone, publishing revised national guidance on working with silica and silica-containing products and developing additional guidance materials on managing the risks of occupational lung diseases.

All Australians have a right to be safe in the workplace, and it is important to Australians, whether they be employers or employees, that there are consistent laws around workplace health and safety. This bill makes important changes that further strengthen that consistency and continue the principle of having risk based workplace health and safety laws while further clarifying and improving understanding of those laws. I commend the bill to the House.

Debate adjourned.