Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share 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 their 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 that the laws were largely operating as intended, and the 34 recommendations from the Boland review were mainly clarifying in nature. In May 2021, as the Commonwealth minister responsible for work health and safety, I convened a work health and safety ministers meeting to consider the response to the Boland review. Ministers agreed on action for all 34 items of the Boland review, reflecting the cooperative approach to the discussions that we all took. A 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 now introduce.

The bill before the Senate introduces the first tranche of policy decisions that were settled in the 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—that was 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—that was recommendation 10; to align the process for the issuing and service of notices under the model Work Health and Safety Act to provide for clarity and consistency—that was recommendation 16; providing the ability for inspectors to require the production of documents and answers to question for 30 days after the day they or another inspector enter a workplace—that was recommendation 17; enabling and clarifying that work health and safety regulators can participate in cross-border information sharing—that was recommendation 19; amending the Work Health and Safety Act to include, as I've stated, gross negligence as a fault element in category 1 offences under the Work Health and Safety Act—that was 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—that was recommendation 24; and prohibiting insurance for work health and safety fines, and the inclusion of offences for breaching this prohibition—that was recommendation 26. 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, as I've said—and I worked through this with the ministers at the time in a very cooperative fashion—is the introduction of gross negligence as a fault element for category 1 offences and the extension of time. Without a doubt, any workplace death is a tragedy, and one death is one too many. Category 1 offences, as they currently stand, have a standard of recklessness which requires prosecutors to prove any intent to disregard a risk of death or serious injury. This can be very difficult to prove at times. What this bill will do is introduce recommendation 23a of the Boland review, which was the inclusion of gross negligence as a fault element in category 1 offences. I just note, as the Commonwealth minister at the time who was negotiating and working with the state and territory jurisdictions, that this recommendation was universally supported by all jurisdictions. I am very proud that we were at the time able to achieve that result and that it is now being legislated.

Grossly negligent conduct, as well as recklessness, should attract the most serious penalties under our work health and safety laws, and that is why, when in government, I was pleased to lead the Commonwealth government charge to support 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 to the risk. So, for example, an employer in the construction industry does not provide safety equipment such as a harness, netting or railing in an open-aired elevated workplace and an employee severely injures themself. The employer may be penalised under a category 1 offence as they were grossly negligent and/or reckless 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 that where accidents do occur, businesses and workers with work health and safety duties are not going to be unfairly penalised when they take the appropriate steps and minimise the risk of death or injury. Importantly, it continues the key principle of a risk based approach for the work health and safety laws and does not focus on the outcome that occurs. In other words, we are seeking to prevent that outcome from occurring.

It is critical that we ensure prosecutions and higher penalties apply not only to when a death or serious injury or illness occurs but when there is a near-miss due to gross or criminal negligence. This will ensure that Australian workplaces 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 serious injuries, and these decisions in the bill do just this.

The 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, again, as the Commonwealth minister, I supported in the Work Health and Safety Ministers' Meeting. What the extension of time will actually do is ensure that another six months will be provided before a person loses the ability to request a regulator to actually bring a prosecution. What this in turn does is provide more time to them to provide the information as to why, especially due to the likelihood in these incidences for significant recovery, for the grieving process et cetera and processes that mean you could actually miss the deadline. That is why this additional six months was so important.

In terms of the banning of the insurance and the indemnity products for work health and safety fines and penalties, what the bill does—and, again, this was unanimously supported—is also prevent a person required to pay a penalty under the law from recovering 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 its predecessor the Banking Executive Accountability Regime already have, or had, similar provisions to prohibit insurance and indemnity for penalties. Under the Fair Work Act, federal courts have the ability to make personal payment orders for breaches of the Fair Work Act. This was an often used provision to ensure payment by individuals of, say, matters the CFMEU brought to the court by the now abolished ABCC. The power to do this was reconfirmed by the High Court in the Australian Building and Construction Commissioner v CFMEU. This was actually a High Court of Australia case. The rationale provided in the Boland review is the provision of insurance and/or indemnification for work health and safety penalties. What that actually does is undermine the deterrent effect of imposing such penalties. The rationale, as set out in the review and agreed to by the ministers, makes sense and is accepted in similar scenarios to ensure personal payment for misconduct. This is why the Commonwealth supported this recommendation. It is important for the record as well to clarify for businesses that this part of the bill will not criminalise access to insurance or indemnity arrangements for legal costs in defending a prosecution. The Boland review itself 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 either. It only stops insurance and indemnity from when prosecution has been successful and the penalty itself has been determined.

In terms of clarifying Safe Work Australia's access to data, the bill will also amend the Safe Work Australia Act to clarify, for the avoidance of doubt, 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 the Commonwealth, states and territories 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 data, and it helps to inform policies that improve Australia's work health and safety laws and policies by maintaining national datasets and developing evidence based research that relies on input from a range of sources, including jurisdictional authors. The amendments in the bill that we have before us will ensure that persons with relevant information, including work health and safety regulators and workers compensation bodies, are able to provide this 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. Again, this was in 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 responded to stakeholder concerns at the absence of specific regulation on this issue, and it now assists businesses—in particular, obviously, small businesses—to meet their obligations in relation to psychological health. Many recommendations agreed to at the meeting of ministers in May 2021 respond to concerns raised by families who have been affected by a workplace death, and they overlap with a number of the recommendations that were contained in the Senate inquiry into industrial deaths, They never came home.

Ministers at this time also agreed that Safe Work Australia work with relevant experts to undertake a review into the feasibility of developing national work health and safety sentencing guidelines, and that was recommendation 25. 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 into industrial deaths, They never came home. All ministers at the time, including me, agreed to task Safe Work Australia to work with experts to undertake research into whether it was possible or feasible for national work health and safety sentencing guidelines which would further help further harmonise regulators' responses in similar situations across jurisdictions. In the same meeting, work health and safety ministers agreed that Safe Work Australia produce and publish the model code of practice, managing the risks of respirable crystalline silica from engineered stone in the workplace. Other Safe Work Australia undertakings under the former coalition government included 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.

Without a doubt all Australians have the right to be safe in their workplaces, and it is important to Australians, whether they be employers or employees, that there are consistent laws around workplace health and safety. I am very pleased that the laws we are introducing today were agreed to when I was the minister, and I am very pleased to support the bill.