Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

by leave—On behalf of Senator Allman-Payne, I move amendments (1) to (10) on sheet 3110 together:

(1) Heading to subclause 179(3), page 186 (line 23), omit "Serious", substitute "Civil penalty provisionserious".

(2) Clause 179, page 187 (after line 4), after subclause 179(3), insert:

Strict liability offence serious failures

(3A) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—150 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—1,000 penalty units.

(3) Heading to subclause 179(5), page 187 (line 12), omit "Death", substitute "Civil penalty provisiondeath".

(4) Clause 179, page 187 (after line 25), at the end of clause 179, add:

Strict liability offence death or serious injury or illness

(6) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—500 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—4,800 penalty units.

Fault-based offence death or serious injury or illness

(7) A registered provider commits an offence if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—1,000 penalty units or 5 years imprisonment or both; or

(b) in the case of an offence committed by a registered provider other than an individual—9,500 penalty units.

General defence of reasonable excuse

(8) Subsection (3A), (6) or (7) does not apply if the registered provider has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

(5) Clause 180, page 188 (lines 19 to 22), omit subclause 180(3), substitute:

(3) A person may be found liable to pay a civil penalty under this Act, or be convicted or found guilty of an offence against a provision of this Act, relating to a duty under this section whether or not the registered provider has been found liable to pay a civil penalty under section 179, or been convicted or found guilty of an offence against section 179.

(6) Heading to subclause 180(4), page 188 (line 23), omit "Serious", substitute "Civil penalty provisionserious".

(7) Clause 180, page 188 (after line 30), after subclause 180(4), insert:

Strict liability offence serious failures

(4A) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty: 150 penalty units.

(8) Heading to subclause 189(6), page 189 (line 4), omit "Death", substitute "Civil penalty provisiondeath".

(9) Clause 180, page 189 (after line 15), at the end of clause 180, add:

Strict liability offence death or serious injury or illness

(7) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 500 penalty units.

Fault-based offence death or serious injury or illness

(8) A person commits an offence if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 1,000 penalty units or 5 years imprisonment or both.

General defence of reasonable excuse

(9) Subsection (4A), (7) or (8) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

(10) Clause 186, page 191 (line 7), after "subsection 179(3) or (5)", insert "or is found guilty of an offence against subsection 179(3A), (6) or (7)".

The Greens have long called for and supported a shift to a rights based framework. Advocates and older people have made clear that older people must have rights that are not only unequivocally clear but also enforceable. It is a key concern for the Greens and many others that the rights within this bill remain aspirational for providers. The removal of the criminal penalties has been a significant problem for many participants and advocates. This has been bitterly disappointing for participants and their loved ones seeking justice, and we strongly urge the government to support the inclusion of criminal penalties in the bill to signal to participants that their rights are enforceable and that they can seek justice.

It is a wonderful move that we are moving to a rights based framework but it makes a mockery of that move if those rights are not enforceable. We understand that the reason that part was taken out was to please the Liberals, and what an appalling outcome.

Question negatived.