Cutting Red Tape Submission to the Queensland Parliament Finance and Administration Committee Work Health and Safety and Other Legislation Amendment Bill 2017 14 September 2017
1. EXECUTIVE SUMMARY... 3 2. INDUSTRIAL MANSLAUGHTER LAWS... 4 3. THE INDUSTRIAL MANSLAUGHTER PROVISIONS OF THIS BILL... 8 4. OTHER COMMENTS ON THE BILL... 10 Housing Industry Association contact: Michael Roberts Acting Executive Director Queensland Housing Industry Association 14 Edmonstone Street SOUTH BRISBANE QLD 4101 Phone: 07 3021 8800 Email: m.roberts@hia.com.au - ii -
1. EXECUTIVE SUMMARY HIA welcomes the opportunity to provide submissions to the Finance and Administration Committee in response to the Work Health and Safety and Other Legislation Amendment Bill 2017 (Bill). In summary, HIA recommends to the Committee that: The Bill not be passed in its current form. In the event the Bill proceeds, the offence of industrial manslaughter be deleted. Other provisions in the Bill be subject to a regulatory impact process/ cost benefit analysis. Key issues: HIA s most significant issue, concerns the proposed new offence of industrial manslaughter. Work, health and safety legislation should be focused on the fundamental duty to provide a safe workplace. This is a duty shared by all people in the workplace- both employers and employees. Prosecutions for breaches should not be based merely on whether a death or injury has occurred. On the other hand, whether the death occurs in the workplace or in a non-industrial context, manslaughter is and should be a matter for criminal law. This is current the case under the Work Health and Safety Act 2011 with criminal penalties available against those guilty of recklessly exposing an individual to a risk of serious illness or injury or death. Tellingly, most previous inquiries (and the majority of other State Parliaments around the country) have concluded, industrial manslaughter provisions are unwarranted and unnecessarily duplicate protections found within the current work, health and safety legislative frameworks. Only recently, the South Australian government rejected a similar (flawed) industrial manslaughter Bill on this basis. Apart from the industrial manslaughter provisions, the Bill also abandons many of the key concepts which formed the basis of the harmonised 'model' safety laws agreed to by the previous Bligh Labor Government in 2011. HIA does not disagree that certain aspects of the model laws require review and some elements of the Bill have merit. Yet the Model Act provisions were subject to a vigorous review process and continue to be considered via the Safe Work Australia processes. HIA also notes that the Government in 2015, in part, justified the 2015 Amendment Bill on the basis it restored consistency with the nationally harmonised model of work health and safety laws Further changes are likely to confuse and cause uncertainty for many small businesses. As such, a regulatory impact assessment should be conducted before the Bill proceeds further. Page 3 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
2. INDUSTRIAL MANSLAUGHTER LAWS 2.1 CURRENT WORK, HEALTH AND SAFETY LAWS ARE ADQUATE HIA submits that Queensland s existing workplace health and safety legislation already appropriately addresses issues of death or injury in the workplace. Under the Work Health and Safety Act 2011 there is a positive and proactive duty on officers to exercise due diligence to ensure that the person conducting the business or undertaking complies with its duties and obligations under the Act. Where an officer is reckless and engages in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness, the officer can be imprisoned for up to five years. Importantly these laws enable the regulator. Work Health & Safety Queensland (WHSQ) to bring charges where risks to persons are evident but no incident or injury has occurred. There are significant penalties for breaches of WHS laws. These include: up to $3,000,000 for a body corporate; and up to $600,000 and 5 years imprisonment for an officer, or an individual who is a person conducting a business or undertaking up to $300,000 and 5 years imprisonment for an individual (worker or other person) The penalties outlined above apply to a category 1 offence, described as reckless conduct. Manslaughter is clearly a matter of criminal law and in HIA s submission it is inappropriate to conflate the two issues. It also remains the case that where a person is guilty of an offence under WHS laws the person may also be guilty of an offence under the general criminal law. 2.2 INDUSTRIAL MANSLAUGHTER IN OTHER JURISDICTIONS In considering the Bill before Parliament, HIA considers it appropriate to reflect on the experiences of other jurisdictions and not simply accede to the demands of the union movement. Only two jurisdictions have introduced specific offences for Industrial Manslaughter. All other states have rejected the proposals. THE COMMONWEALTH Part 2.5 of the Commonwealth Criminal Code specifically addresses corporate criminal liability, an offence automatically being attributed to the corporation if its employee or agent was acting within the scope of employment. For offences that require a fault element, the corporation must have expressly, tacitly or impliedly authorised or permitted commission of the offence, which can occur through the actions of the corporation s board of directors, high managerial agents, or through the corporation s culture. The Commonwealth Code adopts the so called aggregation approach which means that fault can be found by adding up the conduct of the body corporate as a whole. Page 4 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
AUSTRALIAN CAPITAL TERRITORY The Crimes (Industrial Manslaughter) Amendment Act 2003 was passed in November 2003 and commenced operation on 1 March 2004. Under provisions of this legislation, employers and senior officers can be guilty of Industrial Manslaughter where negligence or recklessness is proved. Similarly to the Commonwealth Criminal Code, fault may be attributed to a corporation if a corporate culture existed that directed, encouraged, tolerated or led to non-compliance. The explanatory memorandum to the Bill states that the purpose of the Bill was to: Provide improved protection of the health and safety of workers by establishing new offences of industrial manslaughter. The offences will apply where an employer or senior officer of an employer causes the death of a worker through recklessness or negligence. 1 Despite its lofty purposes, the ACT legislation was essentially tokenistic. Significantly, HIA understands that to date there have been no prosecutions under the ACT legislation. 2.3 ALL OTHER ATTEMPTS HAVE BEEN REJECTED HIA notes that there have been attempts across various jurisdictions to introduce some form of specific offence for Industrial Manslaughter either through criminal legislation or safety legislations. These have all been rejected. VICTORIA In 2001 the Bracks Labor Government introduced the Crimes (Workplace Deaths and Serious Injuries) Bill, the aim of which was to: create new criminal offences of corporate manslaughter and negligently causing serious injury by a body corporate in certain circumstances; impose criminal liability on senior officers of a body corporate in certain circumstances; and increase penalties in health and safety legislation. The Bill was rejected by the Victorian Legislative Council in 2002. Subsequent to this, in 2003, the Victorian Government commissioned a broad ranging inquiry to review and update the Occupational Health and Safety Act 1985. The inquiry resulted in the 2004 Maxwell Report which specifically rejected the concept of locating a workplace deaths offence within OHS legislation. In the author s view it was inconsistent with the nature of other OHS offences: 1 Explanatory Memorandum, Crimes (Industrial Manslaughter) Amendment Bill 2002 (ACT) Page 5 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
It also follows from the nature of OHS offences that no question of industrial manslaughter can arise under the OHS legislation. An employer may be in breach of its safety duties under the OHS legislation irrespective of whether death or injury results. It is the breach of duty, not the causing of a death, which gives rise to the offence. With manslaughter, on the other hand, it is the causing of a death which constitutes the offence, and that properly remains within the province of the general criminal law. 2 HIA submit that these observations could similarly be made with respect to the current Bill before the Committee. New South Wales In 2004, the Crimes Amendment (Industrial Manslaughter) Bill 2004 was introduced into the NSW Legislative Council by Greens MLC Ms Lee Rhiannon. In response, the Labor Government introduced amendments to the Occupational, Health and Safety Act which increased fines and jail sentences for negligent employers. In June 2005, the Occupational, Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW) inserted Part 2A into the NSW Occupational Health and Safety Act 2000 (OHS). Within Part 2A, s 32A created an offence of reckless conduct causing death at a workplace. The Criminal Appeal Act 1912 (NSW) was also amended to allow appeals from convictions under s 32A to the Court of Criminal Appeal. During the Second Reading Speech to the Bill, the Minister for Industrial Relations, the Hon John Della Bosca, stated: The revised bill is aimed at the very small minority of rogues whose indifference to health and safety in the workplace results in death. The bill represents the most effective means of targeting those who are most culpable and deserving of greater degrees of punishment. 3 In July 2009, the NSW Law Reform Commission (LRC) was asked to inquire into, and report on, the effectiveness of these provisions. 4 The LRC in its report noted the following: There have, of course, been a number of fatal workplace incidents since 15 June 2005 when the amendments came into force. For example, between that date and 31 March 2008, the number of such incidents notified to, and investigated by, WorkCover was 111. To date, only a few prosecutions arising out of these incidents have been reported. The prosecutions have not relied on s 32A but on contraventions of the more general duties of an employer relating to health, safety and welfare at work under the Occupational Health and Safety Act, the widest of which is the duty of an employer to ensure the health, safety and welfare at work of employees. The reported prosecutions all involved contraventions of 2 Occupational Health and Safety Act Review, Maxwell, C, March 2004 at pg. 14 3 New South Wales Legislative Council Hansard, 8 June 2005 4 NSW Law Reform Commission Report 122, Workplace deaths, July 2009 Page 6 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
the legislation that were in the mid to upper range in terms of their objective seriousness and that resulted in fines varying from $85,000 to $214,000. 5 Of further note, is that with the adoption of the Commonwealth Model WHS laws penalties for such offences have increased dramatically compared to that which was the case under s32a. South Australia In South Australia all attempts to introduce specific Industrial Manslaughter laws, including a Bill put before Parliament as recently as 2015, have been defeated. In 2004, legislation was introduced that provided for an offence of industrial manslaughter to be inserted into the Occupational Health, Safety and Welfare Act 1986 and in 2010 the Occupational Health, Safety and Welfare (Industrial Manslaughter) Amendment Bill 2010 was introduced. Both Bills lapsed in parliament. HIA notes that in 2002, the South Australian Government review of occupational, health and safety concluded that there was no need for an industrial manslaughter provision because it was already adequately covered by the criminal law. 6 Further the Attorney General s Department believed that creating another manslaughter offence in occupational health and safety legislation in addition to the Criminal Law Consolidation Act (SA) would result in inconsistency and duplication of the law.7 In 2015, the Greens introduced a private members Bill into parliament. The Bill was opposed by many groups not just employers. Opponents of the Bill included the Law Society, the Director of Public Prosecutions and the Flinders University Centre for Crime, Policy and Research. Importantly, the Bill was not supported by the South Australian Labor Government. As the parliamentary committee considering the Bill concluded: On the basis of all the evidence presented to the Committee, Members are of the view that adequate legal systems are in place to address work related fatalities arising from reckless disregard by a person who owes a duty of care to a worker.. 5 Ibid at pg. 4 6 SafeWork SA, Review of Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia (2002), 111-12.) 7 NSW Law Reform Commission Report 122, Workplace deaths, July 2009 at pg.48 Page 7 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
3. THE INDUSTRIAL MANSLAUGHTER PROVISIONS OF THIS BILL Whilst the Queensland Bill differs from the recent manslaughter Bill presented to South Australian Parliament, HIA sees a number of deficiencies in the drafting of the Bill. 3.1 CAUSATION? Issues of causation are not always clear-cut in criminal matters. The Bill states that a PCBU causes a worker s death where the PCBU s conduct substantially contributes to the fatality. The use of the word substantial will potentially mean that that the actions or omissions of the employer or its senior officers need not be the only cause. Given the discrete nature of the industrial manslaughter charge, HIA submits that there must be a clear and direct casual chain between the actions or omissions of the employer and the death of the worker. A PCBU or senior officer will also be liable when an "injury later results in death". It is not however clear what this practically means, particularly where an illness is acquired. 3.2 WHO ARE "SENIOR OFFICERS"? The offence applies to any senior officer of a PCBU. Under the Bill, a senior officer of a corporation includes any person who is concerned with, or takes part in, the corporation s management, whether or not the person is a director or the person s position is given the name of executive officer. In HIA s view, this inappropriately can capture any person within the PCBU s management team. 3.3 NO DEFINITION OF NEGLIGENCE It has been a longstanding principle of criminal law that an accused person will only be in breach of their duty of care where the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment. This is not clear in the Bill. 3.4 DEFENCE As the Bill provides that industrial manslaughter will be a criminal offence provision, the criminal onus and burden of proof will be required. However under the Bill there is no defence. Page 8 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
This can be contrasted to the now repealed section 32A of the NSW OHS Act which provided a defence to any proceedings against a person for that offence if the person proves that there was a reasonable excuse for the conduct. 3.5 ENFORCABLE UNDERTAKINGS The Bill proposes to prohibit the use of WHS undertakings (enforceable undertakings) as an alternative to prosecution where a fatality occurs. HIA does not consider that the prohibition is necessary. Firstly WHSQ is never compelled to accept any undertaking. Secondly, whilst enforceable undertakings may rarely be relied upon when the contravention is connected to the death of a person, each case or circumstance should be considered on its merits. Page 9 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
4. OTHER COMMENTS ON THE BILL 4.1 REINSTATEMENT OF STATUTORY WORKPLACE WORK HEALTH AND SAFETY OFFICERS (WHSO) The Bill reintroduces the non-mandatory option of appointing WHSO in the workplace with general functions such as identifying hazards and risks, undertaking annual assessments, investigating incidents and establishing appropriate training programs. In HIA s view, the amendment is not necessary. It is also unclear what effect it will have on PCBUs that appoint people to manage WHS, such as a WHS manager or WHS advisors. If these persons are incorrectly or otherwise perceived to be captured by the WHSO provisions, the provisions may have negative consequences and discourage some PCBUs from appointing WHS managers/advisors to the detriment of WHS. The appointment of a WHSO should remain part of the due diligence steps a reasonably sized business may wish to take. However it remains impractical and creates too much red tape for many smaller PCBUS in the residential construction industry, particularly given the regulated training requirements and obligations and the establishment of very clear and specific hazard and risk reporting and monitoring procedures. 4.2 WHS DISPUTES TO QUEENSLAND INDUSTRIAL RELATIONS COMMISSION (QIRC) HIA does not support this change. Firstly, HIA is unaware of any issue with the current Queensland Civil and Administrative Tribunal (QCAT) processes. Workplace health and safety should not be used to expand the size and functions of the QIRC. Workplace health and safety matters are not, and should not, be considered matters of industrial arbitration or conciliation which has been the traditional province of the industrial courts and commissions. The change also irrationally removes the internal review process that currently exists for WHS disputes where a party is not happy with an inspector s decision. 4.3 INDEPENDENT STATUTORY OFFICE FOR WORK HEALTH AND SAFETY PROSECUTIONS HIA notes that the Bill proposes to establish an independent statutory office with the power to conduct and defend court or tribunal proceedings currently given to WHSQ as regulator. In principle, HIA supports prosecution decisions being made independently of those who were responsible for workplace inspections and investigations and those within the regulator responsible for developing policy. Page 10 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
As the decision whether or not to prosecute is the most important step in the enforcement process, importantly not all offences should automatically result in prosecution. The proposed WHS prosecutor should take into account the available resources and only pursue those cases worthy of prosecution. HIA does not however agree that a separate statutory office is necessarily required. Arguably, it would quicker and more economic to simply establish a separate prosecution division within WHSQ. HIA otherwise supports the continued transfer of indictable offences to the Director of Public Prosecutions for decision and action. 4.4 HEALTH AND SAFETY REPRESENTATIVES (SECTION 72) HIA agrees that HSRs, where they are appointed, should have the necessary skills and knowledge to undertake their role. In this regard, the Bill more prescriptively sets the mandatory training to be provided for HSRs under section 72. As this training is provided at the cost of the PCBU, some detail on the costs of the mandated training should accompany the Bill. HIA also notes that the Bill will require PCBUs to provide a list of HSRs to the regulator. Again, as this represents a red tape impost on PCBUs, some detail on the regulatory impact should also accompany the Bill. 4.5 MANDATORY COMPLIANCE WITH CODES OF PRACTICE (NEW SECTION 26A) HIA notes that duty holders will be expressly required to comply with relevant Codes of Practice. Currently Codes of Practice are designed so that a PCBU may determine whether or not specific recommendations in a code are reasonably practicable to apply in their specific circumstances. In other words, their purpose is to provide practical guidance on how to achieve compliance with the laws and regulations. The proposed provision of the Bill is inconsistent with this purpose and it otherwise inconsistent with the reasonably practicable element of the WHS Act. It could potentially lead to more confusion than certainty. Mandating the provisions of a code regardless of whether or not the provisions are reasonably practicable to implement is patently unjust and unreasonable, even if subject to the only other alternative of meeting a higher or equivalent safety standard. This is because a specific prescriptive requirement of the code may not be possible to implement in some instances and the only reasonably practicable control measure that can be implemented by a PCBU could well be one that provides a lower, but adequate, standard of safety protection for their circumstances. Page 11 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017
This is why section 19 of the WHS Act contains a reasonably practicable allowance. The standard of reasonably practicable has been generally accepted for many decades as an appropriate qualifier of the duties of care in Australia. A Code of Practice that seeks to override this would not be consistent with the Act and may be invalid. In the event compliance with the Codes of Practice is mandatory, then if a person complies with a Code of Practice they should be deemed to comply with the relevant law or regulation to which it relates. Page 12 of 12 Work Health and Safety and Other Legislation Amendment Bill 2017 September 2017