Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill

The Hon. T.A. FRANKS (17:24:02 ): I rise to speak on the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill 2015 and indicate to the chamber I will be the lead speaker and only speaker on behalf of the Greens. I also indicate will be supporting the bill.

The bill before us asks us to amend the Work Health and Safety Act 2012 to facilitate prosecutions occurring under the old Occupational Health, Safety and Welfare Act 1986. The bill inserts a new transitional provision into the Work Health and Safety Act which allows the Minister for Industrial Relations to extend the time to commence proceedings for an offence. The new transitional provisions will give the minister the capacity to do what currently cannot occur because the two-year time limit is up under the old Occupational Health, Safety and Welfare Act.

By way of background, there were two complaints laid by an officer who has an authority under the Work Health and Safety Act, but does not hold that authority under the Occupational Health, Safety and Welfare Act, to file a complaint. Therefore, these two complaints were ruled as invalid and have since been withdrawn. The statutory limit under the Occupational Health, Safety and Welfare Act has since expired, as I mentioned earlier, and the time restraint can only be relieved by statutory amendment, which is why the government has proposed the amendment bill.

My office has been lobbied by Business SA and other business and industry groups, who have expressed some sympathy for the two families concerned and, of course, the injured worker, however, they strongly oppose this bill. I would like to refer to Business SA’s letter to my office, which states:

Retrospective legislation is rarely good policy. It should only be considered in relation to criminal matters in the most extreme circumstance, as it is well recognised in jurisprudence to be a fundamental human right which should not be abrogated by retrospective legislation in order to achieve a criminal conviction.

The Law Society has also objected to the retrospective nature of this legislation. The Greens have seriously considered this issue, but in the interests of justice we believe that the bill deserves support. Retrospectivity can manifest itself in various ways. What is generally unacceptable is where legislation seeks to make some activity criminal that was previously legal. This bill does not do that. That is not the situation here, if it was then the Greens would probably vote it down. However, it is a very different situation we are presented with in this particular debate. In the present case, the retrospectivity merely involves extending the time limit within which a pre-existing criminal offence may be prosecuted. This is a very different situation to that other proposed.

In fact, it is not unusual for a parliament to retrospectively extend time limits for the commencement of proceedings. A good example here, of course, is in relation to sexual offences against children, where this very parliament has extended limitation periods for bringing both criminal and civil cases. The community does not find it acceptable for people to avoid responsibility for their actions due to a technicality, particularly in relation to arbitrary limitation periods, particularly where, as the Minister for Industrial Relations said in the other place, ‘One person was killed and one person was damn near killed.’

In the present case, the community expects these serious matters to be tested in the court and this legislation will allow the courts to test it. The Greens have given great consideration and weight to the circumstances in which this bill has been introduced and we will support the bill and we hope that it will not take 19 months to pass through this chamber, as the work health and safety legislation did, to our shame.

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