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Speech: Work Health and Safety (Industrial Manslaughter) Amendment Bill

The Hon. T.A. FRANKS (16:45): I move:

That this bill be now read a second time.

I rise today to reintroduce a Greens bill in the wake of May Day over the weekend to make industrial manslaughter a crime. I think it is fair to say that making industrial manslaughter a crime is unfinished business in this parliament. I reflect on the fact that this is not the first time that I have brought this legislation before this place. Indeed, it is not even the first time that it has been brought before this place in terms of the Greens. There is a long history in this place of this issue being on our agenda. I note that my first bill was modelled on that of Nick Xenophon, when he served in the Legislative Council. In fact, it has been proposed at least five times over the years that I have been here and it has been proposed both as a private member's bill and also amendments to other legislation.

I do note, however, that while my most recent attempt to pass industrial manslaughter laws in this state was adjourned at the end of the last parliamentary session, the Labor Party, which is now in government, committed to introducing and passing industrial manslaughter laws in our state. Since announcing over the weekend that the Greens would be reintroducing this legislation this week, the Labor Party have also announced that they will be putting forward legislation to make industrial manslaughter a crime. The Greens welcome this move and we look forward to seeing that legislation. I hope we can all work together to pass industrial manslaughter legislation in this council and in this parliament as soon as possible. I hope that this is the year that we finally catch up with much of the rest of the country and put this matter to rest.

The legislation that I introduce today has a maximum penalty of imprisonment of up to 20 years and up to a $13 million fine. Under this bill, a person conducting an undertaking or business, a PCBU, would be found guilty of an offence if the employer breaches their duty of care, the employer knew or was recklessly indifferent that the act or omission constituting the breach would create substantial risk of serious harm to a person and that the breach would cause the death of a person. I note that this is the only slight change since the last time I reintroduced this bill. Indeed, we have updated the language to PCBU instead of employer in this bill before us.

While we have been told many things over the years when it comes to this parliament's opposition to doing what I believe is the absolute bare minimum to protect workers in our state by introducing industrial manslaughter laws, the key one that we have heard offered is that there is no need for this legislation, especially because the other states did not have that legislation at the time in the early days of this debate. I think we all recognise now that things have changed. I want to be clear in restating the case for updating our laws in South Australia now that, in fact, most of the country has moved to not only recognise industrial manslaughter properly in legislation but to apply serious penalties to it.

Industrial or workplace manslaughter laws are in place in New South Wales, Victoria, Queensland, ACT, Northern Territory and Western Australia. South Australia and Tasmania are the last remaining jurisdictions without such laws. We have seen as well the final report of the Review of the Model Work Health and Safety Laws released in December 2018, following on from the agreement in 2008 where we all agreed to harmonise our work health and safety laws across this country across all states and territories. Critically, that report states, and I quote:

I am recommending a new offence of industrial manslaughter be included in the model WHS laws. The growing public debate about including an offence of industrial manslaughter in the model WHS laws was reflected in consultations for this Review. I consider that this new offence is required to address increasing community concerns that there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care that leads to a workplace death. It is also required to address the limitations of the criminal law when dealing with breaches of WHS duties. More broadly, the ACT and Queensland have already introduced industrial manslaughter provisions, with other jurisdictions considering it, and so this new offence also aims to enhance and maintain harmonisation of the WHS laws.

That was a quote from 2018, some years back now. Of course, since then, we have seen industrial manslaughter laws put in place nationwide, most recently in Western Australia. I would remind members as well that South Australia is a signatory to the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, which is the agreement under which we agreed to harmonise our work health and safety laws with other states. The report also states:

Advocates for the inclusion of an industrial manslaughter offence believe such change is long overdue and reflects strong public sentiment. The ACTU supports this view and submits that 'the introduction of a new offence of industrial manslaughter will provide a strong incentive to businesses with poor practices to improve'. The Senate inquiry into industrial deaths recommended that the model WHS laws be amended to provide for an industrial manslaughter offence. It considered serious consequences were warranted for organisations whose negligent actions result in the death of a worker or bystander and the offence would provide a strong and appropriate deterrent across the entire WHS regime.

I would like to pull one final quote from this report for the information of not just the members of this council but, indeed, for the community, where it discusses the case for change:

Consultations for this Review (mirrored in submissions to the Senate inquiry into industrial deaths) revealed a clear and increasing view amongst a great many in the community that there should be an outcome-based offence in the model WHS laws where the death of another person occurs as a result of the gross negligence of either an individual or an organisation. The strong community expectation is that it should be possible to prosecute for the death of a person under a statutory offence of industrial manslaughter in the model WHS laws.

As discussed, the most commonly cited reason for rejecting an industrial manslaughter offence during consultations was that the current criminal law offences in each jurisdiction are sufficient for dealing with workplace fatalities. Opponents of change pointed to the potential for a problematic overlap with a jurisdiction's criminal laws if an industrial manslaughter offence is introduced in the model WHS Act. This argument is less convincing given some states and territories either have or are exploring the introduction of an industrial manslaughter offence to reflect what they perceive as the community will and to deal with the limitations of the criminal law in prosecuting breaches resulting in workplace death. At a practical level, the absence of an industrial manslaughter offence in the model WHS Act also increases the potential for inconsistency as jurisdictions successfully introduce their own offence into their WHS or other legislation.

To sum up, this bill is a long overdue measure. We could have led, we will lag, but this bill seeks to capture the minority—and I do say very much the minority—of employers who cruelly put workers through unnecessary risk. South Australian workers have waited long enough for this protection. This is life-saving legislation and every single workplace death is significant. It is an avoidable tragedy that will affect the lives of many others, should it be the type of death caused that will need this particular legislation to be implemented.

Everyone deserves to come home safely from work, and we must ensure that employers have a genuine incentive to provide a safe workplace and to prevent them from taking shortcuts that endanger lives. As legislators, I think it is our responsibility to ensure that employers have a genuine incentive to provide that safe workplace.

We do have many carrots in our system, but we also need a few sticks, and the message needs to be clear: deliberately or recklessly kill a worker, go to jail. That is what the penalty should be in our state, as it is in almost every other jurisdiction of this country now. I note, unfortunately, that workplace deaths are going up, not down. We need to do more, and we need to do more now. With that, I commend this bill to the council.

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