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Speech: Industrial Manslaughter Amendment Bill

The Hon. T.A. FRANKS (22:03): Thank you to all those who have made a contribution on this bill. In just over a week, we will be marking the October Labour Day public holiday in our state and commemorating the achievements of the Australian labour movement (that is labour with a 'u') and in particular the movement for eight hours work, eight hours rest and eight hours play. What happens when someone does not come home from those eight hours' work?

It is clear that our current laws are insufficient to address such a tragic consequence. I reflect on the fact that this is not the first time that such legislation has been brought before this parliament. It is not even the first time that I have brought this legislation before this parliament, but I want to reflect on some changes that we have seen around the nation since I first brought a similar bill forward.

We have been told many things over the years—and certainly tonight—when it comes to this parliament's opposition to the absolute bare minimum to protect workers in our state by introducing industrial manslaughter laws. The key one we have heard is that there is no need for this legislation, that the field is already covered and that, because other states did not have the legislation at the time, there was no need for South Australia to lead.

We have known for quite a long time that this is not actually the case. However, what is really new is that most of the country has now moved not only to recognise industrial manslaughter properly in legislation but to apply serious penalties to it. Industrial workplace manslaughter laws are now in place in New South Wales, in Victoria, in Queensland, in the ACT, in the Northern Territory and in Western Australia. South Australia and Tasmania are the last remaining jurisdictions without such laws.

We know these laws are needed and we know they work. The first industrial manslaughter convictions in Australia were handed down in Queensland on 11 June 2020, convicting Brisbane Auto Recycling Pty Ltd of industrial manslaughter and imposing a fine of $3 million. The two directors both also received a sentence of 10 months' imprisonment, suspended for 20 months. This conviction was the result of a worker being struck by a forklift being reversed by an unlicensed and inexperienced worker. The struck worker died in hospital eight days later.

As well, we have seen 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 agreed to harmonise our work health and safety laws across all states and territories. I remember the lengthy debate in this place—indeed, the delayed debate in this place—around that legislation. Critically, the report states:

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 the 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.

As I said, we have seen industrial manslaughter laws put in place in New South Wales, Victoria, the Northern Territory and recently in Western Australia.

I 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 stated:

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—

to answer the Hon. Connie Bonaros's question—

and the offence would provide a strong and appropriate deterrent across the entire WHS regime.

I also want to share one final quote from that report where 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 problematic overlap, with a jurisdiction's criminal law if an industrial manslaughter offence is introduced in the model [Work Health and Safety] Act. The 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 [Work Health and Safety] Act also increases the potential for inconsistency as jurisdictions successively introduce their own offence into their [Work Health and Safety] or other legislation.

Polling following the release of that report found that the majority of Australians want these new laws, which would see employers who are responsible for workplace deaths held accountable and ultimately be able to be sent to gaol. The bill is a long overdue measure. It seeks to capture the minority—and I do stress, the absolute minority—of employers who cruelly put workers at unnecessary risk.

South Australian workers have waited long enough for this protection. This is life-saving legislation. Every single workplace death is significant and an avoidable tragedy that will affect the lives of so many others. Everyone deserves to come home safe from work. We must ensure that employers have a genuine incentive to provide a safe workplace and to prevent them from taking shortcuts that endanger workers' lives.

This bill has sat on the Notice Paper for just over a year. This is not the first time I drew it to a vote. Indeed, I drew it to a vote and members said they were not ready to debate it, so I drew it to a vote again just over a month ago, and COVID provisions affected it coming to a vote. This is now the third time I have called on members to alert them that this bill will go to a vote. I commend the ALP for their support of this bill tonight and their commitment, should they take government next year, that they will seek to introduce industrial manslaughter legislation.

I am disappointed that concerns are raised at the final hours about wording and about interpretation that have not been raised with my office prior to tonight. I think if members have amendments that they wish to place to this bill then they should have circulated them, and they should circulate them. I will be taking this to a second reading, and I will stop at clause 1 to allow that conversation to happen. With those few words, I commend the bill to the council.

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