WORK HEALTH AND SAFETY (PROSECUTIONS UNDER REPEALED ACT) AMENDMENT BILL

Thursday 19 March, 2015

Mr TARZIA (Hartley) (16:58): I also have significant issues and concerns with this bill and, whilst I can count and know that the bill is likely to move past this chamber, I have no doubt whatsoever that the bill will be subject to intense scrutiny in the other place.

Mr TARZIA (Hartley) (16:58): I also have significant issues and concerns with this bill and, whilst I can count and know that the bill is likely to move past this chamber, I have no doubt whatsoever that the bill will be subject to intense scrutiny in the other place.

The Hon. S.C. Mullighan interjecting:

Mr TARZIA: I know that, but we need to give them more work. I agree, member for Lee; we need to give them more work because they have knocked off early today.

An honourable member: Have they finished already?

Mr TARZIA: Apparently so. It is interesting to note that Australia is party to seven core international human rights treaties and, Deputy Speaker, you know I have a fond interest in human rights treaties. The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant on Civil and Political Rights (ICCPR), and it is interesting to note that article 15 actually stipulates that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

I understand this is not potentially national or international law, but it is interesting to note that this is the case in that realm. It goes on:

Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

It is an interesting argument. Not only that, but we are also subject to Article 7 of the United Nations' declaration of human rights which states that:

All are equal before the law and are entitled without any discrimination to equal protection of the law.

This is a fundamental pillar of our legal system. These things are in place to protect defendants, as some of my other colleagues have alluded to. Obviously the bill will pass this house, but I really do ask members of the chamber to consider these arguments as I go through what arguments have been put forward by industry on this proposal.

We know that on 3 December the minister informed this place that he would introduce the bill which does insert a new transitional provision into the WHS Act to allow the minister to extend the time to start proceedings for an offence under the now replaced Occupational Health, Safety and Welfare Act 1986. I, too, empathise with the two families that have been involved in two prosecutions under the recent act. I do empathise with the families that have been affected by those prosecutions. I understand that one workplace incident resulted in a fatality and the other resulted in serious head injuries to the worker. I do empathise with the victims of those incidents wholeheartedly.

The minister then tells us that there has been a technical error in the filing of the complaints which signifies potentially that prosecutions will now be unable to proceed because the statutory time limit for the prosecution has expired. He goes on to say that SafeWork SA has advised that there are no other proceedings under the OHSW Act impacted by the technical error.

There are a number of views, quite a diverse range of views, about whether this legislation should be supported. It is important to note here that we do, with respect to the victims, have to put aside the emotional prospect of grieving families who are criticising the fact that alleged guilty companies or individuals may escape prosecution and focus on what we have been put here to do.

There is widespread criticism of the incompetence and potential negligence of the government and SafeWork SA. There is no doubt about that and I think there should be accountability for that. There is no doubt about that.

I would like to draw on some of the arguments of industry groups with regard to this bill—firstly, the MTA. The MTA note that they do obviously have many issues with this bill, and we understand that they suggest that:

…the main reason for the existence of time limits is to ensure fairness for the defendant at trial in terms of witness availability, recollection and the like. The greater the passage of time the more likely the defendant is to be disadvantaged.

That is certainly the case and something that we need to be very wary of. While they do 'not support or oppose the bill' they certainly seek that we should have 'regard to whether or not the defendant has suffered prejudice…'. This is the question: has the defendant suffered prejudice as a result of the passage of time…' that is 'not based on the likelihood of success of prosecution as is reflected in the present amendment'? It is a very valid concern that the MTA raise.

We move on to the Australian Meat Industry Council who have also raised a number of issues. They are concerned about the potential precedent that is created if you amend legislation to cover up what is an administrative error, as I have spoken about. That should not, they say, 'be a reason or an excuse for the need to change a law.' As they say, 'It is a dangerous move' and it does make a mockery of our system, and I would have to completely agree with the Australian Meat Industry Council on that.

They also draw on the principle of a statute of limitation concept and that that should be maintained without extremely exceptional circumstances. They also say, and I would agree with this, that there should be a thorough investigation of the department. We need to make these people accountable. We need to make them accountable for their error and, if they have been negligent, they need to be dealt with as per the law. It is not enough to simply try to amend the law every time one of these issues arises. It should be that the law is equal for all and there should not be some rules for certain people and other rules for others. It is just not good enough.

The Hon. T.R. Kenyon interjecting:

Mr TARZIA: Sorry? Where was your law degree from? The South Australian wine industry—

The Hon. T.R. Kenyon: Sorry, Mr QC.

Mr TARZIA: The South Australian wine industry—

The Hon. T.R. Kenyon: I wasn't even talking to you. If I'm going to interject on you, you'll know about it.

Mr TARZIA: I'm talking. Have some respect, I'm talking.

The Hon. T.R. Kenyon: I will keep going. Stop responding to interjections.

The DEPUTY SPEAKER: Order! The member for Newland was warned for the first time during question time, so I am going to warn him again. He is on two warnings now.

Mr TARZIA: The South Australian wine industry, as a general principle, does not support the introduction of legislation to address the shortcomings of the bureaucracy or to address administrative error. Whilst they may not oppose the bill, they would like to see some guarantees from the government. I will pass these thoughts on. They will be seeking guarantees from the government: first, that the minister agrees to a thorough investigation of the regulator to determine how this situation occurred and to ensure that it does not occur in the future. That is a very sensible statement by the South Australian wine industry. Secondly, should the bill pass, that there is an assurance from the minister that the amended legislation only apply to the two related matters. That is food for thought. I do not necessarily agree with the second part of the statement, but there you have it from the South Australian wine industry.

Business SA again talks about retrospectivity and how there are dangers when you try to make a law that only applies to certain individuals. They say it is rarely good policy and 'should only be considered in relation to criminal matters in the most extreme circumstances'. I would certainly agree with that. Business SA goes on to say:

…the only one that arguably has denied the family justice is the government because of what appears to be the inexplicable error of the Regulator and/or the Crown Solicitor. Accordingly, it is those agencies that should be held to be accountable.

What happened to accountability, Deputy Speaker? I would agree with Business SA. If someone has made a mistake—and mistakes do happen—they need to be accountable. It is extremely essential that we maintain this standard and this pillar of our legal system that a defendant's rights are protected until they are proven guilty. It is a fundamental pillar of our legal system, and that pillar needs to be maintained.

Business SA also raises a valid argument about an unacceptable precedent that would be created in the future if we go on making certain laws that only apply to certain people and not everybody as a whole. Then we have the Self Insurers of South Australia, who also raise many valid points in relation to this. They say:

The notion of amending any legislation to cover up an egregious and avoidable administrative error is in itself abhorrent. It smacks of a one-sided attitude to the principle that ignorance of the law is no excuse. They would readily apply it to a SISA member if its error had sabotaged its defence in a prosecution. But if the Regulator makes an error, we change the law to cover it up. It is grossly unfair and arguably a misuse of power. It is also a slippery slope—will the government feel empowered to do similar things in response to other bureaucratic errors under this or other acts?

That is from the Self Insurers of South Australia. That is quite a valid concern and they also talk about the statute of limitation and how that exists to protect defendants, as I have spoken about earlier, from the drawn-out threat of proceedings but also to ensure that proceedings are pursued with diligence. If you do not have these sorts of stops and measures in place you open yourself up to all kinds of things. You open yourself up to more vexatious claims, which have much more of a burden on the system. The system is crowded without all these other claims that we have, so that is very valid commentary from the SISA.

I understand we are waiting on certain groups to get back to us, and some submissions that we have asked for have not been received. I would assume since they have not responded that they must agree with us. It is my view that on balance the Liberal Party should oppose the bill in this chamber and at the very least support certain amendments that tighten the bill up. However, as I alluded to earlier on, I can count, and I accept that it is highly unlikely that the bill will be stopped here and that it will progress to the other place. I look forward to that day when it goes to the other place where it will be the subject of high accountability and rigid debate in that other place.

The Hon. T.R. Kenyon: I don't know why. Those hopes will be dashed one day.

Mr TARZIA: No, they won't be. I have hope.

The DEPUTY SPEAKER: Order! It is very late in the day.

Mr TARZIA: I have hope and I have faith.

The DEPUTY SPEAKER: I am looking at everybody and asking them to cooperate.

Mr TARZIA: I have hope and faith, member for Newland. There are two other minor things in relation to part 2, new clause 25A(1), which uses the phrase 'interests of justice to do so'. I think 'interests of justice to do so' is far too broad. I would have looked more favourably on it if it were more confined. I have also pointed out in subclause (2)(a) the phrase:

…an extension under that subclause may be authorised even though the time limit for commencing proceedings under the repealed Act has passed…

I have mentioned the fact that that extension needs to be more confined. It could be dangerous to give the minister of the day that discretion. We need to weigh up the interests of both parties in the proceedings—the prosecution and the defendant. I think this sort of thing is far too skewed against the defendant. I empathise with the victims of this case; however, I cannot emphasise it more. What we are trying to protect is a fundamental pillar of a legal system and it should only be in extremely rare circumstances and exceptions that we depart from that legal precedent.

If we are going to start doing it here, what other acts are we going to start doing it to, what other types of prosecutions are we going to open it to and what kind of accountability is there? Are we going to say to government departments, 'It's okay if you stuff things up'? That would be slack, it would not be in the best interest of representative government and it would not be in the interest of responsible government, because we are here to be just that and to provide that to the people who elect us. I personally will not support the bill. However, I say that it will be subject to rigid debate in the other place, and I will conclude my remarks there.