Ms PATTEN (Northern Metropolitan) (15:59:34): I too rise to speak to the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. As many other speakers before me have noted and outlined, it amends the Occupational Health and Safety Act 2004 to introduce a new criminal offence of workplace manslaughter.
The bill aims to hold organisations and individual officers to account where they engage in negligent conduct causing the death of a worker or a member of the public. In doing so these laws are designed to pierce that corporate veil. I have considered these reforms closely.
I have consulted with the Australian Industry Group, the Victorian Chamber of Commerce and Industry, the Victorian Farmers Federation, the Urban Development Group, Master Builders Victoria, the Housing Industry Association and others. I have also met with Trades Hall, the Australian Workers Union and Dr Lana Cormie, who tragically lost her husband, Charlie, in that preventable trench collapse.
Tragically, as Ms Shing eloquently put it, too many Victorians do not come home from work safe. My starting point has always been that the current legal framework is inadequate to deal with the type of corporate negligence that left Sophie and George without their father. But I am very mindful that these laws must be just and they must be fair—that an employer must have contributed significantly to or have been a substantial and operating cause of death to invoke workplace manslaughter charges, that these laws do not unfairly impute criminal negligence where a body corporate has acted responsibly and that these laws do not undermine investment and jobs.
When considering this and in speaking to the various organisations, it seemed that the principal concerns about this bill came to, one, employees should be included in the offence; protection should be maintained against self-incrimination; where the conduct of the employee can be imputed to a body corporate, it should be qualified; and family businesses, in particular family farms, should be excluded in relation to the death of a family member.
Looking at these in turn, these laws are designed to make businesses more accountable for the death of their employees on their watch. They are designed to send a strong message to employers to be mindful of placing lives at risk in the workplace; to act as a deterrent; to save lives. So to include employees cuts across the purpose of these laws.
These laws were designed to address a specific gap in our current legislative framework and, as I said, to pierce that corporate veil. In relation to self-incrimination, I note that individual employers or officers do have the right to silence in relation to being recorded for an interview under the act. There is no significant departure from criminal law in this regard. Under existing laws you can be compelled to provide documents, but you do not require a person to give an account of them. This law does not change that.
The Evidence Act 2008 and the Criminal Procedure Act 2009 will apply to a prosecution under these laws, just as they would under any criminal matter. Industrial manslaughter will be prosecuted by the Office of Public Prosecutions, just like any other serious offence.
I feel that the case for self-incrimination that has been put to me by various organisations seems to be conflating confessional evidence or admissions with documentary evidence that is already in existence. Accused under this act do have a right to silence with respect to questioning.
Equally, any investigative agency should be able to seize documentary evidence. Where appropriate authorisations are obtained, a criminal accused cannot refuse to hand over the phone full of stalking messages, for example, or their ‘tick book’ recording illicit drug sales or their hard drive which contains child sexual abuse material.
It would be inconsistent if a body corporate in this instance could just decline to provide documentary evidence that would give rise to a charge of criminal negligence. My assessment is that these reforms do not interfere with that fundamental right of an accused to silence. In relation to circumstances where the liability may be imputed to a body corporate, I think we should all take comfort from this passage in the explanatory memorandum, which says: In line with current section 143 of the OHS Act, conduct is only to be imputed to a body corporate if the employee (etc.) is acting within the actual or apparent scope of their employment or authority.
Accordingly, a body corporate is not intended to be guilty of workplace manslaughter solely because a “rogue” employee, agent or officer acted contrary to steps taken or things provided or directed by the body corporate. That said, I am not opposed to the concept that the legislation could be strengthened in this regard if that statement was in the legislation itself. It would not change the effect of the legislation, which I think does set a sufficiently high bar, but it would provide some clarity.
With respect to the exclusions for family businesses, my first thought was: ‘Why shouldn’t a family member be afforded the same protections as any other employee?’. I did have some very robust conversations with the farmers federation, and I appreciate the notion of those family businesses and that sometimes it is a unique area. I really had some thoughts about this. The government has communicated to me that it would not be in the public interest to pursue a prosecution—and Ms Shing gave some tragic examples of that—and that prosecutorial discretion will act as an appropriate safeguard in the instance of the tragic loss of a loved one.
The counterargument of course is that this same end could be achieved by legislative means rather than relying on the exercise of discretion—and with more certainty. So I particularly acknowledge Emma Germano’s advocacy on this issue, and I will continue to listen closely to the debate.
I will just make a few other observations on this bill. The standard of criminal negligence is quite rightly a high standard. An organisation with robust OH&S practices and policy will not fall short of this bar. An organisation will not be liable for the conduct of an employee who fails to act in accordance with their training or policy. It is a sound framework.
I am satisfied on this basis that the bill strikes an appropriate balance and is worthy of support. I offer my sincere condolences to the families so deeply affected by the tragedy of workplace deaths. Some say 20; some say there are 30 fatalities each year in Victoria. It is just far too many, and I truly hope that with the passage of this bill today we will see meaningful change.
