Ms BURNET (Clark) – Honourable Speaker, I thank the Leader of the Opposition for bringing this bill for discussion. I also thank Minister Ogilvie, as did the member for Franklin, for bringing various versions of this for discussion – the discussion paper and also the bill that the member for Franklin lodged.
This is the first time that I have spoken to a bill in my position as spokesperson for the Greens on workplace relations, so bear with me. We have seen various versions and the consultation draft, and there has been significant input. As Mr O’Byrne said, there has been significant interest over many years. I acknowledge the members of the public and families affected by workplace deaths and the work that the unions have done over many years.
On examination of the proposed bills, as well as the various models in different jurisdictions and the views of stakeholders, Labor’s bill is the model that the Greens prefer. We note that it is not a straightforward copy and paste from other jurisdictions. It is a matter of seeing what has worked elsewhere. Fortunately, since we are the last state to adopt such laws – although I acknowledge that New South Wales is discussing industrial manslaughter presently – it will be something that we learn from other jurisdictions. The model that the Labor Party has presented closely reflects the position the Greens have reached regarding an appropriate industrial manslaughter provision for Tasmania, and it also reflects the feedback we have heard from various stakeholders.
I start my substantive contribution by reflecting on the need for industrial manslaughter laws. The Australian Capital Territory was the first jurisdiction to introduce industrial manslaughter laws in Australia. These were introduced as criminal code provisions in 2004. The lack of prosecutions under these laws and similar laws introduced in New South Wales shortly thereafter was used as an argument against specific industrial manslaughter provisions.
Indeed, prosecutions of corporations for traditional manslaughter offences, though rare, were possible to find. However, since the introduction of industrial manslaughter offences as part of the National Model Legislation reforms, there have been four prosecutions under these provisions: one in Victoria in February this year, one in Western Australian in 2021, one in Queensland in 2020 and another in Queensland in 2022. While the provisions have certainly not been prolifically used, prosecution under them has been far more common than prosecution under traditional manslaughter laws.
The most recent prosecution we could find, for example, was in South Australia in 2016. Prior to this, there was a prosecution in 2008 in New South Wales and three prosecutions in 1994, which is the year noted for the first conviction in Australia against a company for manslaughter by criminal negligence. It would seem on face value that the new industrial manslaughter provisions have resulted in improved prosecution prospects and the justice that families require.
An important driver for this legislation in its relatively early form in other jurisdictions was the Boland Review, which reviewed the model Work Health and Safety laws and recommended industrial manslaughter laws, noting the limitations of criminal law when dealing with breaches of work health and safety duties. There are several benefits in including these provisions in the Work Health and Safety Act compared to a Criminal Code provision. The offence is constructed in similar terms to the existing category 1, 2 and 3 offences under the act, fitting in as a higher‑order offence above category 1.
Without being an expert on this matter, I would assume that being in the Work Health and Safety Act, which, unlike the Criminal Code, is administered by WorkSafe, would make it far easier to assess the appropriate offence to charge under and there would not be complicating matters of jurisdiction to consider, so it separates it out and this is a fundamental difference as to how industrial manslaughter should be captured as part of the Work Health and Safety Act.
Also of relevance are the provisions allowing for persons charged with industrial manslaughter to be convicted of a lesser category 1, 2 or 3 offence. Given that there have been so few prosecutions for Criminal Code manslaughter by corporations in Australia and none in Tasmania that we could find, it makes sense that people would be pursued for category 1 offences rather than seek a much riskier manslaughter conviction. These alternative conviction provisions mean that an industrial manslaughter conviction can be sought without taking a category 1, 2 or 3 conviction off the table, so it can be there if the need requires it.
The proposed model applies to any person to whom a workplace health and safety duty is owed. In our view, this is the appropriate model. For context, other jurisdiction provisions apply as follows: in Queensland it applies to a worker; in Western Australia it applies to an individual; in the ACT it applies to a worker or another person; and in the Commonwealth, South Australia, the Northern Territory and Victoria, it applies to the death of a person to whom a health and safety duty is owed.
The model proposed by Labor is the prevailing model. It should also be noted that Queensland, the only jurisdiction that only applies to a worker, has recently completed a review that has recommended that the act be amended to apply to ‘an individual to whom a health and safety duty is owed’. The Greens believe that this is the right approach for Tasmania.
Another relevant matter in the construction of these offences is the use of either ‘negligence’ or ‘gross negligence’ and whether this is defined. I note that the government’s draft bill used ‘gross negligence’ where the bill before the House today uses ‘negligence’, and there are varying approaches throughout the country. The Commonwealth and Victoria both use ‘negligence’ as defined by the Commonwealth Criminal Code. South Australia and the proposed New South Wales laws use ‘gross negligence’. However, this is defined in a very similar way as the Commonwealth definition of ‘negligence’. Both territories and Queensland use ‘negligence’ and do not provide a definition. Western Australia does not use ‘negligence’ or ‘gross negligence’, instead setting out that the person engages in the conduct knowing that the conduct is likely to cause the death of or serious harm to an individual, and acts in disregard of that likelihood.
There have been successful prosecutions under three of the four models in Victoria, Queensland and Western Australia. There has not currently been a prosecution under legislation that uses a ‘gross negligence’ threshold. However, the Queensland case of Crown v Jeffrey Owen, it was variously found that the conduct was so grossly negligent as to be deserving of punishment and involved ‘a very high degree of negligence’.
In researching this issue, we found that the common law ‘criminal negligence’ is often described interchangeably with ‘culpable negligence’, which is used in the Tasmanian Criminal Code in respect of culpable homicide and gross negligence. It is also somewhat confusing that although jurisdictions variously use ‘negligence’ or ‘gross negligence’. They are defined in very similar ways based on the Commonwealth Criminal Code definition of ‘negligence’.
One stakeholder we had conversations with outlined that the advice they received from people with legal expertise was that even if defined in the same way, ‘gross negligence’ was likely to be interpreted as a higher bar by the courts than ‘negligence’. All of this is to say that the precise distinction between ‘negligence’ and ‘gross negligence’, if indeed such a distinction exists, is unclear. The Greens, however, are of the view that we should err on the side of caution and adopt a threshold ‘negligence’. Being the prevailing approach in Australia, as well as being the recommended approach of stakeholders, and the lack of prosecutions thus far under legislation that has adopted a gross negligence threshold, this leads us to be of the view that ‘negligence’ is the appropriate threshold.
Now to recklessness. We also note that some jurisdictions include ‘recklessness’ whereas others do not. The Commonwealth, New South Wales, South Australia, the Northern Territory, and the Australian Capital Territory provisions apply to ‘reckless conduct’. Victoria and Queensland use ‘negligence’ only and Western Australia uses different language altogether. The feedback we have received is that while ‘recklessness’ is a higher bar than ‘negligence’, it cannot hurt to include ‘recklessness’ in the bill. I also note that as it currently stands, ‘recklessness’ is a test for category 1 offences in Tasmania, and as it would appear to be a test that is already used in the act, we are comfortable that its inclusion is merited.
The Greens are very pleased to support Labor’s bill. I do note the concerns Mr O’Byrne raised, but in principle, what Labor has put forward is sound. On behalf of the Greens, I extend my compliments to the Leader of the Opposition for his work on this bill. There is a range of different elements that comprise industrial manslaughter provisions through the country, and the Greens are of the view that this bill adopts best practice for each element of these.
I have watched with interest the New South Wales bill proceeding in their parliament. They had significant consultation. It was put forward by the government and they were angling for unanimous support of their bill and I hope that this receives unanimous support today.
We have in the Gallery advocates and families who have been affected by the deaths of loved ones. I want to step out of the Tasmanian jurisdiction and mention advocates such as Patrizia Cassaniti, a mother whose son died at the age of 18 on a work site in New South Wales and who has advocated for her son and justice so that it does not happen again.
Over 10 years, we have had 85 deaths at work, 60 of whom were workers and 25 who were bystanders. These fatalities have happened mostly because of vehicle accidents, and I want to point out that in agriculture, forestry and fishing, we often see that these are over‑represented, as I suspect males are over‑represented in these figures. One in five deaths are because of quad bike or motorbike accidents, and one in five deaths are related to tractor rollovers.
As the Leader of the Opposition has said, everyone deserves to return home at the end of their shift. The ramifications that ripple through our community are writ large in this House today. Any tragedy, whether it is from an accident in mining or any workplace, affecting a worker or a bystander, is one too many. I commend and support the bill of the Leader of the Opposition.
