Wednesday, 30 October 2019

Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019

Statement of compatibility

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:38): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Occupational Health and Safety Act 2004 (Act) to introduce new criminal offences 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 member of the public.

The Bill implements the government’s election commitment to introduce workplace manslaughter as an offence, and sends a clear message that putting lives at risk in the workplace will not be tolerated.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill are:

• The right to liberty and security (section 21)

• The right to be presumed innocent (section 25(1)); and

• The right to protection against self-incrimination (section 25(2)(k)).

Right to liberty and security

Section 21 of the Charter provides that every person has the right to liberty, and that a person must not be deprived of his or her liberty arbitrarily and except on grounds, and in accordance with procedures, established by law. Section 21 also provides that every person has the right to security, which includes safety of the person.

The purpose of this provision is to ensure that a person is not arbitrarily arrested or detained and that the circumstances of any such detention are sufficiently circumscribed and subject to the independent scrutiny of the courts. Clause 4 will insert new section 39G(2) into the Act, which creates an indictable offence where an officer of an applicable entity engages in conduct that is criminally negligent, constitutes a breach of an existing duty under Part 3 of the OHS Act, and causes the death of a worker or a member of the public to whom the duty is owed. This offence carries a maximum penalty of 20 years’ imprisonment for individual officers or self-employed persons.

Although conviction for the new offence may result in the deprivation of liberty, it will only arise as a result of a sentence imposed after conviction by an independent court after a fair hearing. Further, the requirement for conduct to amount to criminal negligence ensures that the right to liberty is only limited where a sufficiently high threshold is met. In my opinion, interferences with the right to liberty under this Bill are neither arbitrary nor unlawful and are compatible with section 21 of the Charter.

This Bill promotes the right to security and right to life of workers and members of the public by providing a deterrent to poor safety practices, and encouraging organisations and their officers to dedicate sufficient resources and training to workplace safety.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. Section 25(1) is relevant in relation to the workplace manslaughter offence for an individual officer.

The Bill applies to officers, which is consistent with the Act’s obligations and definitions. The Act adopts the definition of an officer in the Corporations Act 2001 (Cth). Officers include people at the highest level of the organisation (for example, directors). It also includes people who participate in making decisions that affect a substantial part of the organisation’s business, or who have the capacity to affect significantly the organisation’s financial standing, regardless of their position title within the organisation.

Officers currently owe duties to their employees and members of the public under Part 3 of the Act. The Bill is not amending these duties, but is introducing a substantial consequence where an officer engages in negligent conduct causing the death of an employee or member of the public. An officer cannot be convicted for the offence of workplace manslaughter unless they have been personally criminally negligent in the discharge of their duties, and this causes the workplace fatality, or negligent conduct is attributed to them under the OHS Act for failing to take reasonable care.

The prosecution bears the legal and evidential burdens of proof for each element of the offence, including that the officer’s conduct amounted to criminal negligence and caused the death. These elements require a high threshold to be met before an officer is found individually liable. As a further safeguard, no limits are placed on the defences that would apply in relation to manslaughter offences under the common law or legislation, and these would be available to officers accused of committing workplace manslaughter. If the defendant raises a defence, they would bear an evidential burden in relation to the matter but the legal burden would ultimately remain with the prosecution. This would not limit the right to be presumed innocent.

While the penalty for this offence is substantial, it is justified where an officer’s negligent conduct causes a workplace fatality, consistent with other manslaughter offences.

In my opinion, this Bill does not limit the right to be presumed innocent.

Right against self-incrimination (section 25(2)(k))

Section 25(2)(k) of the Charter provides that a person who has been charged with a criminal offence has the right not to be compelled to testify against himself or herself or to confess guilt. It is also an aspect of the right to a fair trial protected by section 24 of the Charter. This right under the Charter is at least as broad as the privilege against self-incrimination protected by the common law. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion.

The right in section 25(2)(k) of the Charter is relevant to clause 4, which introduces an indictable offence into the Act with a maximum penalty of 20 years’ imprisonment for officers or self-employed persons. The Bill does not introduce new investigation powers into the Act, and therefore the existing regime applies to the offence.

Section 100 of the Act provides inspectors with the power to require a person to produce a document or answer a question, and allows inspectors to examine a document. In the event that a person raises the existing defence of reasonable excuse under section 100(2) of the Act, they bear the evidential burden. This does not limit the right to be presumed innocent.

Section 154 of the Act preserves the privilege against self-incrimination in relation to questions, but abrogates the privilege in relation to the production of documents. The Act does not contain a use immunity provision. Therefore, a limited abrogation of the privilege against self-incrimination exists because a document required to be produced may contain evidence that would tend to incriminate the person with respect of the offences in the Act. The Bill does not amend the current limited abrogation in the Act for the purposes of the new offence.

The right to protection against self-incrimination generally covers the compulsion of documents or things which might incriminate a person. However, at common law the protection accorded to the compelled production of pre-existing documents is considerably weaker than the protection accorded to oral testimony or to documents that are brought into existence to comply with a request for information. I note that some jurisdictions have regarded an order to hand over existing documents as not engaging the privilege against self-incrimination.

The primary purpose of maintaining the limited abrogation in relation to documents is to enable inspectors to investigate potential workplace manslaughter offences and refer matters for prosecution where appropriate (consistent with other offences under the Act). Taking into account the protective purpose of the Act in ensuring the health and safety of employees and members of the public, there is significant public interest in ensuring that inspectors are able to access information and evidence that may be difficult or impossible to ascertain by alternative evidentiary means, and to use such evidence to bring enforcement action where appropriate.

Any limitation on the right in section 25(2)(k) arising from the limited abrogation is directly related to its purpose. The documents that an inspector can require to be produced are already in existence and connected with an organisation’s business activities, and therefore may be crucial in establishing the elements of a clause 4 offence. The limited abrogation is an established feature of the Act, and individual officers are therefore on notice that any documents they create may be required to be produced. Importantly, the requirement to produce a document to an inspector does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate an individual, the privilege would still be available.

The Bill includes transitional provisions which will make it clear that only an offence alleged to have been committed on or after commencement can be the subject of a prosecution for workplace manslaughter. However, the Bill clarifies that an omission to perform an act on or after the commencement could be still be conduct for the purposes of the offence, even if an occasion for performing that act arose before commencement. For example, conduct could capture an existing policy that was drafted before commencement but was not updated post commencement. This is not considered to provide retrospective operation, as the conduct captured would be the omission to update the policy post commencement.

I am of the view that there are no less restrictive means available to achieve the purpose of enabling inspectors to have access to relevant documents for investigation and enforcement, and access to such documents is necessary to hold individuals to account. In certain circumstances, other jurisdictions have provided a ‘use immunity’, but such an immunity is not appropriate for the new workplace manslaughter offence. Documents are crucial in workplace manslaughter investigations where it may otherwise be difficult to determine who was making decisions in complex corporate structures. It may not be clear to an inspector from the outset that the incident is a workplace manslaughter offence, but documents demonstrating negligent conduct that meets the threshold may be discovered as the investigation evolves. To provide for a ‘use immunity’ that restricts the use of produced documents to particular proceedings would unreasonably obstruct the role of inspectors and the aims of the offence to hold individuals to account for workplace deaths, as well as giving the holders of such documents an unfair forensic advantage in relation to criminal investigations.

I note that relevant investigation and prosecution agencies have advised that if a direct or indirect use immunity was provided in relation to documents, there would be great difficulty in securing a conviction for workplace manslaughter, thereby defeating the objectives of this amendment to the Act. In addition, a direct or indirect use immunity solely for a workplace manslaughter offence would not be appropriate because it would create inconsistencies with the rest of the compliance regime in the Act. From a practical perspective, it would be difficult to provide for a use immunity solely for workplace manslaughter only but not for the other offences in the Act.

For the above reasons, I consider that to the extent that clause 4 limits the right against self-incrimination, that limitation is reasonable and justified under section 7(2) of the Charter.

The Hon Jill Hennessy MP

Attorney-General

Minister for Workplace Safety

Second reading

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:38): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill will achieve three objectives—

• to deliver on the Victorian Government’s commitment to introduce new workplace manslaughter laws in the Occupational Health and Safety Act 2004 (OHS Act),

• to enshrine the role of the Workplace Incidents Consultative Committee in legislation, and

• to amend the Workplace Injuries Rehabilitation and Compensation Act 2013 to remove the requirement that the Chief Executive Officer of WorkSafe also be a Director of the WorkSafe Board.

Too many Victorian families have felt the pain of losing a loved one while they were at work, and know the feeling of injustice when negligence goes unpunished. Everyone should come home from work safe, and yet up to 30 people are killed at work in Victoria every year. Every death at work is one too many.

The Bill sends a strong message to employers that putting lives at risk in the workplace will not be tolerated, within the framework of the duties currently owed under the OHS Act. The Bill introduces workplace manslaughter laws that will apply to an employer, self-employed person or officer who, by their negligent conduct, causes the death of anyone who is owed an existing duty under the OHS Act. This could in some circumstances include a situation where negligent conduct causes an injury or illness to another person, who later dies from that injury or illness.

The offences are broadly based on Queensland’s industrial manslaughter offences, introduced in 2017, with important modifications to capture a broader category of potential victims and offenders. The offences will commence on a day to be proclaimed or at the default commencement date of 1 July 2020. WorkSafe and Victoria Police will have the necessary powers and resources to be able to effectively investigate any conduct that may be subject to these offences from the moment the offences are in operation.

In line with the Government’s election commitment, the maximum penalties for these offences will be around $16.5 million for bodies corporate and 20 years’ imprisonment for individuals. The prescribed imprisonment period ensures the penalty is consistent with the penalty prescribed for manslaughter under section 5 of the Crimes Act 1958 (Vic). These penalties reflect the seriousness of the offending and are designed to help prevent workplace deaths by creating a strong deterrence for organisations and individual officers against breaching their occupational health and safety duties.

The Bill will provide that organisations may be held criminally liable where their conduct amounts to criminal negligence, either directly, where an organisation’s unwritten rules, policies, work practices or conduct fail to create a culture of compliance with its responsibilities and duties, or through the actions or omissions of their employees, agents or contractors acting within the actual or apparent scope of their employment. In doing so, the Bill will address the gap in the common law that currently makes it difficult for corporations to be held criminally liable.

The standard of criminal negligence is, rightly, a high standard. In line with the common law, the Bill provides that conduct is negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances, and involves a high risk of death, serious injury or serious illness. The reference to serious illness is intended to capture appropriate cases where an officer or organisation’s negligence causes a serious illness that results in a person’s death.

An organisation with robust practices and procedures which comply with the OHS Act would not be guilty of these offences. The offences are intended to capture persons who are not compliant with their duties under the OHS Act. An organisation would also not be liable for the act or acts of ‘rogue’ employees (that is, employees who act outside the actual or apparent scope of their employment). This Bill is about holding an organisation to account where it has engaged in negligent conduct, not where an employee has failed to comply with the organisation’s prudent practices or instructions.

The Bill will also hold individual officers to account. An ‘officer’ includes those individuals at the highest level of the organisation, for example, directors of bodies corporate or partners of partnerships. It also captures people who participate in making decisions that affect a substantial part of the organisation’s business, or who have the capacity to affect significantly the organisation’s financial standing, regardless of their position within the organisation. The Bill will provide that an individual officer is guilty of workplace manslaughter where their negligent conduct constitutes a breach of the organisation’s duties under the OHS Act, and causes death.

The offences will not apply to employees who are not ‘officers’. This is consistent with the objectives of the Bill, which is to hold to account those with the power and resources to improve safety. The Bill seeks to address the gap in the common law that makes it difficult for corporations to be held criminally liable. An employee who is criminally negligent and causes death can be prosecuted under existing criminal laws, and therefore the Bill does not need to address any difficulties or create an additional offence for conduct that the law already covers.

In addition, consistent with the Government’s election commitment, the offences will not apply to volunteers, consistent with their exclusion from other offences under the OHS Act. We want to ensure that people are not discouraged from volunteering their time and effort. However, similar to employees, where a volunteer’s criminal negligence causes death, that person will remain subject to prosecution under existing laws.

The offences will apply widely to all types and sizes of organisations, to ensure that prosecutions may be brought in all appropriate cases. However, the Government acknowledges that there are circumstances in which it would not be in the public interest to prosecute workplace manslaughter, for example, certain situations in which a family member is tragically killed by another family member in a family business and prosecution would serve only to further traumatise the family. I note that there have been incidents on family farms involving machinery and vehicles, and decisions have been made not to prosecute the family members. These scenarios are not unique to workplace manslaughter and arise in other areas of criminal law. We are confident that current safeguards–in particular, the discretion afforded to prosecutors not to prosecute individuals in appropriate circumstances–will ensure that a prosecution will only proceed where it is in the public interest.

The offences are intended to capture conduct that occurs outside Victoria but results in a workplace fatality in Victoria, or vice versa. For example, if a person is killed in Victoria due to the negligence of an organisation, and the negligence is partly due to its occupational health and safety policies, it is intended that the organisation or an officer of the organisation may be prosecuted for the offence in Victoria even if the policies were drafted interstate. Similarly, the offences are intended to cover situations where negligent conduct occurs in Victoria, but the relevant death occurs in a different state. For example, where an employee is injured at work due to negligent conduct in Victoria, and dies in hospital outside of Victoria because of that injury.

WorkSafe will take carriage of investigations for potential workplace manslaughter cases with support from Victoria Police as needed. To assist with this work, WorkSafe will employ up to 40 new inspectors over the next four years as part of the new ‘More Inspectors. More Inspections.’ campaign, and more generally bring a greater focus on health and safety in the construction industry.

WorkSafe’s current coercive powers under the OHS Act will apply to workplace manslaughter investigations. This includes an inspector’s power to compel documents to be produced, for which the partial abrogation of the privilege of self-incrimination will be retained. This partial abrogation will not extend to a natural person having to explain or account for the information contained in that document. If such an explanation would tend to incriminate a natural person, the privilege would still be available. Using the existing OHS Act regime means that organisations and officers are currently on notice that any documents they produce could be used in an investigation for offences against the OHS Act. Maintaining these powers under the OHS Act reflects the significant public interest in ensuring that inspectors are able to access evidence relevant to a possible workplace manslaughter offence that may be difficult or impossible to ascertain by alternative means.

The Office of Public Prosecutions will be responsible for prosecuting the new offences, and will take over proceedings after the accused is committed to trial. The two year time limit to bring prosecutions for occupational health and safety offences will not apply to workplace manslaughter cases to ensure that there is sufficient time to investigate a workplace fatality and bring proceedings where appropriate. This is consistent with other manslaughter offences and is required given the seriousness and complexity of these offences.

Various defences will be available to people charged with workplace manslaughter—this is also consistent with other manslaughter laws. These defences include self-defence and the defences of duress or sudden and extraordinary emergency.

The Bill will also enshrine in legislation the Workplace Incidents Consultative Committee, to provide a necessary public voice to injured workers and the families of victims of workplace fatalities and serious incidents. A majority of members of the Committee will be comprised of persons who have been affected directly or indirectly by workplace incidents that involve death, serious injury or serious illness. The primary function of this Committee will be to provide advice about the information and support needs of persons who are affected by workplace incidents that involve death or serious injury or illness, and make recommendations for improvements to Victoria’s workers compensation scheme. The Committee will provide a unique perspective on how the scheme can best support injured workers and families.

Finally, the Bill will vary the governance arrangements of the WorkSafe Board to remove the requirement that the Chief Executive Officer of WorkSafe also be a Director of the WorkSafe Board. This will align these arrangements with analogous Government statutory bodies and clarifies the roles of the Board and Chief Executive Officer in line with best practice governance approaches.

I would like to thank members of the Implementation Taskforce, including Master Builders, Australian Industry Group, Victorian Chamber of Commerce and Industry, Victorian Farmers Federation, Housing Industry Association, Victorian Trades Hall Council, the CFMEU, Australian Workers Union, Electrical Trades Union and the National Union of Workers, as well as the Chair of the Taskforce, former Minister for Industrial Relations Natalie Hutchins. I would also like to thank all other stakeholders for their contribution to the development and refinement of these reforms, and for their support for, and commitment to, the underlying objectives of this Bill. The Government will continue to work alongside these stakeholders to make workplaces in Victoria as safe as they can be.

To close, I would like to offer my sincere condolences to the families and loved ones of all victims of workplace fatalities. In particular, I want to acknowledge the contribution of the Workplace Incidents Consultative Committee, especially the contribution of Lana Cormie, and Dave and Janine Brownlee, who also sat on the Implementation Taskforce established to consult on these laws. We appreciate their valuable input to date, and look forward to continuing to work with them on workplace safety reform to better support victims’ families and injured workers.

I commend the Bill to the house.

Ms McLEISH (Eildon) (10:38): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 13 November.