Second Reading - Workplace Safety Legislation Amendment (Workplace Manslaughter And Other Matters) Bill 2019

November 12, 2019

T Smith - At the outset of my contribution I want to say that we on this side of the house are deeply, deeply concerned about safety in the workplace and that we support a very rigorous and strong occupational health and safety regime in Victoria. Twenty-three workers died in their place of work in 2018.

That was 23 too many. The difficulty with this piece of legislation is that it essentially seeks to lower the threshold by which a prosecution for manslaughter within the workplace could be achieved. We already have the common law of negligent manslaughter. This common-law offence is historic, and it enshrines in law that the accused owes the victim a duty of care—absolutely owes the victim a duty of care. That principle in the common law of manslaughter applies everywhere in Victoria—in the workplace, in the streets, anywhere: The common law imposes a general duty on all people who are doing a dangerous act or who have charge of anything dangerous to take ordinary precautions to avoid harming other people … That is a fundamental of our law.

The accused may have a duty to act in a certain way due to his or her relationship with the victim. The fundamentals of those principles apply everywhere. Negligence—the idea of negligent manslaughter—is also well established: The test for criminal negligence is objective. The jury must compare the acts or admissions of the accused against the behaviour expected of a hypothetical reasonable person in the situation … … The difference between negligent manslaughter and reckless murder— and I thank the Judicial Commission of Victoria for these notes— lies in the state of mind of the accused and the degree of foresight regarding the consequences of his or her actions, rather than in the degree of carelessness … The concern I have with this bill, and this particularly pertains to new sections 39A and 39F being inserted in the Occupational Health and Safety Act 2004, is that the proposed sections raise the duty of care from the current common-law standards and tests that are based on community standards of care to a different set of standards.

The proposed act allows evidence of omission to perform some duty—say, in legislation or self-operation safety rule—as a ground for negligent manslaughter. This now means that a breach of a civil rule could be a basis for a manslaughter charge based on a substantially lesser culpability of mens rea or actus reus. That would not be possible under the current laws. So this amendment is an attempt to legislate a duty of care and a standard of care which lowers the threshold bar of what constitutes manslaughter only in workplaces—nowhere else.

The proposed changes will bring into contention the possibility of the accused being people who had no intent to commit any crime by omission or recklessness—intent being rather important. This law will widen the base of the people who can be brought up in a case in which they may have little or no say or influence. The proposed section 39F expands the range of people to whom the duty is owed. So not only do the combined proposed changes set a new, lower standard for what is considered negligent, but they also expand who the duty is owed to. The proposed laws have a potential to introduce into Victorian law the concept of vicarious criminal liability as possibly an unintended consequence, and this will be new territory for criminal offending. The government wants to change the law of manslaughter quite dramatically within the workplace.

We have a very strong OH&S regime already in Victoria. The crime of reckless endangerment of persons in the workplace already carries a five-year jail term. It is my concern that the changes to the law of manslaughter within the workplace go too far, and there is quite a lot of evidence from employer groups that this reform will not have the desired effect of making workplaces safer. I have received quite a degree of correspondence from the Housing Industry Association (HIA), for example, who consider that without the following changes employees should be included in the offence and that protections need to be ensured against self-incrimination and who qualify the direct attribution of criminally negligent conduct of employees to a body corporate to exclude circumstances where an individual or family business could be prosecuted in relation to the death of a relative.

I have received correspondence also from the Master Builders Association of Victoria. As the shadow Minister for Planning, the construction industry is absolutely vital to Victoria, and it is for these reasons that I have read into Hansard some of the contributions that have been made by the Master Builders Association and indeed the HIA. Interestingly, this bill only applies to employers; it does not apply to employees. I think as a basic principle of the law, rules should apply equally in a given circumstance to all. As I said earlier, this bill drastically changes the law of manslaughter within only the confines of a workplace, it lowers the threshold dramatically for what could be considered that common-law crime anywhere else in the state and equally it only applies to employers. Now, I think there is an element of politics in this—an ideology that I have only heard the Labor Party and various aspects of the union movement advocate for.

These are the concerns that I have, and that is why the member for Ferntree Gully is moving the following amendments: That all the words after 'That’ be omitted and replaced with the words 'this house refuses to read this bill a second time until the Andrews Labor Government has fully addressed concerns regarding: (1) the exclusion of employees and co-workers as applicable duty holders; (2) the privilege against self-incrimination in relation to the production of documents; (3) the attribution of criminally negligent conduct of employees and other duty holders to a body corporate; (4) the application of the offence to family businesses; and (5) the exclusion of senior officers of the Crown as applicable duty holders … Talking about bosses, I note that this bill excludes senior public servants, the Chief Commissioner of Police, the Premier and other senior office-holders of the Crown.

One wonders why that is the case, given Labor’s purported desire to embark on these reforms which they took to the last election. I will spend my last minute, though, reflecting on some of the advocacy from employer groups in Victoria. Ai Group has done a wonderful job. The Housing Industry Association has done a wonderful job advocating against these reforms, as has the Victorian Farmers Federation. But I must say that the Victorian Chamber of Commerce and Industry has been less than active in its defence of industry and indeed shining a light on some of the extreme aspects of these proposed reforms that in many other areas of the economy people believe go far too far. Mark Stone is leaving VCCI soon. I think many in business are pleased that he is leaving because he has been a very poor advocate for business in this state. He has done very little to advocate on behalf of growing businesses in Victoria and has once again caved in.