At this point the Bill needed only to make it through the Legislative Council in order to become law. It had already gone through the House of Assembly (Lower House) without too much aggravation from opposing views... primarily because there Government has the numbers.
I attended the debate in this area and sat quietly in the galley as the Bill was discussed. There would have been no more than a half a dozen politicians present. Quite extraordinary... I always thought that most (if not all) members of parliament would be obliged to participate in such discussions or at least pretend to be interested. But then...it wouldn't be the first time I've been shocked at the way our judiciary system is run and I suppose I was able to leave the galley knowing the Bill would get through. That's something.
The concern from here on however was that the Bill was now headed for the Legislative Council - the Upper House.
The Government does not necessarily have the balance of power in this house. The Bill could very easily be stopped dead in its tracks at this point.
The Liberals never made light of the fact that they would not support the Bill. The party website outlined that point quite clearly and just as evident was that the opposing business lobby was working hard to block the Bill - or at least water it down significantly - at this level.
I opted to wait and see what discussion would come from the Bill's introduction there before I put pen to paper ... or fingers to keyboard as the case would be here. I'm really glad I did. The HANSARD gave me a great insight into what the opposition was pushing. It also gave me an enormous amount of insight into just how misguided those opposing views would be.
You can read the HANSARD by going back to the Penalties Bill main page and following the links on the left hand side.
SECTION 59 of the act (as it reads below) is referred to as an 'Aggravated Offence'. It outlines a specific set of parameters which must be proven in order to be regarded as a workable law. In its 20 year history it has never been used. Why? You decide.
59. (1) Where a person contravenes a provision of Part 3— (a) knowing that the contravention was likely to endanger seriously the health or safety of another; and (b) being recklessly indifferent as to whether the health or safety of another was so endangered,
the person is guilty of an aggravated offence and liable upon conviction to a monetary penalty not exceeding double the monetary penalty that would otherwise apply under Part 3 for that offence or imprisonment for a term not exceeding 5 years or both.
(2) An offence against this section is a minor indictable offence.
The maximum penalty currently stands at AU $200,000 (that being double the value of a Part 3 fine which is AU $100,000).
At first glance this clause appears to have some teeth - we have a potential prison term and a doubled penalty. However, on closer examination the reality is very different. If we look at the wording as it currently stands and remembering that the prosecution must prove its case beyond reasonable doubt...
In highlighting key words let's look at the word - knowing. The onus is on the prosecution to prove that there was a knowledge of serious risk. Regardless of how obvious a risk may seem, there is a problem in assigning knowledge to a corporate body because a corporate body is not 'one mind' - a company often consists of many people at various levels of responsibility. The argument here - does a corporation have a mind?
It has already been established that the basic principles of 'criminal liability' under current criminal law systems around the world have a great dilemma trying to attribute criminal liability to a corporation - a group of 'minds'. There lies the argument against 'Industrial Manslaughter' legislation within the legal system. One must question then how s59 was allowed to pass through legislation without addressing this quandary?
Section 59 clause a) then requires this knowledge to be attributed to a likelihood (the use of the word likely) of serious risk to safety.
Part (b) then further requires proof that the corporation is recklessly indifferent to that likely serious risk.
So in its current form and in layman's terms: Section 59 requires proof that the company knew what it was doing was likely so dangerous that it would seriously hurt or kill an employee and exhibit a complete disregard - ie. they didn't give a brass razoo.
It would be very interesting to know what the minds of the legislators were thinking when this clause was given the thumbs up. No one is suggesting that any piece of legislation that could send an employer to prison should be easy to convict - but nor should it be impossible.
When a drunk gets into his car he doesn't know that his actions will hurt anyone. It's probably fair to say he knows (however clouded his judgement may be) that he's breaking the law but he believes he can get away with it - he's done it before and not been caught nor has he hurt anyone. Under the criminal law system, if he hits another car and kills someone, it's quite possible (even likely) that he will go to prison. It's a very different law - the one that you and I must abide by versus the one that a company adheres to.
Section 59's wording is not dissimilar to that of a murder charge under criminal law. The content below comes directly from the Legal Services Commission of South Australia website in its description of murder.
>>> or that the defendant knew or knew that it was probable his or her act would cause death or GBH (Grievous Bodily Harm)<<<
It is important to note also that under the laws that most of us are expected to obey, murder is a MAJOR indictable offence. It also carries a penalty of a potential life term in prison.
Why does the OHS&W Act 1986 refer to S59 as an 'Aggravated Offence'? Why not Intentional Manslaughter?
Let us assume for a minute that there was a successful charge brought against a company under s59 ... possibly in a situation where a very long paper trail was established to prove the required parameters ... does no one question why such a reckless and irresponsible mind-set would only be regarded as a MINOR indictable offence? And why then only a 5 years prison term - why not a more comparable penalty that would apply to criminal law the rest of us are bound by?
It is completely unacceptable that such legislation has remained unchallenged for two decades. That alone speaks volumes.
We must have real legislation. Legislation which addresses prevention as the primary goal but also then ensures ANY act of careless indifference is dealt with in a way that sends a significant message to ALL corporate entities and their employees. The only way this will work is if those guilty of such crimes are treated the same as the rest of us under criminal law.
In summary, SECTION 59 looks impressive ... and that is where it's function ends.