Second Reading — Cognate Debate

Resumed from an earlier stage of the sitting.

Comments and speeches by various members

HON ALISON XAMON (North Metropolitan) [8.09 pm]: I indicate that I am the lead speaker for the Greens on the Work Health and Safety Bill 2019 and the Safety Levies Amendment Bill 2019, which we are debating cognately. I am really pleased to indicate that the Greens will be supporting this legislation. I am particularly pleased that the legislation has received priority for passage through the Parliament. It is a package of legislation that I have wanted to see introduced for quite some time. I have a few comments to make about it. I wanted to indicate how pleased I am that we are finally debating this legislation. Judging by the comments made today, it looks like it will receive the support of the house. I believe that this bill has the capacity to be transformational. Our occupational health and safety laws will be repealed in their entirety. Our mines safety and inspection laws will be repealed insofar as they relate to work health and safety. Similarly, our petroleum and geothermal energy laws will be repealed insofar as they pertain to work health and safety matters. In place of all those repealed laws, the bills will apply to all sectors and we will see the creation of regulations that are supporting them for the mining sector and the petroleum and geothermal sector, and a general one for all other sectors. It is really a serious revision of the way we create occupational health and safety laws within this state.

The very short Safety Levies Amendment Bill 2019 confirms the continuation of existing safety levies within the mining, petroleum and geothermal industries. That is pursuant to the constitutional requirement that tax bills be separate bills. This bill has a very long history. I have been speaking about the need for reform in this space since the thirty-eighth Parliament. In 2008, COAG entered into a formal intergovernmental agreement for harmonised national health and safety laws. Following that, in 2009, we saw the national review of the model occupational health and safety laws. A regulation impact statement by Access Economics supported model laws being adopted. It found that although costs and benefits were not readily quantifiable, the model laws were essentially about harmonisation rather than substantive changes. Therefore, although there would be costs for multijurisdictional businesses learning the new rules, they would easily be offset by no longer having to deal with different OSH regimes across the various jurisdictions, and there would be no costs for workers. Although governments would have some small rollout costs, they would benefit from national reviews that were duplicated in each jurisdiction. In addition, if the number of workplace incidents decrease, obviously governments will benefit from increased taxes and reduced welfare payments. It was calculated at the time that adopting the model laws would end up with Australia receiving a net benefit of $180.7 million. It is important to note that that is an Australia-wide calculation. Regarding WA specifically, page 4 of the explanatory memorandum puts the regulatory benefit to WA at $19.5 million and says that WA Treasury’s Better Regulation Unit sees no need for a further regulatory impact assessment.

Following the national review and address in 2011, the Model Work Health and Safety Act was published. It has been amended once since then, back in 2016. Those model laws have been adopted by all other Australian jurisdictions except Western Australia and Victoria, but Victoria was the original model from which the model laws derived. If WA legislates, uniformity across Australia will be achieved. I note that New Zealand has also updated its health and safety laws in light of the model laws’ contents. Over the years since the model laws were implemented interstate, they have been reviewed repetitively. I mentioned that this is a matter that I was talking about in this place, albeit sitting where Hon Charles Smith is sitting at the moment, during the thirty-eighth Parliament, so I have been talking about this matter for quite some time. I was one of the people who got very frustrated at the government’s apparent reluctance at the time to introduce the uniform legislation—the model laws. I ended up introducing my own bill into this place, which was quite comprehensive. It incorporated a number of the model law provisions that I felt needed to be in place and, in fact, upgraded a number of the provisions to reflect what I thought were, and still believe are, quite important provisions that could be improved further. At that point, within that bill I also introduced industrial manslaughter under the Criminal Code. That was a multipart bill. Such was my frustration at the lack of progress that was being made to introduce the model laws, I ended up introducing my own bill into the thirty-eighth Parliament.

Getting back to the way the model laws have been repetitively reviewed, I refer to the report of an inquiry by the Senate Standing Committee on Education and Employment entitled “They Never Came Home: the Framework Surrounding the Prevention, Investigation and Prosecution of Industrial Deaths in Australia”. That ended up being published in October 2018. Two months later, in December, a report containing the outcomes of a formal review of the model laws was published. It was carried out by the independent reviewer, Marie Boland, whom many members have already spoken about. She was appointed by Safe Work Australia. This is the Boland review that we keep referring to. The Boland review found that the model laws were mostly working as they were intended and that national harmonisation of the laws was still strongly supported, but there were problems with consistency, complexity and clarity. That report made a number of recommendations.

Meanwhile, in 2017, this government created a Ministerial Advisory Panel on Work Health and Safety Reform to advise it on creating a single harmonised act relating to work health and safety. That panel was chaired by Stephanie Mayman, a good friend and also well known to many of us from her days at UnionsWA and also as a Western Australian Industrial Relations Commissioner. That report in June 2018 contained a number of recommendations. Since the bill was introduced, it has been considered by not one, but two committees—our own Standing Committee on Uniform Legislation and Statutes Review and the Standing Committee on Legislation. I want to thank the members of both those committees for their reports. I also note that the legislation committee carried out considerable stakeholder consultation during its inquiry. In addition, I note that the Standing Committee on Public Administration completed its three-year inquiry and report into WorkSafe in time for this debate. I thank the members of that committee as well. That is a comprehensive report, components of which are quite timely and relevant to this particular legislation.

The bill that we are debating today is broadly faithful to the model laws, with amendments as recommended by the ministerial advisory panel that largely reflect existing WA law. Some parts of the model laws have been omitted from the bill. These include part 7 and the civil penalty provisions. Those omissions are not controversial. They were omitted only because during consultation, stakeholders expressed a strong preference to continue with the current system under the Industrial Relations Act and the Fair Work Act rather than replacing it with the model laws version. The model law provisions about inquests are also omitted from the bill. Again, the omission was recommended by the ministerial advisory panel in order to ensure that we had consistency with the Coroners Act. Model law clause 233 is omitted because it is already covered by other law. Concepts in the model laws that do not currently exist under Western Australian work health and safety laws were also omitted from the bill. Provisions for injunctions are an example, because the WA tribunal does not currently have that power and I understand that to include it would have necessitated a lot of extra drafting. The concept of recklessness and the provisions for infringement notices are other examples. I am told that consultation did not reveal any appetite to include those provisions, and that to include them would have necessitated administration to support the process. The recent report of the Standing Committee on Public Administration, following its three-year inquiry into WorkSafe, found that infringement notices would provide WorkSafe inspectors with another tool at their disposal for breaches of safety and health laws and it recommended that the minister introduce a bill to grant inspectors that power.

As well as the bill adopting most of the model laws, it will implement two of the most important reforms that were recommended by the Senate Standing Committee on Education and Employment and by the Boland review, “Review of the Model Work Health and Safety Laws: Final Report”. I strongly welcome the bill’s inclusion of industrial manslaughter. This is consistent with the recommendations of both the majority Senate committee and Boland review. It is the result of long-term campaigning by unions, individuals and other stakeholders. I think it is a really important step towards making sure that workers return home from work, safe and well. I think it sends a very clear message that workplace deaths are utterly unacceptable and that if someone is killed at work, it is just as tragic as it is when people die in other circumstances.

I have already mentioned the bill that I introduced into this place in the thirty-eighth Parliament. Amongst other things, it would have introduced industrial manslaughter as a crime under the Criminal Code. Members are aware that I reintroduced that bill in this fortieth Parliament as the Criminal Code Amendment (Industrial Manslaughter) Bill 2017. Almost a decade before I introduced that bill, the “National Review into Model Occupational Health and Safety Laws” had identified the need to make noncompliance with the duty of care to workers a criminal offence, but it was not legislated in Western Australia. The United Kingdom and the Australian Capital Territory had legislated it and, at the time, Queensland had recently committed to legislation. My bill sought to introduce the offence of industrial manslaughter into the Criminal Code, with penalties that were similar to those for the offence of manslaughter. We were not going to distinguish whether someone was killed by manslaughter or by industrial manslaughter. It also provided a range of other sentencing options, including adverse publicity orders and orders compelling offenders to make their workplaces safer. Under the provisions in the bill, the offence would be made out if the worker died in the course of employment or following injuries suffered in the course of employment if the employer’s conduct had caused the death in circumstances in which the employer knew death or serious harm was likely, but acted or failed to act in disregard of that likelihood. The bill also aimed to overcome difficulty in prosecuting companies for manslaughter by making senior officers criminally liable. We began debate on my bill in August last year. At the time, the government indicated it opposed the bill in form but not in substance and expressed support on the record for industrial manslaughter laws. That was a bit of a shift from when I introduced the legislation in the thirty-eighth Parliament. At that point, it did not receive as much support for the policy as it received many years later.

We are now dealing with the Work Health and Safety Bill 2019, which was introduced two months after we debated my bill in this place on industrial manslaughter. I was very clear at the time—I still am—that I welcomed the bill in front of us and indicated my support for the industrial manslaughter provisions. I understand that the way industrial manslaughter is going to be enacted is going to be the subject of more debate when we get into the Committee of the Whole stage, but I remain passionately supportive of the need to be able to find individuals criminally culpable when they have knowingly made decisions that have led to workers’ deaths.

It would be remiss of me to not acknowledge the work of the unions that have been pushing to have industrial manslaughter provisions included as an offence for quite some time. I particularly note the good work of the Maritime Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union, which have been absolutely forthright in wanting reform in this space. As far back as when I was working at the Communications, Electrical and Plumbing Union—now the Electrical Trades Union—there was a very strong desire for industrial manslaughter legislation to come into play. One of the reasons for that is that unions are at the forefront of having to pick up the pieces when their members are killed on worksites. Far too often, this has occurred in circumstances in which we can tell the employers simply have not given a damn about prioritising work safety.

I also have to acknowledge the incredibly brave family members and individuals who have met and spoken with me over the years to share their stories. For me, the impetus to decide I needed to introduce legislation for industrial manslaughter followed a worker safety rally that I attended. An 11-year-old girl stood up next to her mother while she talked about her husband—the daughter’s father—who had been killed on a worksite. No justice had ever come to them for what had happened. I can still remember the look on the girl’s face—how stricken and lost she looked. I knew at that point that I had to try to do something to continue to push that debate.

When I introduced industrial manslaughter legislation, I copped a lot of flak, particularly from the Chamber of Commerce and Industry of Western Australia and the Chamber of Minerals and Energy. Quite frankly, they made ridiculous responses including stupid comments about how occupational health and safety matters needed to be all carrot and no stick, which is just stupid. I am quite happy to see plenty of carrot in occupational health and safety laws, but for people who are cutting corners knowing that it could kill their workers and then their workers die, I have no problem with the stick being applied. As far as I am concerned, those found guilty of industrial manslaughter are really the worst of the worst. They have no place being around human beings, let alone being in charge of workers. I am really pleased that we seem to have been able to shift the debate around the importance of workers’ lives from when I first started trying to advocate for this.

I also note in particular, as I know many members did in the other place, the work of Regan Ballantine, whose son, Wesley, was killed on a worksite in circumstances that should never have occurred. Those who have seen the photos of that site, as I have, will share my shock and horror that it was even able to stay open. Those prosecutions have run their course and the penalties that have been handed down for Wesley’s death are appalling and inadequate. I have spoken about it many times in this place. Frankly, there has been no justice for Regan and Wesley, who had his whole life ahead of him. All I can say to Regan is that I hope this bill gives her some comfort. I hope this bill at least helps in some way, but I know she would do anything to have her son back instead. Regan has shown a level of courage and stoicism in advocating reform of these laws, giving the human face for why we need these laws in a way that has been absolutely critical in this state. I thank her and I thank all the families who have shown such courage in speaking at inquiry after inquiry, have bared their souls and revealed the trauma and relived it over and again. I really hope that we can start seeing a shift in the number of people who die.

I also strongly welcome the inclusion in the Work Health and Safety Bill of a ban on insurance or other indemnities against liability to pay a fine, which is also a key part of what it means to have strong penalties for industrial manslaughter. This was recommended unanimously by the Senate Standing Committee on Education and Employment. It was also recommended by the Boland review. The Standing Committee on Public Administration also supports it. There have been reports that in other jurisdictions some persons conducting a business or undertaking have had penalties imposed against them paid by their insurance company. Clearly, this would hugely undermine the sentencing aims of deterrence and punishment. We are the first Australian jurisdiction to legislate a ban. New Zealand has one but no other Australian jurisdiction does yet. I think it is a really important provision because it is a bit pointless trying to include these incredibly strong penalties and making individuals personally liable if, ultimately, it can be written off as yet another expense. It defeats the purpose entirely of making people personally culpable for the consequences of their behaviour.

I note the government has taken the opportunity in the bill to also address gaps in the law that have been revealed through practice or case law. For example, there is provision for cross-border information sharing. There is provision for automating certain parts of the authorisation process such as confirming that an applicant is over 18 years of age. There is provision for a single application to cover a number of matters when appropriate instead of requiring one application per matter. The regulator will be empowered to conduct broad investigations that review systems or themes—for example, the culture within a particular industry. I think that is a really important provision. There is provision for copying and retaining documents. There is provision for seized things to be analysed using, if appropriate, a form of testing that results in the thing’s destruction.

The Greens are pleased that the bill also contains a review clause. The review clause provides for five-yearly reviews and, very sensibly, this must include consideration of the most recent review of the model laws. The report of the review of the bill must be tabled in Parliament within 12 months of the expiry of the five-year period. That is important, because it means that, hopefully, we will ensure that we are keeping up-to-date with the necessary reforms in this space.

All in all, this bill delivers a bunch of much-needed reforms and the Greens welcome it and support it accordingly. However, there are a couple of areas in the bill in which we could have gone even further. I hope they can be an area of reform at some point in the future unless, of course, the chamber decides it would like to support my amendments; in which case, members will have the additional reform now. I think there is a lack of express duty of care in relation to workers’ psychosocial health. Some stakeholders have expressed disappointment to me that the bill lacks an express duty of care for workers’ psychosocial health. The bill defines health as physical and psychological health; therefore, the primary duty of care under clause 19 to ensure as far as is reasonably practicable workers’ health and safety clearly includes workers’ psychological health, and that is good. It is also good that the explanatory memorandum confirms at page 8 that the term “health” is used in the bill in its broadest sense and includes psychosocial risks to health such as stress, fatigue and bullying. I welcome that clarification on the record. My concern, however, is that this still might not be clear enough. I am thinking of two situations in particular. The first situation is when a worker suffers psychological harm as a result of physical injury—for example, through violence in the workplace—and those resulting mental health issues can last a lot longer than the physical injuries. The other situation is that of fly in, fly out workers. We know that FIFO workers are at increased risk of experiencing psychosocial issues at work, including isolation, fatigue, extreme environmental conditions that interfere with bodily comfort and the ability to sleep, and very heavy work demands, as well as being away from family and regular support networks.

Members will be aware of the 2015 report of the Education and Health Standing Committee of the other place, titled “The Impact of FIFO Work Practices on Mental Health”. At the time, I was president of the Western Australian Association for Mental Health and took great interest in that report when it was released; indeed, I was on the committee that helped develop the former government’s response to some of those recommendations. I came off that committee when I was preselected to come back into this place because it was not appropriate for someone who would be clearly running as a candidate. I was on that committee for a period.

Members will be aware also that former member of Parliament John Bowler, who is now the Mayor of Kalgoorlie–Boulder, was quoted in November last year talking about workers at a drilling company. He said —

“They’re expected not to leave that camp when they’re working 13 days in the super pit, they have one day off then they work another thirteen days straight and they’re expected to stay in that camp in Boulder for the next thirteen days,” ...

“Then they take them on a bus to the airport and fly them back to Perth.

“Now those workers have less freedom than people at the Goldfields Regional Prison.”

They are pretty strong words. A 2016 report by the Australian National University, which was commissioned by Safe Work Australia, called “Effectiveness of the Model WHS Act, Regulations, Codes of Practice and Guidance Material in Addressing Psychosocial Risks”, said that the evidence showed that having a specific legal obligation motivates organisations to address psychosocial hazards. However, unfortunately, it is especially necessary to provide that extra clarity for PCBUs, I believe, that have FIFO workers to counteract the completely erroneous idea, and I think a deeply damaging myth being peddled by some who should know better, that FIFO workers simply come from a demographic with a naturally higher risk for taking their own lives. That is a really dangerous narrative, by the way, and one that has been heavily debunked. If it were true, the appropriate response would be to ensure additional targeted assistance, not to absolve PCBUs of responsibility for their workers’ health and safety. Any way we look at it, it is an issue and all the more reason to pay extra close attention.

A report was commissioned by the Mental Health Commission and undertaken by the Centre for Transformative Work Design, entitled “Impact of FIFO work arrangements on the mental health and wellbeing of FIFO workers”. It proved that there were specific risks around the nature of FIFO work and not simply because it was a demographic of people who are attracted to that particular form of work. The reality is that the peculiarities of FIFO work lend themselves to a higher incidence of mental health issues and suicidality if inappropriate mechanisms are not put in place to address those issues and ensure that people are able to access the right services. That is just a fact.

I was delighted last year when the government introduced the new “Code of Practice: Mentally healthy workplaces for fly-in fly-out (FIFO) workers in the resources and construction sectors”. However, as I said in a member’s statement at the time, I would have been even more delighted if the recommendations in the code had been legislated. I think its content is important and should be enshrined in law and enforced properly because the subject matter of that code is workplace conditions that can so damage workers’ mental health that they can cause them to suicide.

I say again that I am delighted that health is defined in this bill to include psychological health, but I am disappointed because I think the government has missed the opportunity to provide some clarity about what that means with respect to the duty of PCBUs to reasonably address psychological and psychosocial risks. If members look at the supplementary notice paper, they will see that I have moved an amendment aimed at providing more clarity on this, so I look forward to members supporting that amendment so that we can have that clarified.

Another area in which the Work Health and Safety Bill 2019 has not gone far enough and could have done better is its failure to give unions the right to prosecute breaches. I want to be very clear that I am not just saying that as someone who is pro-union, which I most certainly am. It is a practical response to a very longstanding problem. WorkSafe Western Australia has been horribly underfunded for a long time, and that is borne out in the thirty-first report of the Standing Committee on Public Administration that was tabled in this place. Indeed, that is the subject matter of quite a number of the findings and recommendations of that report. In particular, WorkSafe has not been resourced sufficiently to prosecute near misses or minor offences, yet those are exactly the cases in which there is a chance to prevent workers from being harmed rather than just prosecuting after someone has been hurt or killed. These are the cases in which I think a real difference to worker safety can be made, to help make sure that every worker gets home safely to their family. It is really important to carry out proactive prosecutions—the difficult cases, such as prosecutions for noncompliance with improvement notices. That is not happening, and I think it is appalling. If WorkSafe cannot carry out proactive prosecutions that can prevent injury from occurring, there needs to be a mechanism to allow someone else to do so.

During the thirty-eighth Parliament, I introduced a private members’ bill that sought to achieve that. Clauses 12 and 13 of my Occupational Safety and Health Amendment Bill 2010 gave standing to interested persons to bring prosecutions under the OSH act if the interested person believed an offence had been committed but, following investigation, the commissioner had refused to prosecute. The definition of “interested persons” included the union of persons who had been affected physically by the alleged offence. I am talking here about having an alternative option. Obviously, the best option is for the regulator to be properly funded; that is clearly the best outcome. This is something that the Senate committee unanimously stressed in its report at recommendations 6 and 12, and is stated over and again in the Standing Committee on Public Administration’s report. I acknowledge that the minister said in the second reading speech that the government has brought in 21 new inspectors on top of the six inspectors already added in this term of government. The minister also said in that speech that there were increased resources for educational work and communicating with the broader community about the importance of work health and safety. In his reply to the second reading debate in the other place in February, the minister said that the amount of increased resources for WorkSafe was 25 per cent. Also in the other place, in November last year, the minister said that the number of new inspectors appointed had brought the Western Australian inspectorate up from the smallest proportion in Australia to at least the middle of the pack.

These are really welcome changes; of course they are. They are desperately needed and not before time. However, the Standing Committee on Public Administration’s report makes it clear that even with these increases, it is still not enough. In particular, there are two gaps. The first is that WorkSafe needs more than new inspectors; it also needs more lawyers if it is going to do the appropriate number of proactive prosecutions. Secondly—this is the key point that I really want to stress—there is no guarantee that the same or greater proportion of resourcing is going to continue into the future. There is just no guarantee that that is going to be the case, and it is entirely possible that here in Western Australia we could once again drop to having the lowest number of inspectors in Australia. There needs to be a fallback mechanism to enable meritorious prosecutions to take place when WorkSafe cannot, or will not, mount such prosecutions.

That is the substance of my second proposed amendment on the supplementary notice paper. I note that recommendation 80 of the Standing Committee on Public Administration’s report is that the minister report to the Legislative Council during consideration of the Work Health and Safety Bill 2019, providing the reasons for his decision not to include a provision empowering unions to initiate and conduct prosecutions. It may be the case that just having such a provision available within the legislation will serve the purpose of effectively putting the regulator, WorkSafe, on notice that if it does not deliver, someone else potentially will. It may also be enough to ensure that prosecutions occur at the rate at which they really should.

My third proposed amendment on the supplementary notice paper is small but significant, yet uncontroversial, and I hope all members will support it. All it will do is render reviewable any decision by a regulator to not approve the witness’s choice of legal practitioner. As a matter of principle, I consider it essential that the discretion of the regulator to deprive a person of their lawyer should be subject to review.

My last proposed amendment —

Hon Sue Ellery: Honourable member, was the third one to render the regulator’s decision to —

Hon ALISON XAMON: My amendment is on the supplementary notice paper. It renders reviewable any decision by a regulator to not approve the witness’s choice of legal practitioner.

My last proposed amendment excludes strata bodies from the definition of “person conducting a business or undertaking” in certain circumstances. On page 9 of the explanatory memorandum, it states that householders who engage persons other than employees for home maintenance and repairs in that capacity—for example, tradespersons undertaking repairs—are not intended to be PCBUs. However, it would seem that a strata company doing exactly the same thing can be a PCBU unless it has been specifically exempted by the regulations. I remind members that a strata company is just all the individual unit holders together, and many, but not all, are householders. Their council of owners consists of volunteers, and it is not fair to discriminate against those householders just because their home is not detached. The model regulations exempt them. Regulation 7 states —

(1)  For the purposes of section 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(2)  Sub-regulation (1) does not apply if the strata title body corporate engages any worker as an employee.

The bill in front of us today does not contain an exemption and the government has made no commitment to prescribe an exemption. Therefore, I will be moving an amendment to put WA strata bodies in exactly the same position as they are under the model. Again, I hope members will be willing to support that.

I move on to talk about dangerous goods and high-risk plant. The bill is drafted so as to be capable of encompassing dangerous goods and high-risk plant in the future, if wished. Schedule 1 contains the relevant provisions, and its content accords with the model laws. Schedule 1 can only apply when and if regulations are made that define dangerous goods and high-risk plant. As recommended by the ministerial advisory panel, government is taking a two-stage approach to decide whether such regulations should be made. First, the six existing sets of regulations will be amalgamated and reduced to two, and a single licensing system will be created. During this stage, the Dangerous Goods Safety Act 2004 will be retained. The department will continue to regulate work safety and health aspects such as lead, asbestos, carcinogens and airborne contaminants in the workplace. The Dangerous Goods and Critical Risks Directorate will continue to regulate containment, storage, transfer and emergency management. At this stage it is expected to take 18 months to two years. The second stage will be a review to consider whether to bring dangerous goods laws under the bill by making regulations that would enliven schedule 1, or leave it as separate legislation. The review is intended to be within two years of the bill being proclaimed.

The Standing Committee on Uniform Legislation and Statutes Review found that clause 12A is a Henry VIII clause, and in its response conveniently included at appendix 2 of its report that the government has indicated it would move an amendment to delete clause 12A in schedule 1 prior to that happening. The supplementary notice paper containing alternative amendments has, of course, been issued. All the substantive parts of the bill will commence simultaneously upon proclamation. Part 16 sets out how the transition is going to happen. The explanatory memorandum says that this is based on principles prepared by Safe Work Australia for the model laws upon which this bill is based, with adaptions for the WA jurisdiction that have been approved by the ministerial advisory panel.

Significant features of the transition include the WorkSafe WA Commissioner becoming the WorkSafe Commissioner; the State Mining Engineer becoming the Chief Inspector of Mines; the members of the Commission for Occupational Safety and Health becoming members of the Work Health and Safety Commission; the Mining Industry Advisory Committee continuing until the new Mining and Petroleum Advisory Committee is established; and pre-existing advisory committees and pre-existing inspectors continuing. The establishment and terms of the various offices and bodies under schedule 2 of the bill will be much the same as they are currently under the Occupational Safety and Health Act. However, there are some changes to implement the recommendations of the ministerial advisory panel. For example, there will be two independent members of the Mining and Petroleum Advisory Committee who neither conduct businesses or undertakings in the industry nor work in the industry. Members of the Work Health and Safety Commission will be able to waive their remuneration or elect for it to be paid to the organisation that nominated them, which will help address the tax issues that sometimes arise for members. The tribunal conciliation powers will be extended.

During the transition, safety levies in the mining sector and the petroleum and geothermal energy sector will continue. Unless otherwise specified, the current law will continue to apply to pre-existing offences and contraventions, accidents, incidents, deaths, injuries or illnesses, and notices. The current law will also continue to apply to pre-existing unresolved disputes. During the transition, the regulator and inspectors will have powers and functions under both the existing law and this legislation. Pre-existing legal proceedings in the Occupational Safety and Health Tribunal will continue under the Work Health and Safety Tribunal, and the jurisdiction of magistrates will continue unchanged. Pre-existing legal protections from personal liability for things done or omitted to be done before commencement day will continue. Pre-existing codes of practice will continue and, in future, will be variable or revocable under the legislation. There will be a grace period before the new health and safety duties apply to plant, substance or structure that was started but not finished before commencement day. Pre-existing safety and health representatives, and the pre-existing elections for them, will continue but their terms will expire in a year. Similarly, pre-existing safety and health committees, and the pre-existing processes to establish them, will continue but their terms also will expire in a year.

There is a very broad regulation-making power, including the ability to render parts of this legislation or any other act inapplicable, or applicable with modifications, to a specified matter or thing.

It is a huge bill. There are huge changes that have finally been proposed and are afoot and a massive number of improvements. I am really pleased that we are finally going to see this come to fruition. There are a number of amendments on the supplementary notice paper and we are obviously going to work through them and see where they end up.

I desperately hope that we still end up with a bill that includes the provision for industrial manslaughter. As I have said, I have personally been pushing for this for a decade. I am desperately keen to see industrial manslaughter legislation on the statute book in Western Australia. When I took my seat for the fortieth Parliament, I indicated that there were two reforms that I desperately wanted to ensure saw the light of day before I ended my term. One was the introduction of industrial manslaughter legislation in this state, and I hope that this is the bill that will finally bring it on. The other one, of course, is the reform of the Criminal Law (Mentally Impaired Accused) Act, which I note has not made it to the fortieth Parliament. That is why I have no choice but to run again for the forty-first Parliament. Hopefully, this legislation will see the passage of the first reform that I am desperate to see pass, but clearly the second one is not going to see the light of day, so I will have to try to come back and make that my mission for the forty-first Parliament.

I am very pleased to support this legislation. Like I say, it does not go as far as I would like and I have some amendments on the supplementary notice paper that reflect what I think are improvements that would make it even more workable, but obviously members will make up their own minds about whether they work for them. With those comments, I look forward to further debate during the Committee of the Whole stage.

Comments and speeches by various members

Debate adjourned, on motion by Hon Sue Ellery (Leader of the House).


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