Industry backs NSW on safety law reform


Burden of proof reversal ditched but concern raised on right to silence

By Rob McKay | May 9, 2011

Trucking and small business peak bodies have welcomed the New South Wales Government’s pledge to bring the state’s occupational health and safety (OHS) laws into line with the rest of the country.

Introduced into Parliament by Deputy Premier Andrew Stoner last week in two Bills - the Work Health and Safety Bill 2011 and the Occupational Health and Safety Amendment Bill 2011 - the effect of the reform will be to abolish the reversal of the burden of proof on those in charge of a workplace where an workplace incident has occurred.

Once passed, the term "so far as is reasonably practicable" related to the general duties under the Act will be included.

This means the prosecution will be required "to prove what was reasonably practicable" and "the need for the defendant to establish that it was not reasonably practicable to comply with the duty" will be removed.

Also "a duty will be placed on officers of a corporation to exercise due diligence to ensure that the corporation complies with health, safety and welfare duties (with this duty to replace the existing provision that deems directors and managers of a corporation to be guilty of offences committed by the corporation", explanatory notes say.

Moreover, the right of unions to bring proceedings for an offence under the Act will end.

Hugh McMaster, Secretary/Treasurer Australian Road Transport Industrial Organisation NSW Branch, says the fact that the reform was introduced so early in the political cycle showed how important it was.

In a message to members, he says: "Provisions under this Bill are also intended to shift to the mainstream criminal courts responsibility for the enforcement of breaches of work health and safety laws.

"Currently, the more serious OHS breaches are dealt with by the Industrial Court. Under the Bill, the most serious offences will be dealt with in the Supreme Court.

"Other offences will be dealt with by summary proceedings in either the District Court or Local Court.

"These changes will better integrate breaches of work health and safety legislation with the general criminal law and provide clear avenues of appeal."

Independent Contractors of Australia (ICA) Executive Director Ken Phillips also welcomed the reform but says the Federal OHS model laws raise another issue of concern.

"The proposed laws remove your right to silence and your protection from self-incrimination," Phillips says in an ICA newsletter.

"These are fundamental principles protecting justice and the rule of law for us all. NSW has suffered laws that destroyed justice and many people were harmed.

"This is now being fixed. But it seems that damage to other aspects of justice is likely to be introduced nationally."

The ICA points to the following section.

172 - Abrogation of privilege against self-incrimination

1. A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

2. However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

The ICA has two legal opinions highly critical of that aspect.

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