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Mr MIKE BAIRD (Manly) [4.34 p.m.]: We understand and support the tenets of the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 but the bill raises a general question about occupational health and safety and the way it has been dealt with in this State. We certainly understand the object of the bill, which is to clarify the definition of "authorised representative" in relation to the Occupational Health and Safety Act 2000. For many years officials and employees of trade unions have entered workplaces to carry out health and safety inspections. However, a recent Federal Court case applied the strict interpretation of that law that only officers of the union, and not employees, had right of entry. The bill in essence restores the previously accepted position. It also maintains consistency with the Federal occupational health and safety laws and what importantly has been endorsed by a recent national review and the Workplace Relations Ministerial Council.
However, there is an overriding concern because the reform of the occupational health and safety system has been on the agenda in this State for a number of years. Upholding safety in the workplace is imperative and indeed the recent work in relation to the national system is moving towards that. However, businesses in this State have been unfairly punished by a draconian occupational health and safety regime that has put them at a disadvantage in relation to their competitors and made New South Wales a very difficult place to do business. It is worth putting on the record some of the features of the New South Wales system and encouraging the Minister to add to the reform contained in the bill the reforms proposed by none other than the Government. I will refer to the report that has been mentioned.
A draft national bill is expected to be approved by a ministerial council later this month. All States except Western Australia have agreed that there is a case for a national system. This will slash red tape for businesses and allow them to be more productive. At the same time it will ensure a critical balance so that workplaces are made safe. I point out there are some distinctive features in the New South Wales system that put it very out of step with Victoria, which probably has the best legislation. In New South Wales, unions have the power to prosecute. This is contrary to the widely observed principle of criminal law that a prosecutor must be independent, unbiased and free of any conflicts of interest. Only New South Wales and the Australian Capital Territory have that provision in their Acts. The Victorian Maxwell review of 2003 strongly recommended against anyone other than the relevant authority having the right to prosecute. It said, "The prosecution of persons for criminal offences is a matter of the utmost seriousness. It is in my view properly the exclusive function of the State and should be performed by a State agency, whether a Crown prosecutor subject to the DPP or a prosecuting authority."
New South Wales is the only jurisdiction where moieties apply. Under this system, unions can keep half the fines from successful prosecutions they initiate. I have referred to the conflict in unions prosecuting cases. Not only do they prosecute cases, but they receive half of any fines that are imposed. That sort of conflict goes against the essence of what we are trying to do. It goes well beyond a desire to keep workplaces safe. It becomes a fee-generating exercise for vested interests. It goes against the very essence of what this legislation should be about.
New South Wales and Queensland are the only jurisdictions in which industrial courts—the Industrial Relations Commission—try occupational health and safety matters. They are also the only jurisdictions in which there are no rights of appeal beyond this forum. It is worth noting that having no right of appeal runs counter to the principles of democracy. No-one, other than the two jurisdictions I have mentioned, has this provision. Also, in New South Wales, and again in Queensland, the normal onus of proof provision in criminal matters is reversed. The New South Wales Government recently indicated it would consider removing the reverse onus provision from prosecutions against individuals but retain it for corporations. Again, the required reform is not being carried out.
It has been well stated that the occupational health and safety legislation is putting a huge burden on business and is making New South Wales uncompetitive. It is making day-to-day business activity very difficult. This is not about safety; every business one talks to is concerned about safety. It is about a regime that oversees legislation that is not about safety but about other matters.
The Government has said it understands that the system should be fixed. The New South Wales Government released a report on the Occupational Health and Safety Act 2000 in 2006. That is what the Iemma Government said at that stage. In May 2006 the New South Wales Government released a draft Occupational Health and Safety Amendment Bill, which included the following proposed amendments to: amend the duty on employers of a reasonably practicable test, in line with other jurisdictions; introduce an additional duty on employees to take reasonable care for their own health and safety, when currently their duties extend to only other employees; clarify directors' duties to ensure that an officer of a company will be liable only if they fail to take reasonable care to prevent occupational health and safety risks, rather than simply be concerned with the management of the enterprise; eliminate rights of prosecutorial appeal against acquittals, in line with general criminal law principles; introduce enforceable undertakings by which employees would agree to rectify alleged contraventions, in return for which WorkCover cannot then prosecute for that breach; introduce the ability for WorkCover inspectors to be able to provide written advice on compliance strategies; and eliminate the right of WorkCover to appeal acquittals.
The New South Wales Government ultimately decided not to proceed with any of those reforms. The real question is: Why not? I want the Minister to reply to this question. Why are we not standing up for the reforms that have been identified by the Government's own review, to take some of the onuses and unfairness out of the system and give businesses in this State a level playing field? That is what we are looking to achieve. We have heard that there is a commitment to sign up to a national framework. If that is so, why have we had to wait so long to get to that point—when this report came out in May 2006?
The Government also commissioned a report by retired Judge Paul Stein, which recommended reforms to the Act, including the introduction of a reasonably practical test. This report also has not been acted upon. Whilst we on this side acknowledge that the bill has a very small amendment that makes some sense in the context of the bill overall, we ask very strongly: Why has the Government not acted on some of the reforms that are proposed in its own report? I look forward to hearing what the Government and the Minister have to say in response to the question. Certainly, members on this side of the House strongly urge expedition of an occupational health and safety policy that is directed at a national framework and gives businesses in this State a chance to operate on a level playing field, at the same time ensuring that safety is maintained.
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