This speech was delivered on 26/11/2013 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [12.48 p.m.]: I speak to this matter on behalf of The Greens. The Government has been bloody-minded about the amendment moved in Committee. Much of the contribution from the Parliamentary Secretary proceeded on an erroneous basis, the argument being that the amendment moved in Committee would somehow jeopardise the existing prosecutions that are attempted to be saved by the substantive provisions of the bill. That is just nonsense; it is wrong and I assume it accidentally mischaracterises this Chamber’s amendment, which was that all future class 2 prosecutions could proceed in the Industrial Relations Commission in court session. The Greens are on the record as saying that the Industrial Relations Commission in Court Session is the best forum to hear work health and safety prosecution matters. We do not apologise for that. We are very much of the belief that is the best forum and for that reason we wholeheartedly supported the Opposition’s amendment that went to the lower House.
Aside from that is the very real fact that because of the slipshod way the Government has dealt with the transfer of the existing 70 prosecutions that were commenced under the Occupational Health and Safety Act 2000 from the Industrial Relations Commission in Court Session to the District Court—and it did it through a half thought out, half-baked regulation that arguably was ultra vires, that arguably was beyond the regulation-making power given to the Government under the Act—all those 70-odd prosecutions are now at risk of being struck out. All of them have been challenged by the defendants on the basis that the purported transfer was unlawful; that it was outside the regulation-making powers of the bill.
If that argument ultimately succeeds in those 70 cases and a decision is made against the prosecution in the Empire Waste test case, which I understand is listed for decision tomorrow so we are making a very real and timely political decision here—I do not pretend to guess-second, but I know it is a very arguable case that has seen some attraction at first instance—then those 70 prosecutions may fail, 18 of them relating to workplace fatalities. I will read onto the record some of the facts of those cases. The cases include a courier driver who sustained pelvic injuries when he was hit by a van from another courier company, a solar power system installer who was fatally injured when he fell from a two-storey residence whilst installing solar panels, an abattoir worker who was fatally injured when some panels fell from the blast freezer roof, a truck driver who was fatally injured when he was crushed between his truck and the apron of an unmanned forklift, and a labourer who was fatally injured when he was crushed between the bull bar of a truck and some sheets of glass that fell towards him.
These are genuine workplace tragedies. Not only did the workers die, but because of these errors that never should have occurred in the transfer process these families have been waiting for months and years to get some justice by way of prosecutions. In another case a security guard was fatally injured when he was run over by a truck, a mechanic was fatally injured when a split rim tyre exploded while being changed, a truck driver suffered fatal injuries when he fell from the top of his truck while swinging a load, and two winery workers—members might remember this being reported—suffered fatal injuries when an empty wine vat exploded during a welding operation. I am sure many members have received representations about the case of the TAFE student who suffered fatal injuries when she fell from a galloping horse. The Government appears to have the bloody-minded position that if the Opposition amendment is insisted upon by the Committee, the Government will not accept the amended bill; at least, that is what the Minister has told me.
The Hon. Robert Brown: That is the threat.
Mr DAVID SHOEBRIDGE: That is the threat and it is an ugly threat that is being held over this Committee. Either side of this debate can argue that it is playing politics with prosecutions for workplace fatalities and there is probably an argument from both sides that there are politics on both sides of this debate. What we cannot have and what The Greens cannot countenance is that we go into Christmas—we end this year—with the families of those 18 workers not having some legislative protection to ensure that the prosecutions proceed. The Greens fully support the intent of the Opposition’s amendment.
We believe these matters should be heard in the Industrial Relations Court, but what we will not do is stand on that point to get in the way of certainty for these 70 prosecutions and the 18 fatalities. It is a really difficult position for us; I put that on the record. It is only for that reason and because of the bloody-mindedness of the Government reluctantly that we will not support the original amendment. We want to make sure that there is a commitment from the Government that this bill, if it gets through this Chamber without amendment, will be put in place immediately so that the families of the 18 workers get some comfort.