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Nationally harmonised work safety laws and the removal of your right to silence

8 May 2011

Independent Contractors Australia supports the proposed national harmonised work safety (Occupational Health and Safety) laws. But we've been alerted to a problem. The proposed laws will remove your right to silence. We've been sent two separate legal assessments and they argue precisely the same points (see below).

Here we provide a summary of what's happening with work safety laws across the country, explain some of the politics, provide links to the proposed laws and the legal assessments on the right to silence.

Links (Current 8 May 2011)

Summary

The basics:
  • Every state, territory and the Commonwealth has different OHS legislation. The laws differ in each jurisdiction.
  • All governments have signed an agreement to 'harmonise' the laws---i.e., make the laws similar. This will bring greater clarity to work safety laws and should ultimately help reduce workplace injuries and deaths.
  • The governments have agreed to a model OHS law. This is to be passed by the federal parliament and each state and territory government.
Where the laws are at in the parliamentary processes (current 8 May):
  • The model laws have been introduced into federal parliament as a Bill but not yet passed. Regulations to accompany the Bill have been drafted but not yet agreed upon.
  • South Australia introduced the same laws as a Bill into its parliament; however the Bill was recently withdrawn without any real explanation.
  • Late last week, New South Wales moved a Bill based on the model laws. No other government has yet introduced a Bill.
The two opposing work safety approaches and the big debate
The debate over the type of work safety laws to be applied has been a hot topic for around a decade in Australia. There are two fundamentally different and opposing approaches, most easily understood by looking at the Victorian and the old NSW laws.
  • The Victorian laws hold everyone involved in work responsible for safety according to what each person can reasonably and practically do. When there's a prosecution, people are protected by the presumption of innocence, trial in normal criminal courts, rights to appeal and so on.
  • The old NSW laws focus on the legally defined 'employer', holding the employer automatically guilty if a work safety incident occurs. That is, presumption of guilt applies to the 'employer' but presumption of innocence to the employee. Prosecutions occur in the Industrial Relations Court, there are no appeals and unions can prosecute and keep half of the fines. (Note: last week the new NSW government moved to repeal these laws.)
  • Western Australia, South Australia, the Commonwealth, the Northern Territory and Tasmania all follow the principles of the Victorian laws but have differences in some operational details.
  • Queensland and the Australian Capital Territory have some elements of the NSW model but mostly follow the Victorian principles.
The politics
The politics of Australia's work safety laws are entirely tied up and complicated by internal disputes inside the Australian Labor Party and the union movement.
  • Australian unions, led by the construction unions, want the old NSW laws to go national.
  • Prime Minister Gillard has defied the unions and pushed the principles of the Victorian model as the national model. (The wording of the Victorian and proposed national laws are different, but the principles are the same).
  • NSW Labor governments repeatedly tried to change their laws, but the NSW unions constantly stopped them. The new Liberal/National government has now moved to change the laws.
  • The construction unions fund and control the Greens who will have the balance of power in the Senate come July 2011. The Greens' formal policy is to have national OHS laws modelled on the old NSW laws. Expect that they will push for this after July. The Gillard government will need the Abbott opposition's support to pass the model laws based on the Victorian principles.
ICA's position
  • ICA strongly supports the Victorian approach to work safety laws. These laws have been in place for close to a decade. They are proving most effective in improving work safety while still ensuring justice. In fact we believe that ensuring justice helps work safety.
  • ICA completely rejects the old NSW laws. We believe they harm safety efforts because they harm justice. Many people have suffered in NSW under these laws.
  • ICA supports the model harmonised OHS laws currently before federal parliament, but we now have a big 'but'. We oppose the removal of the right to silence.
Removal of the right to silence
We've been alerted to provisions in the model OHS laws that remove the right to silence. It seems that few people are aware of this---including most politicians. It's something that seems to have been 'snuck in'.
  • The right to silence ensures that if you are being questioned by an investigator (police or other) you do not have to answer the questions if you think this could incriminate you. This is a fundamental right that protects us all from potential abuse by investigating authorities.
  • The right to silence is only overridden under strict supervision from a court where you are allowed to have a lawyer with you and so on. The two legal analyses we have received explain this. Analysis 1; Analysis 2.
  • The model OHS laws remove your right to silence.
The common clause in all the Bills reads:

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.