| 374. |
The
status of the Crown, under the Act is not the
same as other organisations. The Crown is comprised
principally of State Government departments
and agencies, which are not usually the legal
employer of the people who work in them. This
can cause difficulties in applying provisions
of the Act that turn upon the employee and employer
relationship and in particular, those provisions
related to enforcement. There are also legal
principles that mean that, as the Act currently
stands, it is not possible to prosecute Government
agencies for breaches of the Act. WorkSafe outlined
the present legal and practical difficulties
associated with undertaking prosecution and
other enforcement action against Government
agencies in its submission.
|
| 375 |
The
application of the Act to the Crown was canvassed
in the 1998 Allanson Review of the Act. Mr Allanson
noted that where, as in the Occupational Safety
and Health Act 1984, there is no explicit legislative
reference on this issue, there is a strong presumption
by Courts against assigning criminal liability
to the Crown. Mr Allanson concluded that, while
the Crown is still bound by provisions of the
Act by virtue of s.4(1), it is effectively exempted
from the criminal consequences of any breach of
the Act. |
| 376. |
S.4(1) of the Act provides,
“This
Act binds the Crown in right of the State
and also, so far as the legislative power
of the State extends, in all its other capacities.”
|
| 377. |
WorkSafe submitted that Government departments
and agencies should be liable for prosecution
under the Act. There is no justifiable reason
for the Crown in the form of Government departments
and agencies to continue to enjoy immunity from
prosecution under the Act. The original justification
for exemptions from liability does not apply to
the kinds of circumstances where executives and
CEOs manage public sector organisations like competitive
businesses. The employees of those organisations
should also be entitled to work in an environment
free from any uncertainty over the application
of the Act. |
| 378.
|
The
recent New South Wales Occupational Safety and
Health Act 2000 addressed this issue comprehensively.
In addition to establishing the legislation as
binding on the Crown, Part 7 Division 3 of this
Act explicitly provides that the Crown may be
prosecuted for an offence against the Act and
associated regulations. The NSW Act also contains
provisions in respect of the responsible agency
in prosecution proceedings, penalties and the
issuing of improvement and prohibition notices
to agencies.. |
| 379. |
The approach of the New South Wales legislation
in unambiguously applying the occupational safety
and health legislation to the public sector
is preferable to alternatives; such as deeming
the agency or its Chief Executive Officer to
be the employer for the purposes of the Act.
These perpetuate the uncertainty of the standing
of Government agencies. It is preferable to
establish a clear legislative basis for the
full application of the Act to Government agencies.
|
| 380. |
Comments generally supported the proposals and
some also submitted that it should extend to the
Ministers of the Crown responsible for portfolios
and therefore, it was assumed, for Departments.
These argued that Ministers are often the driving
force behind Departments and therefore should
face the same responsibilities as would apply
in the private sector. |
| 381. |
While the notion of Ministerial responsibility
under the Westminster system is for the Minister
to be responsible for the Department it would
not be correct to assign the daily administrative
responsibility for a Department to the Minister
concerned. If that occurred the corollary would
be for Ministers to take the place of the Department’s
Chief Executive Officer for the day-to-day running
of the Department. That does not occur under the
Westminster system even though the relevant Minister
might well have considerable influence over the
Department. The Chief Executive Officer is paid
for and carries the responsibility for the day
to day running of a Department and also responsibility
for the occupational safety and health of the
employees. To make the Minister responsible would
dramatically alter the nature of the responsibilities
of each and cannot be supported because of the
implications of political interference in the
operations of the public service. Ministers are
accountable to the Parliament and in that sense
ultimately accountable to the community. |
