Corporate Homicide and Criminal Negligence

Industrial Manslaughter Conference

Today's announcement by the Minister for Industrial Relations Mr della Bosca that the government will amend the Occupational Health and Safety Act to cover industrial manslaughter is welcome.

Congratulations to the broad based community campaign led by the CFMEU, the AMWU and other unions and the Labor Council for winning the Labor government to this position. As we know it has not been easy.

I would like to particuallry thank Sue Barker and McGoldrick and the other relatives of victims of workplace death for their contribution to this campaign.

When more than 10,000 workers blocked Macquarie Street it sent a clear message to the Labor government and to MPs in all parties that it was time we changed the law to help reduce workplace deaths.

The Greens have been very much part of the campaign to improve on the job safety. Our position has been that it would be a stronger deterrent to amend the Crimes Act to cover industrial manslaughter.

As we have heard the Minister has chosen to amend the OH and S Act. Even though it is not our preferred option the Greens will support that move but we will urge the government to amend the legislation. I will come to that later.

I would like to congratulate the Minister for his change of heart on this issue. As part of the Greens campaign in support of industrial manslaughter legislation I have asked Mr della Bosca in the Legislative Council on a number of occasions about the government's response to calls for industrial manslaughter law. The Minister on many occasions said it was not necessary and he has even argued that it will not save lives.

So I am pleased that the Greens and Labor will be able to work together in taking this legislation through the Parliament.

Having said that I do want to put on record why the Greens believe that amending the Occupational Health and Safety Act to introduce industrial manslaughter is not the preferred option.

In essence this law change still minimises the killing of people in workplaces compared with deaths outside a place of work.

The Greens are concerned that under the OH and S Act there will be a two year time limit on manslaughter changes being laid. I understand that this could be extended but only where there has been a coronial inquest. Under the Crimes Act there is no time limitation on prosecuting for murder.

This strict time limit will reduce the usefulness of this law for injured workers and the families of dead workers.

What happens to all those workers dieing of asbestos related diseases. Some are aware of their condition others will find out in days or years that the work they engaged in will kill them.

Many asbestos related diseases take more than 20 years to be detected. So as the breech by James Hardie would have occurred much more than two years ago these workers have no recourse before the amended OH and S Act.

The James Hardie crimes are in the news at the moment. The actions of this company highlight the deficiencies of the law in protecting workers health, well-being and their lives. Retrospective laws could well be the only way to give some belated compensation to workers with asbestos related diseases.

Retrospectivity in the law is rejected by many. I would argue that we need to be flexible and judge each case on its merits.

The way the James Hardie company has worked to avoid paying compensation to dying workers well illustrates the need for retrospective with regard to the industrial manslaughter provision. The James Hardie company directors have been engaged in criminal activities. While we need to fight for full compensation for effected workers the crimes perpetrated should not go unpunished.

As James Hardie company directors knowingly allowed workers to come into contact with asbestos materials after the health impacts were known why shouldn't these people be charged with murder. Considering the first recorded death from asbestos was in 1900 surely they cant be allowed to ignore people's death and suffering.

The state Labor government was willing to bring in retrospective legislation to enable the prosecution of the company involved in the tragic death of four coal miners at Gretley coal mine in1994. The Greens suggest that retrospective laws are again needed.

I urge that the Minister amend the OH and S Act so any time limits on charges of industrial manslaughter commence from the date of death rather than the date of breech by the company.

For the Greens our campaign for industrial manslaughter legislation has been a major part of our work at a federal and state level and insider and outside Parliament.

After the tragic death of Joel Exner many of us saw the need for a Parliamentary inquiry. I worked closely with Andrew Ferguson in drafting the terms of reference for what ended up as the Inquiry into Serious Workplace Injuries and Death.

But because of Labor's opposition to industrial manslaughter at the time it was not easy getting the numbers for this inquiry. We had to get the terms of reference framed in a way that the Liberals would come on board as Labor MPs were not allowed to vote for it.

However, I will pay tribute to my Labor colleagues on the inquiry. Once we got it going they were useful allies and when I came to move the recommendation to amend the crimes act to include a new crime of industrial manslaughter the three Labor MPs were in support and the Liberals voted against it.

The Greens have also been working in the federal parliament to bring forward industrial manslaughter legislation, unfortunately we have again run into a lack of support for Labor.

My colleague Michael Organ the Greens member for the seat of Cunningham on the south coast has introduced Criminal Code Amendment (Workplace Death and Serious Injury) Bill 2004 into the House of Representatives. Michael has been unable to get one other MP to second that Bill. We know that privately a number of Labor MPs do support the intent of this Bill, but publicly they can not give work with the Greens on this critical issue.

Michael's Bill amends the Criminal Code to provide for imprisonment of up to 25 Years for Executives of Corporations that are found to be responsible for the death of an employee, and 10 Years for Executives responsible for the serious injury of an employee.

The bill also provides for fines of up to $5 Million for Executives of Corporations and Corporations themselves that are found to be responsible for the death or serious injury of an employee. I had worked on similar legislation to come before the NSW Parliament.

I would now like to examine the politics of workplace death and injury, as in addressing the issue of industrial manslaughter we are trying to ensure at the end of the day workers are alive and healthy.

Since time immemorial workers have died on the job. By far the majority of those deaths are a result of unsafe work practices. And in the majority of these cases employers allow or encourage unsafe work practices because it saves them money and that means higher profits.

We may be in the 21st century but for many bosses workers are part of their property and any damage to that property is accepted as part of doing business.

Now I am not putting all employers into this category and I think over the centuries more employers have come to recognise their responsibility but I argue that it is essential for us to understand the political forces at play here if we are to have a win in changing the law and most importantly saving lives.

So what is the nature of corporate crime. Corporate crime, often described as white collar crime, is usually thought of in terms of economic swindles rather than physical violence.

That needs to change and we also need to recognise that crimes of the powerful are not only economically more costly to society than the crimes of the underprovided they are more physically injurious and destructive.

Corporate crimes take a greater toll on our society than the actions of all other criminals combined.

That might sound excessive to some but it is drawn from a 1979 US Department of Justice Report into Illegal Corporate Behaviour. In one instance they found that GE Westinghouse Corporation took 2 billion dollars off consumers while 3 billion burglaries in one year cost the pubic $1.2 billion dollars.

I don't have the figures for how many people are murdered by individual criminals compared with corporate criminals but I am willing to bet that more people are killed, physically injured and maimed and have their lives shortened and health wrecked by the corporate criminal in pursuit of so called legitimate business aims than all other criminals combined.

For workers when it comes to the law the dice is loaded in favour of the employer. A worker's duty is to serve the employer faithfully and he or she is bound to obey all lawful orders given. The workplace is the employer's castle.

Workers compensation laws are a case in point. While the achievement of these laws was a great win by and for working people these laws replicate the unequal conditions we live under. An injured workers is never fully paid the extent of what she or he would have earned had he or she not been injured.

In the C19th the assumption or risk rule operated whereby if workers knew of the dangers to themselves at their place of work then they were disqualified from recovering damages for injuries which might result from such hazards of employment.

The 'common employment' doctrine was another rule which prevented a worker who was injured by negligence of a fellow workers from obtaining damages from the employer. This law was repealed after strong trade union lobbying.

In the Parliamentary Inquiry into Serious Workplace Injury and Death this argument was very popular with the Liberal members of the Inquiry. The notion that many workplaces death are a result of negligent workers is still being peddled as a means to exonerate the employer.

Laws that govern workplace relationships have established strict guidelines so incidents which would normally be regarded as homicide or a crime involving grievous bodily harm can quickly be dismissed as negligence.

I believe this is why employers and sadly this state Labor government is fighting so hard to resist criminal law being extended into the workplace. If Mr Della Bosca had agreed to amend the Crimes Act by creating a new offence of industrial manslaughter it would have been a first. And as we can imagine other changes could have followed.

But the changes outlined by the Minister have been kept within civil law, which has considerably more lenient punishments.

For this reason and also as we may well see few cases where this law is used the Greens argue that we should be exploring additional ways to require corporations to eliminate death and injuries from our workplace.

Let's look at how we can hold company directors and shareholders responsible for workers' deaths and injuries.

A now retired barrister who use to be with Lionel Murphy Chambers, Mick Tubbs, has suggested implementing a system whereby shareholders lose a portion of their stock holdings every time a worker dies as a result of criminal neglect.

I think that is interesting. Shareholder pressure is becoming more significant and this could well be a way to have them pressuring CEOs to clean up the workplace.

Shaming company directors is another way to put pressure on to effect corporate cultural change with regard to workplace safety. Courts could be given the power to make ancillary orders against directors. For example directors could be required to take out prominent advertising in national and metropolitan papers identifying themselves by name and photo when workers died and were injured at a workplace they were responsible for.

While the Greens back the need for industrial manslaughter legislation we certainly don't see that as an end in itself. Hopefully the laws will act as a deterrent.

The key is that the corporate world need to recognise and act on its responsibilities to ensure that at the end of the working day its employees are fit and healthy and can return to their families and loved ones.

Past experience shows us that the corporate world needs constant reminding of that responsibility and the Greens will continue to work with unions and community groups to save the lives of working people.

Today's announcement by the Minister for Industrial Relations Mr della Bosca that the government will amend the Occupational Health and Safety Act to cover industrial manslaughter is welcome.

Congratulations to the broad based community campaign led by the CFMEU, the AMWU and other unions and the Labor Council for winning the Labor government to this position. As we know it has not been easy.

I would like to particuallry thank Sue Barker and McGoldrick and the other relatives of victims of workplace death for their contribution to this campaign.

When more than 10,000 workers blocked Macquarie Street it sent a clear message to the Labor government and to MPs in all parties that it was time we changed the law to help reduce workplace deaths.

The Greens have been very much part of the campaign to improve on the job safety. Our position has been that it would be a stronger deterrent to amend the Crimes Act to cover industrial manslaughter.

As we have heard the Minister has chosen to amend the OH and S Act. Even though it is not our preferred option the Greens will support that move but we will urge the government to amend the legislation. I will come to that later.

I would like to congratulate the Minister for his change of heart on this issue. As part of the Greens campaign in support of industrial manslaughter legislation I have asked Mr della Bosca in the Legislative Council on a number of occasions about the government's response to calls for industrial manslaughter law. The Minister on many occasions said it was not necessary and he has even argued that it will not save lives.

So I am pleased that the Greens and Labor will be able to work together in taking this legislation through the Parliament.

Having said that I do want to put on record why the Greens believe that amending the Occupational Health and Safety Act to introduce industrial manslaughter is not the preferred option.

In essence this law change still minimises the killing of people in workplaces compared with deaths outside a place of work.

The Greens are concerned that under the OH and S Act there will be a two year time limit on manslaughter changes being laid. I understand that this could be extended but only where there has been a coronial inquest. Under the Crimes Act there is no time limitation on prosecuting for murder.

This strict time limit will reduce the usefulness of this law for injured workers and the families of dead workers.

What happens to all those workers dieing of asbestos related diseases. Some are aware of their condition others will find out in days or years that the work they engaged in will kill them.

Many asbestos related diseases take more than 20 years to be detected. So as the breech by James Hardie would have occurred much more than two years ago these workers have no recourse before the amended OH and S Act.

The James Hardie crimes are in the news at the moment. The actions of this company highlight the deficiencies of the law in protecting workers health, well-being and their lives. Retrospective laws could well be the only way to give some belated compensation to workers with asbestos related diseases.

Retrospectivity in the law is rejected by many. I would argue that we need to be flexible and judge each case on its merits.

The way the James Hardie company has worked to avoid paying compensation to dying workers well illustrates the need for retrospective with regard to the industrial manslaughter provision. The James Hardie company directors have been engaged in criminal activities. While we need to fight for full compensation for effected workers the crimes perpetrated should not go unpunished.

As James Hardie company directors knowingly allowed workers to come into contact with asbestos materials after the health impacts were known why shouldn't these people be charged with murder. Considering the first recorded death from asbestos was in 1900 surely they cant be allowed to ignore people's death and suffering.

The state Labor government was willing to bring in retrospective legislation to enable the prosecution of the company involved in the tragic death of four coal miners at Gretley coal mine in1994. The Greens suggest that retrospective laws are again needed.

I urge that the Minister amend the OH and S Act so any time limits on charges of industrial manslaughter commence from the date of death rather than the date of breech by the company.

For the Greens our campaign for industrial manslaughter legislation has been a major part of our work at a federal and state level and insider and outside Parliament.

After the tragic death of Joel Exner many of us saw the need for a Parliamentary inquiry. I worked closely with Andrew Ferguson in drafting the terms of reference for what ended up as the Inquiry into Serious Workplace Injuries and Death.

But because of Labor's opposition to industrial manslaughter at the time it was not easy getting the numbers for this inquiry. We had to get the terms of reference framed in a way that the Liberals would come on board as Labor MPs were not allowed to vote for it.

However, I will pay tribute to my Labor colleagues on the inquiry. Once we got it going they were useful allies and when I came to move the recommendation to amend the crimes act to include a new crime of industrial manslaughter the three Labor MPs were in support and the Liberals voted against it.

The Greens have also been working in the federal parliament to bring forward industrial manslaughter legislation, unfortunately we have again run into a lack of support for Labor.

My colleague Michael Organ the Greens member for the seat of Cunningham on the south coast has introduced Criminal Code Amendment (Workplace Death and Serious Injury) Bill 2004 into the House of Representatives. Michael has been unable to get one other MP to second that Bill. We know that privately a number of Labor MPs do support the intent of this Bill, but publicly they can not give work with the Greens on this critical issue.

Michael's Bill amends the Criminal Code to provide for imprisonment of up to 25 Years for Executives of Corporations that are found to be responsible for the death of an employee, and 10 Years for Executives responsible for the serious injury of an employee.

The bill also provides for fines of up to $5 Million for Executives of Corporations and Corporations themselves that are found to be responsible for the death or serious injury of an employee. I had worked on similar legislation to come before the NSW Parliament.

I would now like to examine the politics of workplace death and injury, as in addressing the issue of industrial manslaughter we are trying to ensure at the end of the day workers are alive and healthy.

Since time immemorial workers have died on the job. By far the majority of those deaths are a result of unsafe work practices. And in the majority of these cases employers allow or encourage unsafe work practices because it saves them money and that means higher profits.

We may be in the 21st century but for many bosses workers are part of their property and any damage to that property is accepted as part of doing business.

Now I am not putting all employers into this category and I think over the centuries more employers have come to recognise their responsibility but I argue that it is essential for us to understand the political forces at play here if we are to have a win in changing the law and most importantly saving lives.

So what is the nature of corporate crime. Corporate crime, often described as white collar crime, is usually thought of in terms of economic swindles rather than physical violence.

That needs to change and we also need to recognise that crimes of the powerful are not only economically more costly to society than the crimes of the underprovided they are more physically injurious and destructive.

Corporate crimes take a greater toll on our society than the actions of all other criminals combined.

That might sound excessive to some but it is drawn from a 1979 US Department of Justice Report into Illegal Corporate Behaviour. In one instance they found that GE Westinghouse Corporation took 2 billion dollars off consumers while 3 billion burglaries in one year cost the pubic $1.2 billion dollars.

I don't have the figures for how many people are murdered by individual criminals compared with corporate criminals but I am willing to bet that more people are killed, physically injured and maimed and have their lives shortened and health wrecked by the corporate criminal in pursuit of so called legitimate business aims than all other criminals combined.

For workers when it comes to the law the dice is loaded in favour of the employer. A worker's duty is to serve the employer faithfully and he or she is bound to obey all lawful orders given. The workplace is the employer's castle.

Workers compensation laws are a case in point. While the achievement of these laws was a great win by and for working people these laws replicate the unequal conditions we live under. An injured workers is never fully paid the extent of what she or he would have earned had he or she not been injured.

In the C19th the assumption or risk rule operated whereby if workers knew of the dangers to themselves at their place of work then they were disqualified from recovering damages for injuries which might result from such hazards of employment.

The 'common employment' doctrine was another rule which prevented a worker who was injured by negligence of a fellow workers from obtaining damages from the employer. This law was repealed after strong trade union lobbying.

In the Parliamentary Inquiry into Serious Workplace Injury and Death this argument was very popular with the Liberal members of the Inquiry. The notion that many workplaces death are a result of negligent workers is still being peddled as a means to exonerate the employer.

Laws that govern workplace relationships have established strict guidelines so incidents which would normally be regarded as homicide or a crime involving grievous bodily harm can quickly be dismissed as negligence.

I believe this is why employers and sadly this state Labor government is fighting so hard to resist criminal law being extended into the workplace. If Mr Della Bosca had agreed to amend the Crimes Act by creating a new offence of industrial manslaughter it would have been a first. And as we can imagine other changes could have followed.

But the changes outlined by the Minister have been kept within civil law, which has considerably more lenient punishments.

For this reason and also as we may well see few cases where this law is used the Greens argue that we should be exploring additional ways to require corporations to eliminate death and injuries from our workplace.

Let's look at how we can hold company directors and shareholders responsible for workers' deaths and injuries.

A now retired barrister who use to be with Lionel Murphy Chambers, Mick Tubbs, has suggested implementing a system whereby shareholders lose a portion of their stock holdings every time a worker dies as a result of criminal neglect.

I think that is interesting. Shareholder pressure is becoming more significant and this could well be a way to have them pressuring CEOs to clean up the workplace.

Shaming company directors is another way to put pressure on to effect corporate cultural change with regard to workplace safety. Courts could be given the power to make ancillary orders against directors. For example directors could be required to take out prominent advertising in national and metropolitan papers identifying themselves by name and photo when workers died and were injured at a workplace they were responsible for.

While the Greens back the need for industrial manslaughter legislation we certainly don't see that as an end in itself. Hopefully the laws will act as a deterrent.

The key is that the corporate world need to recognise and act on its responsibilities to ensure that at the end of the working day its employees are fit and healthy and can return to their families and loved ones.

Past experience shows us that the corporate world needs constant reminding of that responsibility and the Greens will continue to work with unions and community groups to save the lives of working people.