Most people think that if they did something that led to the injury or death of a person and they were charged by the police with the prospect of going to jail, that normal criminal justice processes would apply, but this is not the case in NSW.
In 2000, the Carr government introduced laws that stripped away full rights to normal justice and they now want to go further.
Most states are reviewing their workplace safety legislation with unions pushing NSW as the model. The ACT has already introduced industrial manslaughter laws.
Under the existing NSW arrangements if there is an accident at a worksite managers or executives of firms are charged in the industrial court and they are presumed guilty until proved otherwise. Incredibly, they have to prove they are innocent. They can be charged with the same offence a second time even if found innocent at a first trial. If found guilty, and another accident occurs several years later, they can face the prospect of jail.
In October the Carr government introduced an amendment, the Workplace Fatalities Bill, which would mean that if a death occurs on a worksite, jail is an immediate prospect. Rights of appeal to the criminal justice system are restricted.
The Carr government says this is to catch "rogue employers", but the experience of litigation under the present law suggests something else.
Recently a mine manager, former mine manager and a surveyor were all found guilty following the deaths of four men at an underground coal mine several years ago.
In 1996 the Gretley mine near Newcastle in NSW was flooded. The miners drowned when they accidentally drilled into a disused, water-filled mine shaft. The accident happened after a government department supplied the company with old mine maps photocopied in reverse, leading to the drilling being done in the wrong place.
If the proposed amended legislation had been in place, those "guilty" Gretley managers would presumably now be in jail. Not surprisingly, some managers of mines in NSW are now resigning. No one wants to be in a decision-making position.
Apparently the task of proving your innocence is so high that a guilty verdict is almost inevitable. If key safety managers leave, safety systems in mines will break down and mines will have to close.
And it's not just mines that are affected. The present and proposed laws are unclear and badly need clarification. Nonetheless incarceration remains a prospect for owners and managers of large and small businesses in NSW, for ordinary workers, union officials and people in charitable and volunteer organisations. If it can be argued that you control or influence supervision of a worksite, whatever that might mean, you face the prospect of jail without a normal criminal trial.
Presumption of innocence and trial by jury in courts that are experienced and competent in criminal matters are key pillars of a fair, just and equitable society. If you drive a car, have a tyre blow out, swerve and kill a pedestrian you could be charged with a criminal offence and face jail.
But you would be tried in a criminal court. You would be presumed to be innocent. The prosecution would have to prove that you behaved recklessly or dangerously and that you should have known that your behaviour was dangerous. If it was a genuine accident, you were not speeding and your behaviour demonstrated intent to drive safely, the tragic accident should not result in you being jailed.
But with the present and proposed NSW work safety laws, the fact the accident occurred causes guilt to be applied to you. You would have to hire engineers to examine the tyres to prove they were safe. Whether you were reckless or drove as safely as you could, would not be relevant. And you would be tried in the Industrial Relations Commission.
This approach to jailing people without the normal protections of criminal justice has come following pressure from the union movement. It seems to be an approach to law based on an eye for an eye rather than community principles of justice.
The Victorian government last week released new workplace safety law but has not followed the NSW justice-destruction model.
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