SOUTH AUSTRALIA]

No. 58

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

THURSDAY  2  JUNE  2005

 

 

 

   1.

Council met pursuant to adjournment.  The President (The Hon. R. R. Roberts) took the Chair.

                 The President read prayers.

 

Meeting of
Council.

 

   2.

The Minister for Industry and Trade (The Hon. P. Holloway), without notice, moved - That the Standing Orders be so far suspended as to enable Petitions, the Tabling of Papers and Question Time to be taken into consideration at fifteen minutes past two o’clock.

                 Question put and passed, without a dissentient voice, there being present an absolute majority of the whole number of Members of the Council.

 

Suspension
of Standing
Orders.

 

   3.

Ordered - That Order of the Day (Government Business) No. 1 be an Order of the Day for next day of sitting.

 

Postponement
of Business.

 

   4.

Ordered - That Orders of the Day (Government Business) No. 2 to No. 5 be postponed and taken into consideration after Order of the Day (Government Business) No. 6.

 

Postponement
of Business.

 

   5.

On the Order of the Day being read for the adjourned debate on the question - That Supply Bill be now read a second time:

                 Debate resumed.

                 Question put and passed.

                 Bill read a second time.

                 The President then left the Chair, and the Council resolved itself into a Committee of the Whole for the consideration of the Bill.

 

In the Committee

 

                          Clauses No. 1 to No. 3 agreed to.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same without amendment; whereupon the Council adopted such report.

                 The Minister for Industry and Trade, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

Supply Bill.

 

   6.

Ordered - That Orders of the Day (Government Business) No. 2 to No. 5 and No. 7 to No. 11 be postponed and taken into consideration after Order of the Day (Government Business) No. 12.

 

Postponement
of Business.

 

   7.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Motor Vehicles (Double Demerit Points) Amendment Bill.

 

In the Committee

 

                                   Clause No. 1 further considered.

Motor Vehicles
(Double Demerit
Points)
Amendment Bill.

 

 

 

                          The Minister for Industry and Trade, by leave, tabled a copy of a document prepared for the meeting of the Road Safety Advisory Council held on 15 May 2005, concerning Double Demerit Points.

                                   Clause No. 1 agreed to.

                                   Clauses No. 2 to No. 4 agreed to.

                                   Title agreed to.

____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same without amendment; whereupon the Council adopted such report.

                 The Minister for Industry and Trade, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 The Minister for Industry and Trade then moved - That this Bill be now read a third time.         Question put.

Document Tabled.

 

 

             Council divided:

Ayes, 6

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. K. Sneath

The Hon. C. Zollo

The Hon. N. Xenophon

The Hon. P. Holloway (Teller)

 

 

 

 

 

      So it passed in the negative.

 

 

Noes, 11

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. J. F. Stefani

The Hon. C. V. Schaefer (Teller)

 

 

   8.

Ordered - That Orders of the Day (Government Business) No. 2 and No. 3 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

   9.

Ordered - That Orders of the Day (Government Business) No. 4, No. 5 and No. 7 to No. 9 be postponed and taken into consideration after Order of the Day (Government Business) No. 10.

 

Postponement
of Business.

 

10.

On the Order of the Day being read for the adjourned debate on the question - That the Education (Extension) Amendment Bill be now read a second time:

                 Debate resumed.

                 Question put and passed.

                 Bill read a second time.

                 Ordered - That the Bill’s consideration in Committee be postponed and taken into consideration on motion.

 

Education
(Extension)
Amendment Bill.

 

11.

At ten minutes to one o’clock the sitting was suspended until the ringing of the bells.

                 At fifteen minutes past two o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

 

12.

The Clerk announced that the following Petition had been lodged for presentation:

                 By the Hon. S. M. Kanck from 19 residents of South Australia concerning abortions in South Australia.  The Petitioners pray that this Honourable House will do all in its power to ensure that abortions in South Australia continue to be safe, affordable, accessible and legal.

 

Petition:
No. 24 - Abortions
in South Australia.

 

 

  13.

The following Paper was laid upon the Table, viz.:

        By the Minister for Industry and Trade on behalf of the Minister for Aboriginal Affairs and Reconciliation (The Hon. T. G. Roberts) -

                 Save the Murray Fund - Report, 2003-2004.

 

Paper.

 

14.

The Minister for Industry and Trade tabled a copy of a Ministerial Statement made by the Attorney-General (The Hon. M. J. Atkinson, M.P.) concerning the Director of Public Prosecutions.

 

Ministerial
Statement Tabled.

 

15.

The Minister for Industry and Trade, without notice, moved - That the Standing Orders be so far suspended as to enable Question Time to be extended to enable the Hon. N.  Xenophon to complete his question to him and for the Minister to complete his reply.

                 Question put and passed, without a dissentient voice, there being present an absolute majority of the whole number of Members of the Council.

 

Suspension of
Standing  Orders.

 

16.

The Minister for Industry and Trade tabled a copy of a Ministerial Statement made by the Attorney-General concerning the Kapunda Road Royal Commission.

 

Ministerial
Statement Tabled.

 

17.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Education (Extension) Amendment Bill.

 

In the Committee

 

                                   Clauses No. 1 and No. 2 agreed to.

                                   Clause No. 3 read.

                          The Hon. R. I. Lucas moved on page 2, line 11, to leave out “1 September 2006” and insert “1 December 2005”.

                          Question - That the amendment be agreed to - put.

Education (Extension)) Amendment Bill.

 

 

 

             Committee divided:

Ayes, 13

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. J.M.A. Lensink

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. R. I. Lucas (Teller)

      So it was resolved in the affirmative.

 

Noes, 4

The Hon. G. E. Gago

The Hon. P. Holloway

The Hon. R. K. Sneath

The Hon. C. Zollo (Teller)

 

 

 

                                   Clause No. 3 as amended, agreed to.

                                   Title agreed to.

____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same with an amendment; whereupon the Council adopted such report.

                 The Minister for Emergency Services, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

 

 

18.

Ordered - That Order of the Day (Government Business) No. 4 be postponed and taken into consideration after Order of the Day (Government Business) No. 5.

 

Postponement
of Business.

 

19.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Chiropractic and Osteopathy Practice Bill.

 

In the Committee

 

                                   Clause No. 25 further considered, amended and agreed to.

                                   Clauses No. 26 to No. 76 agreed to.

                                   Schedule 1 agreed to.

                                   Schedule 2 agreed to.

                                   Title agreed to.

____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same with an amendment; whereupon the Council adopted such report.

                 The Minister for Emergency Services, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

Chiropractic and
Osteopathy
Practice Bill.

 

 

20.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Occupational Health, Safety and Welfare (SafeWork SA) Amendment Bill.

 

In the Committee

 

                          The Hon. N. Xenophon moved on page 22, after line 5, to insert new clause as follows:

24A—Amendment of section 59—Aggravated offence

Section 59(1)(a) and (b)—delete paragraphs (a) and (b) and substitute:

      (a)       knowing that the contravention was likely to endanger seriously the health or safety of another; or

      (b)      being recklessly indifferent as to whether the health or safety of another was so endangered,”.

                          Question - That new clause No. 24A as proposed to be inserted by the Hon. N. Xenophon, be so inserted - put and negatived.

                          The Hon. N. Xenophon moved on page 22, after line 5, to insert new clause as follows:

24B—Insertion of section 59A

After section 59 insert:

59A—Industrial manslaughter

      (1)       An employer commits an offence if—

      (a)       an employee of the employer—

       (i)       dies in the course of employment by the employer; or

      (ii)       is injured in the course of employment by the employer and later dies; and

      (b)      the employer's conduct causes the circumstances leading to the death or injury; and

      (c)       the employer is—

       (i)       recklessly indifferent about seriously endangering the health or safety of the employee, or any other person at work, by the conduct; or

      (ii)       negligent about causing the death of the employee, or any other person at work, by the conduct.

      (2)       A senior officer of an employer commits an offence if—

      (a)       an employee of the employer—

Occupational Health,
Safety and Welfare
(SafeWork SA)
Amendment Bill.

 

 

       (i)       dies in the course of employment by the employer; or

      (ii)       is injured in the course of employment by the employer and later dies; and

      (b)      the senior officer's conduct causes the circumstances leading to the death or injury; and

      (c)       the senior officer is—

       (i)       recklessly indifferent about seriously endangering the health or safety of the employee, or any other person at work, by the conduct; or

      (ii)       negligent about causing the death of the employee, or any other person at work, by the conduct.

      (3)       For the purposes of subsection (1), if an employer is a body corporate—

      (a)       the conduct of a senior officer of the body corporate arising within the actual or apparent scope of his or her employment, or within the actual or apparent scope of his or her authority, may be attributed to the body corporate; and

      (b)      without limiting the operation of paragraph (a), the body corporate—

       (i)       will be taken to be within the ambit of subsection (1)(c)(i) if the body corporate expressly, tacitly or impliedly authorised or permitted reckless indifference about seriously endangering the health or safety of the relevant employee, or any other person at work; and

      (ii)       will be taken to be within the ambit of subsection (1)(c)(ii) if the body corporate's conduct, after aggregating the conduct of any number of its employees, agents and officers, may be viewed as negligent.

      (4)       The means by which an authorisation or permission may be established under subsection (3)(b)(i) include—

      (a)       proving that the governing body of the body corporate intentionally, knowingly or recklessly carried out the conduct that caused the circumstances leading to the relevant death or injury, or expressly, tacitly or impliedly authorised or permitted such conduct; or

      (b)      proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the conduct that caused the circumstances leading to the relevant death or injury; or

      (c)       proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant requirements of this Act.

      (5)       In addition to subsection (3)(b)(ii), negligence may be evidenced by the fact that the circumstances leading to the death or injury of the employee were substantially attributable to—

      (a)       inadequate corporate management, control or supervision of the conduct of 1 or more of the employees, agents or officers of the body corporate; or

      (b)      failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

      (6)       A person who commits an offence against this section is liable upon conviction to a monetary penalty not exceeding $500 000 or imprisonment for a term not exceeding 20 years or both.

      (7)       A person's omission to act will constitute conduct for the purposes of this section if it is an omission to perform a duty or to exercise a reasonable degree of authority to avoid or prevent danger to the life, safety or health of another and the danger arises from—

      (a)       an act or omission of the person; or

      (b)      anything in the person's possession or control; or

      (c)       any undertaking of the person.

 

 

 

      (8)       For the purposes of subsection (7), if, apart from an agreement between a person and someone else, something would have been in the person's control, the agreement will be disregarded and the thing will be taken to be in the person's control.

      (9)       To avoid doubt, both an employer and a senior officer of that employer may be guilty of offences involving the death of a particular employee.

     (10)      In this section—

cause death—a person's conduct causes death or injury if it substantially contributes to the death or injury;

corporate culture, in relation to a body corporate, means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place;

senior officer of an employer means—

      (a)       in relation to a body corporate—an officer of the body corporate; or

      (b)      a person occupying an executive position (however described) in the undertaking of the employer who makes, or takes part in making, decisions affecting all, or a substantial part, of the activities of the employer in the course of the employer's trade or business.”.

                          Question - That new clause No. 24B as proposed to be inserted by the Hon. N. Xenophon, be so inserted - put and negatived.

                                   Clause No. 25 agreed to.

                                   Clause No. 26 read.

                          The Hon. A. J. Redford moved on page 23, after line 3, to insert new subclause as follows:

“(2c)    The Advisory Committee must not recognise or approve a course of training under subsection (2a) unless or until it has consulted with a body that, in the opinion of the Advisory Committee, represents the interests of directors or senior executives within the State.”.

                          Question - That the amendment be agreed to - put and negatived.

                                   Clause No. 26 otherwise amended and agreed to.

                                   Clause No. 27 agreed to.

                                   Clause No. 28 struck out.

                                   Clause No. 29 agreed to.

                                   Clause No. 30 struck out.

                                   Clause No. 31 agreed to.

                                   Clause No. 32 read.

                          The Hon. A. J. Redford moved on page 24, lines 7 to 25, to leave out proposed new section 67B.

                          To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on next day of sitting.

 

 

 

21.

Ordered - That the remaining Orders of the Day (Government Business) be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

22.

Ordered - That the Council, at its rising do adjourn until Monday, 27 June 2005, at fifteen minutes past two o’clock.

 

Next Day
of Sitting.

 

23.

The following Message from the House of Assembly was received and read -

Message No. 77

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith entitled an Act to amend the Recreational Services (Limitation of Liability) Act 2002, to which it desires the concurrence of the Legislative Council.

House of Assembly, 2 June 2005.                                                                                 R. B. SUCH, Speaker.

                 Bill read a first time.

                 The Minister for Industry and Trade then moved - That this Bill be now read a second time.

                 On motion of the Hon. A. J. Redford, the debate was adjourned until next day of sitting.

 

Message from
House of Assembly:
Recreational Services
(Limitation of
Liability)
(Miscellaneous)
Amendment Bill.

 

 

 

Message No. 78

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith entitled an Act to amend the Ambulance Services Act 1992, to which it desires the concurrence of the Legislative Council.

House of Assembly, 2 June 2005.                                                                                 R. B. SUCH, Speaker.

                 Bill read a first time.

                 The Minister for Industry and Trade then moved - That this Bill be now read a second time.

                 On motion of the Hon. A. J. Redford, the debate was adjourned until next day of sitting.

 

Ambulance Services
(S.A. Ambulance
Service Inc.)
Amendment Bill.

 

 

 

Message No. 79

                 MR. PRESIDENT - The House of Assembly has agreed to the amendments made by the Legislative Council in the Physiotherapy Practice Bill, without amendment.

House of Assembly, 2 June 2005.                                                                                 R. B. SUCH, Speaker.

 

Physiotherapy
Practice Bill.

 

 

 

Message No. 80

                 MR. PRESIDENT - The House of Assembly has agreed to the amendment made by the Legislative Council in the Public Sector Management (Chief Executive Accountability) Amendment Bill, without amendment.

House of Assembly, 2 June 2005.                                                                                 R. B. SUCH, Speaker.

 

Public Sector
Management
(Chief Executive
Accountability)
Amendment Bill.

 

 

24.

Council adjourned at six minutes past six o’clock until Monday, 27 June 2005, at fifteen minutes past two o’clock.

 

Adjournment.

 

 

_________________________

 

 

 

 

 

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. I. Gilfillan

The Hon. P. Holloway

The Hon. S. M. Kanck

 

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

 

The Hon. R. K. Sneath

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. C. Zollo

 

 

Member absent on leave - The Hon. T. G. Roberts