O'Connor Damien: Health and Safety Reform Bill — In CommitteeText is incorporated into the Bound VolumeO'Connor Damien: Health and Safety Reform Bill — In Committee[Sitting date: 25 August 2015. Volume:708;Page:6096. Text is incorporated into the Bound Volume.]Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): I did not want to cut across my colleague. This is a very important part of the legislation. I have just read an article online that talked of a case currently before the courts where the owner of a forestry logging company is subject to prosecution—The CHAIRPERSON (Hon Trevor Mallard): The member is going to take care is he not?Hon DAMIEN O’CONNOR: Absolutely—no I will not go into the details. I think the principle is that the person involved thinks that they may be being set up as perhaps an example by a Government that has a new focus on health and safety. The point is that whatever we do in legislation and whatever we change here the one thing that Kiwis want is fairness. So the devil is in the detail and I know that people listening and watching may think that we are being pedantic about words and interpretations of words but the fact is that we are trying to pass a piece of legislation that will provide not only safety and protection for all workers but also fairness for all employers. I think that that is equally the objective of the Labour Opposition as it is of the Government.Fairness and equity are important. When it comes to the issue of enforcement and other matters and I am sure that it will be an issue that will be in a court of law the question is whether the person before the court is getting a fair go or has as has been pointed out in this debate the decision to prosecute which seems to be a somewhat subjective one given recent history—that is the department decided that it could not proceed yet the private prosecution by the New Zealand Council of Trade Unions proved not only that it could have done that but also that it could have done so successfully.I come back to Part 4 which is about enforcement and other matters. I would just like to go to a part of the bill that did kind of strike a few chords with me and that is the limitation period for prosecutions. Some may see it as the “get out of jail free” clause. For the families of Pike River miners this is a particularly pertinent area where delays in the process have effectively rendered their inquiry—or their desperation I guess for some justice—null and void because the mine manager is unlikely to be taken to court at all.As pointed out by my colleague Iain Lees-Galloway limitation periods are really important. It is not only with big terrible tragic disasters like Pike River but also with other complex cases of accidents and perhaps deaths in the workplace that there will sometimes be quite a period of investigation. This bill does say “6 months after the date on which a coroner completes and signs a certificate of findings” so there is some acceptance here that there must be some conclusion. If you look at a majordisaster you have I guess a recovery period—a royal commission in the case of Pike River—and then there are decisions by Government agencies or police about whether to prosecute. I think that Supplementary Order Paper 101 put forward by my colleague is indeed a very necessary one so that at the point of decision by a Government agency it does not effectively eliminate the right for private prosecutions to occur. As we have seen with the involvement of the New Zealand Council of Trade Unions those prosecutions can be quite successful.It is not that New Zealanders want utu or revenge but we must ensure that there is a fair process of justice all through this health and safety legislation as I say to ensure that firstly we get proper protection for the workers because that is our first and foremost objective and then should an accident occur if indeed the employer or the person conducting a business or undertaking—or the “BOSS” as my colleague Kelvin Davis says—has done all that they can they are not unjustifiably taken through the courts and prosecuted. At the same time anyone who does not do what they should do should rightfully be subject to the full force of the law and all of the provisions that are laid down in this legislation.If I may ask just going to new clause 178 here—[Bell rung]The CHAIRPERSON (Hon Trevor Mallard): Damien O’Connor with a warning to keep the focus tight on Part 4.Hon DAMIEN O’CONNOR: I appreciate that Mr Chairperson. I know they are technical but they are far-reaching clauses—The CHAIRPERSON (Hon Trevor Mallard): Yes I understand that. The member has done better than some of his predecessors.Hon DAMIEN O’CONNOR: This clause is titled “State of mind of directors employees or agents attributed”. Although I was not part of the Transport and Industrial Relations Committee—I imagine that there are some explanations and that maybe the Minister in the chair Craig Foss can explain these things—it is a little bit confusing here because it says: “in any civil proceedings under this Act”. It goes on to say: “it is necessary to establish the state of mind of that individual it is sufficient to show that an employee or agent of the individual acting within the scope of his her or its actual or apparent authority”. It then goes on to say: “In this section state of mind in relation to a person includes the knowledge intention opinion belief or purpose of the person and the person’s reasons for that intention”.In summary—and I am not trying to be flippant—this is quite a subjective clause in my view and clarification will be needed to ensure that when applying it any agency that is implementing the law does so in a fair and unbiased way. I am not sure whether this applies directly to a situation on a farm but if you are looking at states of mind I can assure you that farmers—particularly dairy farmers—who in the middle of spring are facing the dilemmas that they are at the moment will not be in what we may otherwise say is a balanced and sound state of mind. They are under pressure. They are under huge pressure and I am not sure who is going to be the judge of whether they are in a sound state of mind when making decisions regarding workplace safety. It comes right back to a question that I asked and again I am not being flippant that in the case of farms—high risk low risk or whatever—does state of mind and the definition as laid down in new clause 178(3) leave the door open for subjective and I guess variable interpretations which may mean that some farmers are going to get prosecuted or be subject to prosecution and others are not depending on how stressed they are.The absence of any workplace representative in a farm environment because of the Government’s changes may make huge changes and differences to that application there. I am assuming that if you have someone in a workplace who is an employee who has been delegated or appointed—or indeed has been elected—as the workplace health and safety representative as an employee they will probably have less stress than the business owner. In the case of a farmer as I said at this time they will be very very stressed. So the issue of how someone—a court of law or ultimately a judge—determines “state of mind in relation to a person [including] the knowledge intention opinion belief or purpose of the person and the person’s reasons for that intention opinion belief or purpose.” is quite confusing when read out like that but it is a clause in this bill that needs clarification.Can I just go back to say that we believe as I say that every clause in this part of the bill needs to be clear in order to protect employers and the protections for the employees are through other provisions of the bill that ensure representation and that ensure the right classification. So those aside this is about a fair go for employers. There will be people out there who think that the Opposition is seeking to protect only the employees. That is not the case. We have to have fair effective implementable and reasonable workplace health and safety here but it must be effective. My reading of this clause is that that does leave the door open for what is a very subjective question which the Minister can answer of state of mind and of who the person is who is going to be assessing that. Is it indeed a psychiatrist or will it just be the implementing officer or the enforcement officer—or indeed will it be the employee?