164. Supplementary memorandum
submitted by Disaster Action
We are writing to thank the committee for the
opportunity to give oral evidence yesterday, and also to take
further a number of key issues where we believe some clarity is
required.
As a point of principle, we wish to stress that
Disaster Action is an organisation that has no political brief.
Likewise, we have no agenda other than to seek appropriate redress,
through law, where corporate conduct has led to death in a disaster.
This not about scapegoating individuals, nor revenge.
In the light of Mr Dunne's declaration of interest
as a company director, we wish to point out that a number of our
members are also company directors. Finding themselves on the
receiving end of a disaster, they were scandalised not only by
a corporate culture that appeared to take little account of the
sanctity of human life, but also by a criminal justice system
that offered them no hope of redress. In addition, those members
whose professional careers were spent in the nuclear and oil industries,
for example, were shocked to discover the scant regard for safe
systems even in businesses engaged in other high-risk activities.
We would also like to clarify our position in
terms of the person or persons who might be construed as the company
for the purposes of causing the death.
The previous proposed Bill stated that the death
should have been caused by a "management failure". This
we supported. The present proposal seeks to identify a senior
manager or senior managers—and nothing else. We feel that
this is an unworkable return to the "directing mind"
requirement, which is the fundamental problem of the current law,
and it represents a disappointing and retrograde step. For this
reason we felt the current Bill should contain—if "management
failure" is to be discarded—as an alternative possible
cause, the existence of a corporate culture, which caused the
death. This is precisely what the Australian Criminal Code does,
with a number of provisos, of course (for the committee's reference,
please see the attached).
We are of the view that the nature of the corporate
culture, defined in the code, may not be so difficult to establish,
identifying, for example:
1. levels of supervision;
2. corporate goals as communicated to management
and employees;
3. training and monitoring;
4. how the corporation has reacted to past
health and safety infringements or "near misses". This
is particularly important in our view: every company we have been
involved with had mostly ignored explicit warnings, investigations,
reports and recommendations before the disaster occurred;
5. explicit guidelines issued by senior management;
and
6. institutional practices—for example,
looking at what was routinely tolerated.
We hope that these additional comments will
be of value to the committee in the preparation of their report,
which we look forward to seeing.
In relation to the specific disasters that we
represent, new, workable law will come too late. For those who
will otherwise inevitably follow in our wake, it may represent
the difference between life and death. Where a disaster occurs
in circumstances whereby a company has sought to understand and
minimise the risks attendant on their activities, such a company
should have nothing to fear from the law.
October 2005
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