The logic of safety penalties and prosecutions

Recently, the Victorian Government made some noise about increasing  penalties for breaches of health and safety legislation, with maximum fines increasing to $3M. This is consistent with most jurisdiction in Australia, and the drive for significant personal and corporate penalties for breaches of health and safety legislation has always been a feature of the safety industry in Australia.

Recently I wrote about the value of safety prosecutions ($450,000 is this what we want from safety prosecutions), and argued for an alternative model:

What if, rather than prosecutions, organisations who have had accidents could opt in to a safety learning program. In this case, for example, a detailed investigation and research project to understand all of the factors influencing the incident. Not just the role of the employers and workers, but also the regulator, the way safety information is made available and the best ways to help small and medium sized businesses implement a safety program.

  • The project would be paid for by the employer – so there is still a financial penalty.
  • Both the incident and the research could be highly publicised to add to the deterrent value.
  • Valuable lessons would be available within months, as opposed to meaningless factual statements after years.

Prosecutions can, and should still be reserved for the worst classes of offence but these would be very limited. [my emphasis added]

It has been reported by the ABC today (9 July 2016) that a Queensland electrical contractor has been charged with manslaughter following a fatality at a building site.

Leaving aside the merits of the individual case, this action does beg the question, why all the fuss about penalties in health and safety legislation if they are not used for the most serious offences? What does it say about health and safety legislation as an avenue for legitimate criminal prosecutions?

More importantly, would health and safety legislation be a better tool for improving health and safety in workplaces if it was not based on prosecution and fear, but had legitimate mechanisms for the promotion and sharing of lessons about workplace safety?

Is there an argument that says health and safety legislation should focus on workplace health and safety, and it should be left to the criminal law processes to deal with serious failures of workplace safety? Alternatively, if health and safety legislation is an appropriate tool to punish individuals and organisations, shouldn’t it be used when the opportunity arises?

If not, then what was all that harmonisation fear mongering about?




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