Although it appears that OHS regulators across Australia have taken a more robust approach to enforcement in the past three decades, work health and safety offences have in fact been rarely prosecuted, according to an academic expert.
Despite much debate in Australia about improving enforcement of the work health and safety statutes, recognising serious OHS incidents as criminal offences has barely been addressed, said Richard Johnstone, a Professor in the Law School at Griffith University and an Adjunct Professor at The Australian National University.
While the maximum financial penalties for work health and safety offences have increased dramatically since the 1980s and in some cases fines imposed by courts have been substantial, Johnstone noted that there has been little real progress in the criminalisation of such offences.
“Despite the rhetoric of stronger enforcement and more robust prosecution, the dominant ideology of work health and safety enforcement ─ ambivalence about whether work health and safety offences are ‘really criminal’ and viewing prosecution as a ‘last resort’ in the enforcement armoury ─ still dominates the approach of Australian work health and safety regulators,” said Johnstone in his recent paper, Decriminalisation of Health and Safety at Work in Australia.
Regulators have developed a flexible array of sanctions that ‘work’ in the sense of improving compliance, such as infringement notices and enforceable undertakings, but Johnstone said little has been done to address the perception that work health and safety offences are not “really criminal”.
In the paper, published by The Australian National University’s National Research Centre for OHS Regulation, Johnstone also observed that some governments have flirted with reforms to corporate manslaughter, but only the Australian Capital Territory has implemented corporate manslaughter reforms.
“Most of the other work health and safety statutes have introduced new offences with higher fines for offences exposing workers to the risk of serious illness, injury or death, and/or where the offences involved gross negligence or recklessness,” he said.
“In many senses, the most significant development has been the recasting of the provisions creating offences for corporate officers. The question, of course, is: to what extent do these developments reverse the public perception that work health and safety offences are not ‘really criminal’?”
Johnstone said the answer to this question is “not much, if at all”.