Safe Work Australia has appointed, independent reviewer, Ms. Marie Boland, to undertake a review of the model Work Health and Safety (WHS) laws. The purpose of the review is to scrutinize and report on the operation and content of the model WHS laws to ensure they are operating as intended. The first stage of the review process was Safe Work Australia releasing a discussion paper to inform about the public consultation process.
This review is the first to consider all aspects of the model WHS laws since their development and in summary will investigate whether:
- the model WHS laws are operating as intended;
- any areas of the model WHS laws have resulted in unintended consequences;
- the framework of duties is effective at protecting workers and other persons against harm to their health, safety and welfare and can adapt to changes in work organisation and relationships;
- the compliance and enforcement provisions, such as penalties and enforceable undertakings, are effective and sufficient to deter non-compliance with the legislation;
- the consultation, representation and issue resolution provisions are effective and used by duty holders; and workers are protected where they participate in these processes; and
- the model WHS Regulations, model Codes and National Compliance and Enforcement Policy (“NCEP”) adequately support the object of the model WHS Act.
The broad topics outlined above raise for discussion, a number of key matters including the regulator functions, inspectors’ powers and functions, effectiveness of penalties as a deterrent to poor health and safety practices; and the restoration of the reverse onus of proof in proceedings against WHS laws. We explore each of these keys matters in more detail below
Much debate has ensued about how much emphasis the regulator should place on each of its various functions. The primary focus of such debate has been the balancing of the education function with the compliance and enforcement function so as to achieve the objects of the model WHS Act.
Following the 2014 South Australian review of the Work Health and Safety Act (‘WHS Act’) 2012 (SA) and the 2017 Queensland review, two different approaches to the regulator functions were adopted.
In South Australia, a model was introduced whereby the regulator functions were clearly spilt with the education function being provided by officers who were not inspectors, allowing inspectors to focus on compliance and enforcement actions. Whereas in Queensland, it was recommended that the regulator should place more emphasis on ‘hard compliance’ over the provision of education. Given that Ms Boland is the former Executive Director of SafeWork SA and was responsible for the separation of the educational and compliance / enforcement arms of agency, there is arguably a greater prospect of the approach taken by South Australia being adopted.
Inspectors’ Powers and Functions
Inspectors currently have powers to compel organisations and individuals to provided information and documents while at a workplace (for example; s.171) or when not at a workplace (for example; s.155). Both the New South Wales review and Queensland review of their respective WHS Acts made recommendations with respect to these powers and functions of inspectors.
The NSW recommended that the NSW WHS Act be amended to permit the recording of interviews by the regulator without consent, provided notice was given to the interviewee that the interview would be recorded.
The Queensland review suggested that practical issues were raised by the power of inspectors to compel the provision of information and documents while at a workplace (pursuant to s.171) and as such the Queensland WHS Act has been amended so that from 1 July 2018 an inspector can exercise the same power to compel the provision of information and documents while at a workplace and for 30 days after initially having entered the workplace. Thereby negating the current need to physically be at the workplace to exercise that power.
Inspectors have broad ranging powers and functions under the WHS Act and based on the reviews and recommendations that have been undertaken at the state level it is unlikely there will be any contraction of the inspectors powers, if anything, it is likely to be broadened in line with the amendments to the Queensland WHS Act.
Effectiveness of the Penalty Regime
One of the key policy intentions behind the model WHS laws was to align offences and penalties across jurisdictions for organisations and individuals who fail to meet their WHS obligations, the introduction of the three categories of penalties based on the degree of culpability, risk and harm was to give effect to that intention.
While, Queensland introducing the offence of industrial manslaughter into its Work Health and Safety Act, has been seen as a significant divergence in the alignment of offences and penalties, it should also be noted, that even prior to this amendment in Queensland, there has been little consistency in the way in which penalties were applied. Each jurisdiction has different sentencing legislation (e.g. Queensland has the Penalties and Sentences Act 1992) which the Courts must have regard to.
This was evident in Queensland, between approximately February 2014 and 5 May 2016. The Regulator was somewhat hamstrung in making submissions to the Court as to an appropriate penalty as a result of the High Court decision in Barbaro v R (2014) 253 CLR 58. With the amendment of section 15 of the Penalties and Sentences Act 1992 (Qld), which took effect on 5 May 2016, removing that hurdle, the Regulator has sought to establish that consistency with harmonised jurisdictions, as evidence in Williamson v VH & MG Imports Pty Ltd  QDC 56. The District Court of Queensland in that decision noted the harmonised legislation provides consistency in the nationally agreed quantum of penalties and accordingly the sentencing courts ought to “have regard to decisions in harmonised jurisdictions, which will result in “like cases [being] treated in a like manner”. When increasing the penalty imposed on the Defendant by the Magistrate in the first instance, His Honour Dearden DCJ had regard to comparative cases from both Queensland and New South Wales.
This emphasis on obtaining a consistent awareness of the consequences of failing to comply with the harmonised health and safety legislation is further reinforced by the National Compliance and Enforcement Policy, published by Safe Work Australia, which is applicable to Regulators nationwide.
The different penalties and sentencing regimes across the States and Territories encompass a broad range of matters, not solely WHS proceedings. Therefore any recommendations going to the amendment of penalties and sentencing legislation has the potential for far reaching consequences into the criminal law.
In addition to the consistency of the penalties being imposed, specific and general deterrence are an essential feature of an effective penalty regime.
Currently, the model WHS Act does not contain an express prohibition of insurance contracts which cover the cost of WHS penalties and fines. That said, both the South Australian and Queensland reviews have previously included recommendations that the model WHS Act be amended to include provisions expressly prohibiting insurance of that type. The reason being, arguably, a significant penalty has limited effect in deterring offences against the model WHS Act where the ‘full sting’ of the penalty is not felt by the offender.
We have recently seen the Federal Court of Australia address a similar issue (regarding a breach of the Fair Work Act), by specifically prohibiting an employer (the CFMEU) from indemnifying its employees. That matter was appealed to the High Court, where it was held by the Court that, the Federal Court had the power to make an order for personal payment, though that power did not extend to the making of a non-indemnification order.
Based on the public policy considerations with respect to the inconsistent penalties imposed across the harmonised jurisdictions and the potential availability of insurance to cover penalties imposed by courts, recommendations may center around the introduction of a national sentencing guide and an express prohibition of insurance to cover WHS penalties.
Restoration of the Reverse Onus of Proof and Burden of Proof
Prior to the implementation of the model WHS laws, NSW and Queensland both had a reverse onus of proof for offences relating to the duties of care. Practically, that meant that in NSW and Queensland, in a prosecution, the defendant had to prove they had a defence, by doing all that was reasonably practicable in ensuring health and safety. That is to say, the defendant was ‘guilty, until proven innocent’.
Proponents of the return to the reverse onus of proof suggest defendants are best placed to know what steps were taken in specific circumstances and therefore would be best placed to prove on the balance of probabilities, (that is to say they have proved that it was more likely than not) they did all that was reasonably practicable in ensuring health and safety. As it currently stands under the model WHS Act, the prosecution must prove each and every element of an offence beyond reasonable doubt. Imposing the criminal standard of proof, reflects the notion that duty of care offences are criminal offences and therefore it is appropriate that the burden of proof rest with the prosecutors.
It is suggested in the discussion paper material that nationally, over the last ten years there has been an overall decline in the number of legal proceedings with respect to WHS prosecutions. Although raw numbers might suggest there has been a decline in the number of legal proceedings, there is no analysis as to whether all prior legal proceedings would have been pursued, if the burden of proof, to the criminal standard, lay with the prosecution. The restoration of the reverse onus of proof may result in an increase of WHS prosecutions, though would likely result in a decline in the level of investigation into incidents, by Regulators, as there would be a strict breach that the defendant would need to establish a defence to.
Consultation has commenced and submissions called for, by 13 April 2018, please do no hesitate to contact Damian Hegarty or Sarah-Jayne Rayner to discuss the review or proposed submissions.