The community was rightly outraged by the tragic loss of life in incidents at Dreamworld and Eagle Farm. The recent legislative response to those tragedies has attracted significant media attention, with laws recently rushed through Queensland parliament, introducing new offences into the Work Health and Safety Act 2011 (Qld), the Electrical Safety Act 2002 (Qld) and the Recreational Water Activities Act 2011 (Qld), from 23 October 2017.
Much of the focus in the legal media and beyond has been on the headline grabbing figures of penalties of up to AUD$10m for body corporates and 20 years imprisonment for individuals – making these the toughest workplace penalties in Australia at the moment. The new offences respond to the sense of outrage, but with the attention on the penalties, there has been little pause to ask:
Are these laws an appropriate response to the tragedies?
To coin the phrase often used by lawyers, “the jury is still out”.
Looking at the introduction of the industrial manslaughter offences in the Work Health and Safety Act, we make the following observations:
- The Act has the primary objective of protecting workers and other persons against harm to their health and safety.
- The Act already provided for terms of imprisonment for the most serious types of offending.
- It is not clear how the recent introduction of longer terms of imprisonment and higher penalties will help regulators prevent injury, illness and death as correctly highlighted by the Bar Association of Queensland, there has only been one prosecution of a category 1 offence (the most serious offence under the WHS Act) in Queensland so far.
- There is no real evidence that the existing laws were ”inadequate”. We are not suggesting that a tragic loss of life in a workplace should not result in a detailed examination of the circumstances and, where there is evidence of serious offending by a duty holder, regulators ought to take enforcement action. The query is whether regulators in Queensland were unable to adequately do so prior to 23 October 2017.
Will the new offences have unintended consequences?
One serious concern amongst businesses, their workers, key stakeholders and others ought to be whether the introduction of longer terms of imprisonment and higher penalties and threats of greater enforcement will encourage business and industries to learn from failure in an open and transparent way.
The prospect of very severe (and, in particular, personal) penalties, will be an impediment to sharing valuable safety learnings in industries, at least until the legal processes have run their course. This can take up to five years in some circumstances. Will valuable lessons be lost?
This can only be detrimental to health and safety outcomes – the very opposite of what the laws seek to achieve.
We all want healthy and safe workplaces and appropriate responses to serious offending, but this should not be at the expense of an environment that encourages learning and sharing. We hope that the approach taken to the enforcement of the new offences does not create a new form of outrage caused by business and individuals justifiably exercising significant caution about sharing safety learnings with others in a timely fashion.
We raised the question in our related blog, Victorian OHS enforcement: why change the game plan when your team is on top? If the ‘end game’ is improving health and safety outcomes, are better options available?