| 488 |
In
Part 3 of this Report there is a discussion on
utilising sanctions both as a deterrent and where
possible to encourage more effective occupational
safety and health behaviour. Broad proposals were
also raised for amendment of the existing sentencing
laws towards achieving those objectives. It is
necessary here to further develop these issues.
This will go initially to the submissions and
the issues they raise, then to the useof the existing
penalties including the Criminal Code especially
in relation to theprosecution of Directors and
senior officers for serious offences and proposals
forpenalties where culpable behaviour leads to
serious injury and fatalities |
| 489 |
The
issue of penalties was addressed in many submissions.
Most were in favour ofincreasing penalties and
many expressed concern that senior executives
were not held personally liable or penalised for,
the injuries and deaths that occurred at theirworkplaces
and for which they carried a responsibility. Some
also expressed concernthat the Courts were too
lenient in relation to workplace death and injury
in comparisonto other matters. |
| 490 |
It
is important to note that many of those making
these submissions were referring principally to
cases involving serious injury or fatalities.
There was a substantialconsensus that lesser matters
should remain before the Local Courts although
somesought increased penalties as a reflection
of the community concern. A number of suggestions
were also made to change the penalty regime, many
with a view of linking the penalties more directly
with the offences. A number of these are worthy
of moredetailed consideration. |
| 491 |
A
number of employer representatives argued that
penalties were already high; they opposed any
alteration of penalties and argued that there
should be further researchconducted on the application
and effect of penalties before any further change.
Some submitted that increases would likely only
increase resistance. Guilty pleas would beless
likely and matters would be defended more vigorously.
As a consequence more would be spent on defending
cases and less spent on occupational safety and
health improvements. It was suggested that it
could also result in changes in employers’attitudes
which could become less tolerant. |
| 492 |
In
comments relating to the options being developed,
employer representatives andsome individual correspondents
were concerned that significant new penalties
would bere commended. Most argued that other strategies
such as education and informationwere likely to
be more effective. |
| 493 |
As
noted elsewhere in this Report, there is no intention
that existing information andeducation strategies
should be discarded simply to be replaced by increased
penalties.Indeed there are a number of recommendations
emphasising the need to continue and toimprove
those initiatives. Instead, penalties are addressed
to deal with those relativelyrare occasions where
other strategies are ineffective or the actions
taken (or not taken)are so reprehensible as to
affront a civilised community with a concern to
improve occupational safety and health. |
| 494 |
While
it seems that there would be little doubt that
further research could provide further insight
into the implementation and impact of penalties,
it is already evident thatexisting penalty levels
and processes are deficient in comparison to other
jurisdictionsand other States. As well there is
also some evidence that penalties and especiallypersonal
penalties do have an effect on behaviour. |
| 495 |
A
literature review undertaken by WorkSafe, in respect
of penalties, referred toNOHSC research that sought
to establish the most important motivators of
behavioural change for senior executive staff.
It concluded that offences that provided for personal
liability reinforced by credible enforcement are
the most significant motivatorsof senior staff. |
| 496 |
If
there is no change to penalties it is unlikely
that the results from Court proceedings would
take a different path in future. If the community
seeks to have the Courts place greater emphasis
on the deterrent value of penalties there needs
be change to those
penalties and processes. |
| 497 |
Regretfully,
many organisations seem to regard the duty of
care as someone else’s dutyand refuse to
accept their responsibilities in the context of
the Robens model. Many, for example, will not
provide employees a legitimate role and instead
engage inmanagement styles that provide little
capacity for employees to contribute in any meaningful
way. Self-regulation without sanction in that
environment will likely dolittle to improve occupational
safety and health. |
| 498 |
One
issue where there was no significant disagreement
was that the Courts had notapplied the maximum
penalties. Some argued this was consistent with
the properexercise of discretion under which the
Courts judged the severity or otherwise ofparticular
matters. Others argued that the level of penalties
reflected a tolerant attitudethat is no longer
acceptable in the rest of the community and there
needs to be greateraccountability. Whichever is
correct, it is evident that without other steps
being takenmerely increasing penalties in the
Act would not have a great impact. |
| 499 |
In
Part 3 of this Report it was concluded that penalties
should be substantial where itcan be demonstrated
that those with responsibilities have not complied
with theirobligations and that some matters should
be indictable offences put before superiorcourts.
It is argued that these would give greater prominence
to those matters. A smallnumber of submissions
also noted however, that superior Courts sometimes
appearedeven less inclined to impose heavier penalties
than the Local Court. That is an issue initself
that requires attention and was the subject of
a number of observations by aformer Coroner and
others that were directed towards getting a better
response. Part ofthat is getting the serious nature
of the offences recognised and despite the recenthistory
there is a reasonable expectation that placing
more significant matters before thesuperior courts
will bring a better recognition of their significance. |
