Greg

I think your point on penalties is very valid. The government is making mileage out the increased penalties in most States but for years, OHS lawyers and researchers have questioned the OHS benefits of financial penalties. The contemporary status of the proposed laws would be more valid if alternate penalties were integrated into the legislation. And there are alternatives

There is a database of solutions that Safe Work Australia, I believe, has been developing (or is that the Safety Institute of Australia) but these are very basic and focus on engineering solutions. These are necessary aids to small business but don\’t add much for the safety manager. I am a strong advocate of sharing solutions and get frustrated with those companies and experts who hold back on the solutions for reasons of intellectual property, or copyright.

I find that the best legal OHS cases have come through the NSW Industrial Magistrate and I would support such an OHS court nationally. I have written elsewhere of an Ombudsman.

It is frustrating that Victorian Magistrate\’s Court cases are not reported on or decisions published as this would reflect an accurate level of legal and prosecutorial effort by the regulators.

I sympathise with the desire for a fresh approach to OHS but it is unlikely to occur in the current harmonisation process as the timelines are tight and the institutional baggage has still not been settled. I have been reading a lot about Robens lately and wish that there was a similar change of approach for the next four decades.

Some labour lawyers and academics are starting to speculate but this is in the realm of fantasy because the federal government has already planned its path

I think that this post highlights a fundamental conflict of interest in current health and safety laws that is limiting the ability to move safety and health forward; it also highlights to me a need to start challenging some of the basic structures around the regulation of safety and health. For example, are health and safety laws about justice for victims of workplace accidents, or are they about ensuring safe systems of work at a workplace?

Perhaps there is a case for moving the \’justice\’ elements of safety regulation out of safety legislation into other arenas. After all – who do the fines from safety prosecutions help? The victims? No. The organisation prosecuted? No – in fact resources that could have been devoted to safety are diminished!

Perhaps there is a case to be argued that improved safety performance would be better served through strong, independent investigation and sharing of lessons that are not constrained or limited by the processes of usual court proceedings. Investigations and sharing of lessons that are resolved in a matter of months – and so remain fresh and useful. Not years, becoming forgotten and stale.

Investigations that have strong powers of compulsion – a coronial court on steroids, and are not restricted by concepts such as legal professional privilege.

Investigations that exist wholly and solely to determine the cause of accidents and to share lessons, not to determine guilt, liability and penalty.

That is not to say justice is not important, but perhaps the avenues need to be reconsidered. Is there a case to have criminal sanctions for safety and health breaches contained within the criminal law and dealt with their? Or in industrial legislation, like the Fair Work Act? Do we need to revisit the rights of victims of workplace accidents and their families to seek compensation against their employers?

Is it time for something different, and not just technocratic tinkering at the edges for the sake of consistency. After all – is there any real benefit in regulation that is consistently ineffective?