The prosecution problem revisited

Great piece by Greg Smith (Author of “PAPER SAFE”) – first published here: https://www.waylandlegal.com.au/blog/the-prosecution-problem-revisited

On 1 August 2019 an article was published about a health and safety prosecution in Western Australia, and it was another rallying cry against insufficient penalties following workplace fatalities. I do not propose to speak about the specifics of the case, and you can read the commentary for yourself at the link below:

An insult on my son’s life’: Mother aghast at $38,000 fine for worksite death

I will say the case involved a young worker, Wesley Ballantine, and the article featured his mother, Regan Ballantine. I have heard Ms Ballantine speak and I have been lucky enough to meet her and speak with her. She is an articulate and reasoned advocate for her case. She and Helen Fitzroy are two people that every organisation should invite to speak, both because they are wonderful presenters and strong people, and as importantly they help us understand the profound effect of workplace fatalities on those left behind. And while I would not pretend to even begin understanding Ms Ballantine’s loss, I do believe the discussion around prosecution and penalty in workplace safety needs to change.

Legal sanctions have limits and I think we have reached them.

I have written about this topic before in The Prosecution Problem. In my earlier article, I argued the purpose of health and safety legislation is not to punish individuals and organisations. To the extent that health and safety legislation provides for punishment, it is a means to an end. The “end” – the purpose of health and safety legislation – in my view, is to promote “safe” workplaces. If that is right, or at least something like that, punishment in health and safety legislation should contribute to the promotion of safe workplaces.

The question is, does it? Reading the ongoing debate around Industrial manslaughter the question of safety does not even seen to come up.

Whatever might be said in support of increasing penalties for breaches of health and safety legislation, we must recognise that the punishment and prosecution process does have significant limitations in the context of promoting safe workplaces.

The opportunity to meaningfully discuss these issues came up most recently in the Review of the Model Work Health and Safety Laws Final report December 2018.

Unfortunately, the Review simply fell into line with a developing consensus around the need for increased penalties and Industrial Manslaughter. Industrial Manslaughter in particular, seems justified on two platforms, public pressure and administrative convenience – there was no discussion about whether it would improve safety:

The case for change

Consultations for this Review (mirrored in submissions to the Senate inquiry into industrial deaths) revealed a clear and increasing view amongst a great many in the community that there should be an outcome-based offence in the model WHS laws where the death of another person occurs as a result of the gross negligence of either an individual or an organisation. The strong community expectation is that it should be possible to prosecute for the death of a person under a statutory offence of industrial manslaughter in the model WHS laws. (page 119)

And

At a practical level, the absence of an industrial manslaughter offence in the model WHS Act also increases the potential for inconsistency as jurisdictions successively introduce their own offence into their WHS or other legislation. (page 120)

There was no discussion, much less any evidence, that Industrial Manslaughter, or ever-increasing penalties for employers and individuals following a workplace accident positively influenced safety outcome. In other words, there is no evidence the current pursuit of increased penalties under WHS legislation resulted in safer workplaces.

In my previous article on prosecutions, I argued for a move away from prosecution under health and safety legislation. This is a view which seems to be shared by the South Australian Coroner.

Unfortunately, the views of the SA coroner on the issue of industrial manslaughter, someone whose view I think are far more connected with the “legal” reality of workplace death, were specifically rejected in the Review:

I also acknowledge within this context the views of the South Australian Coroner, who dismissed calls for an industrial manslaughter offence in South Australia, suggesting that the current laws for prosecuting workplace injuries cause defensive litigious strategies on the part of employers and regulators and an industrial manslaughter offence will only add to that. (page 120)

What the SA Coroner said was:

The present case has demonstrated that the present laws relating to prosecution for workplace injuries cause defensive litigious strategies on the part of employers and regulators. To raise the stakes even higher by the introduction of an indictable offence such as manslaughter would only exacerbate those tendencies. Those tendencies are not conducive to the public exposure and bringing to light of the full facts surrounding an industrial tragedy such as Mr Castillo-Riffo’s. [36.1] (my emphasis added).

The SA Coroner repeated their previous observations, which I think are worth restating in full:

As a matter of law reform, I suggest that the Government consider a major reform of the current system of criminal prosecution for fatal industrial accidents. In my opinion it is just wrong that the prosecution of Diemould took 5 years to arrive at a plea of guilty. There must be a way to improve that. It seems to me that the family of a person killed in a workplace accident may be better served by seeing an open public inquiry convened within 12 to 18 months of the accident, than a criminal prosecution which might never result in the public hearing of any evidence, and which takes more than three times that long to even start. I suggest that consideration be given to a reform of the law which would enable the following things to happen:

1) Coroner intimates that, were no charges to be laid against any person in connection with the accident, an Inquest would be held;

2) Family elects whether they would prefer that the matter be the subject of an Inquest, or the subject of the usual criminal process;

3) If the family elects that they would prefer that there be an Inquest, the prosecuting authorities (including the DPP) would be empowered to intimate that no person or company would be prosecuted under the Occupational Health, Safety and Welfare Act or any other law. Such an intimation would then operate as a bar against future prosecution and, accordingly, no person would be exposed to the risk of self incrimination in answering questions at the Inquest, with the result that the Court could insist that answers be given, notwithstanding that they might otherwise be refused on that ground. [36.2]

For the advocates of ever-increasing penalties, the questions to consider are:

  • What is the benefit of the increasing penalties, and where is the evidence they work?
  • How much is enough? At what point do we reach the point beyond which there is no value?

Is there really a case we can point to where the existence of Industrial Manslaughter would have changed the outcome? The health and safety industry has been (misleadingly in my view) banging on about how people can go to jail for health and safety breaches, for years. Yet workplace deaths continue. Will another version of the same tune really change anything?

For people who care about the safety of people in the workplace, the real question is what will help achieve change?

For what it is worth, I do not think Industrial Manslaughter holds any answers.

7 Replies to “The prosecution problem revisited”

  1. Dear Greg,

    An excellent analysis, which would leave many of the redneck hang ’em high culture slurring words with more than one syllable.

    What are the implications of removing the conclusion of accidental death following a coronial inquest, which is based on the balance of probabilities?

    This would leave other conclusions such as unlawful killing, death by misadventure or an open verdict. My initial thoughts are it may well receive significant opposition from federal and state governments and insurance (extortion) companies given our governments have been corporatized and captured. Indeed corporations no longer have to lobby governments, they are the government. Moreover, political persuasion is no longer left or right but top and bottom.

    This was a significant obstacle encountered by the Hillsborough families and it took almost thirty years and several prolonged inquiries to obtain a verdict of unlawful killing and it is still not finished with a retrial of the match commander due in October.

  2. A brilliant analysis Greg. When the powers and vested interested are locked in their own delusions without vision you end up with this sort of stuff. Most of the attributions to the WHS review or this fixation on industrial man slaughter are comical.

  3. Agree with Greg. Prosecution is a blunt instrument when it comes to nuancing behaviour by promoting different ways of thinking about risk and practical measures.

    1. So hard to see anything but political value in it. I dont buy the disincentive line – these prosecutions are handed out years after the event and any opportunity for learning is well and truly lost. By then, all involved have probabbly already suffered significantly.

  4. If I read correctly, I would conclude that increases in penalties will probably increase the amount of protection senior management will work into their systems, and more of a culture of blaming the lowest possible person will increase. In the end, I would foresee that the end result would be that the most protectable (i.e. people who can afford to insulate themselves with legal representation and advice) will “delegate” the culpability to the (already) most vulnerable worker and throw them under the bus. The senior manager will use (abuse?) all his power to put the blame and guilt on the worker who actually has to do what he is told. Do I understand this correctly?

  5. Statutory legislation just like a standard operating procedure is written to protect the writer. Corporate manslaughter legislation is written to protect the state which has been captured big business through its lobbyists. Just take a look at Boeing and the FAA with their response to the 737 Max tragedies. Governments are not moral agents and it is no longer left or right but top versus bottom.

    The justice emanating from corporate manslaughter just like health care will be determined by your bank balance or credit card limit.

Do you have any thoughts? Please share them below