Prosecution for OHS Offences: Deterrent or Disincentive
![handle is hein.journals/sydney29 and id is 359 raw text is: Prosecution for OHS Offences:
Deterrent or Disincentive?
NElL GUNNINGHAM*
Abstract
The role of prosecution in achieving compliance with Occupational Health and
Safety (OHS) legislation is a highly contentious issue, particularly in the mining
industry. In New South Wales, what is perceived by some as a newly aggressive
approach to prosecution has brought to the foregromd a number of critically
important questions concerning how best to regulate OHS. This article seeks to
identily a number of principles relating to prosecution policy that would achieve
more eflective 01-IS outcomes. In particular, it seeks to steer a middle path that
neither rejects prosecution as an important deterrent at the top of an enforcement
pyramid, nor uses it in circumstances where it is likely to do more harm than
good.
1. Introduction1
Prosecution? 'Make it achievable and make it fair!' (a NSW Mine Manager).
[l]t is fundamental that the criminal law must be administered in an appropriate
fashion. The legislature has chosen to emphasise the importance of occupational
health and safety matters by creating absolute offences. If the prosecution of
offences is undertaken in an arbitrary capricious and irresponsible fashion, the
laws themselves are brought into disrepute for reasons that are obvious. This is
especially so in the area of occupational health and safety prosecutions where it
is the custom of the prosecutor to seek a moiety of the penalty, that is payment of
one half of any amount imposed by way of penalty -Newcastle Wallsend Coal
Company Pfy Ltd v Inspector MeMartin [20061 NSWIR Comm 339 at [755)
(Marks J).
The role of prosecution in achieving compliance with OHS legislation is a highly
contentious issue, particularly in the mining industry. Nowhere is this more so than
in New South Wales, where, following the Gretley disaster,2 the Department of
* Neil Gunningham is Director of the National Research Centre for Occupational Health and
Safety Regulation within the Regulatory Institutions Network, Australian National University.
I I am grateful for the comments of Neil Foster., Richard Johnstone and Darren Sinclair on an
earlier drall. They are of course in no way responsible for the views expressed or for any
remaining errors. This research was conducted with the support of an Australian Research
Council Linkage Grant.
2 NSW Department of Mineral Resources, Gretley Inquiry Report: Final Report (1998) ('Gretley
Report').](ViewImageLocal?handle=hein.journals/sydney29&div=22&collection=&method=preview&ext=.png&size=3)
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Prosecution for OHS Offences: Deterrent or Disincentive
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