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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

A non-adversarial approach

WARREN BROOKBANKS argues the HSW Act represents a missed opportunity to take a non-adversarial approach to health and safety law, and that enforceable undertakings should be at its heart.

New Zealand’s Health and Safety at Work Act 2015 was modelled on similar legislation in Australia. It aims to achieve health and safety compliance through a philosophy of blaming and the threat of severe sanctions.

The implicit message of this new law is that employers should be fearful of the consequences of non-compliance and be motivated by the strong threat of punishment; in other words, they should comply with the regulatory framework, or else. The apparent expectation is that this will reduce workplace accidents.

From a non-adversarial law perspective, however, this model, although now well embedded in many jurisdictions, is misconceived. Workplace accidents are archetypal examples of the imperfection of human agents. Accidents happen because people are people and commonly make judgments and take risks that are flawed, and sometimes catastrophic. However, by their nature accidents are not intentional events but often the product of unforeseen, and sometimes unforeseeable, circumstances which the culpability-bearing agent lacked the insight or capacity to prevent.

AN ALTERNATIVE MODEL

Is there another way the issue of work-related injury could be addressed? Speaking at the Non-Adversarial Justice conference in Sydney in April this year, Cameron Grant, an inspector with the Australian Taxation Office, described a new model – called Dispute Assist – which could be instructive.

Dispute Assist is a new pilot ATO initiative to provide tailored assistance to taxpayers who have fallen foul of the Australian tax system. As at 30 May 2017 it had finalised 28 cases through the use of Dispute Assist “guides” or members of the project team. The issues which had led these defaulting taxpayers to be unable to meet their obligations included the terminal illness of a family member, addiction to drugs or gambling, suicide, restraining orders issued against abusive partners, financial distress, sexual abuse, and a range of mental health issues.

Significantly, given the sensitivity of the issues affecting taxpayers and the active pursuit of debt, the ATO’s guides were nonetheless able to provide defaulting taxpayers with the confidence to engage with debt officers and to cultivate relationships. Defaulting taxpayers were able to engage in dispute processes and have more confidence in the integrity of the tax system and to have a positive experience with the ATO. Taxpayers spoke of the support they received from ATO staff, the reduction of emotional pressure, the lifting of burdens, and the achievement of fair and just outcomes.

Going forward, the aim of the Dispute Assist project is to see how the process of tax administration can be made quicker, cheaper, more accessible, less intimidating, and fairer to people already suffering from debilitating personal issues in their lives.

RISK OF CRIMINALISATION

New Zealand has a significant problem with work-related deaths and injuries, but the legislative response leaves much to be desired. The legislature has opted for a coercive and punitive approach which has the potential to criminalise a significant number of employers.

For example, for the offence of reckless conduct in respect of a health and safety duty, the maximum penalty for an individual is five years imprisonment and/or a $300,000 fine. For an officer or a PCBU, it is five years and/or a $600,000 fine. For a body corporate the penalty is a fine up to $3 million.

The lesser offences – of failure to comply with a health and safety duty that exposes an individual to risk of death or serious injury; and failure to comply with a health and safety duty, which carry maximum fines of $150,000 and $50,000 respectively – are in effect offences of absolute liability. For an individual offender the penalty is identical to the offence of injuring with intent under section 189(2) of the Crimes Act 1961, and more severe than for the offence of injuring by an unlawful act in section 190.

Importantly, liability under the section can be imposed where the alleged conduct merely exposes a person to the relevant risk of death or serious injury, whether or not such injury actually occurs. These penalties represent a significant increase over the previous regime.

The evident intention of the legislation is to create compliance by creating a climate of fear of prosecution, under the expectation that a highly punitive prosecutorial regime will deter bad employment practices.

The contrast with the ATO’s Direct Assist regime could not be greater. The new H&S legislation could have sought to lighten the load on employers by pro-actively encouraging change in business practices and assisting them to bring about such change. Instead, it uses a backward-looking analysis of risk as a justification for imposing penalties that can only be designed to cripple and potentially crush small business operators, in the hope that this will deter other potential offenders.

ENFORCEABLE UNDERTAKINGS

As a minor concession to potential offenders the HSW Act has introduced the concept of an enforceable undertaking as an alternative to prosecution, by which the applicant agrees to do certain things in exchange for the regulator not filing charges. The legislative framework sets out a range of matters, including the circumstances in which the regulator can accept an undertaking, the publication of undertakings, the legal implications of giving an undertaking, and of withdrawing, varying and enforcing an undertaking.

However, the framework is still coercive and intimidatory and depends on the applicant agreeing to set out the sum of money that – at the least – will be spent on remedial activities. It is acknowledged that the financial cost to an applicant of an enforceable undertaking should be greater than that which would be incurred under a prosecution.

This statutory regime represents a lost opportunity to introduce a significant therapeutic jurisprudence component into our health and safety system. Rather than enforceable undertakings being an optional add-on to the legislative scheme, they should be its central feature, requiring and encouraging pro-active engagement with health and safety inspectors in encouraging better workplace safety, and working alongside employers with deficient business practices to create a healthy culture of safety compliance.

Under this approach, prosecution would be the default in only the most egregious breaches of workplace safety standards. Following the Dispute Assist model, the principal aim of health and safety inspectors would be to work with employers, to assess how personal issues may have affected their compliance obligations, and assist them towards strategic compliance practices. Exploring all options to resolve outstanding issues in a process that is fair and transparent, developing communication with employers and promoting greater confidence in the handling of compliance issues, is more likely to produce positive attitudes towards health and safety than the blunt threat of prosecution.

LENIENCE MORE EFFECTIVE

The all too ready recourse to criminal sanctioning in relation to areas of human behaviour that are not typically associated with criminal activity comes with the real risk of criminalising people who are, in other respects, model citizens and to whom “ordinary” criminal behaviour is abhorrent. This approach is hugely anti-therapeutic and may lead to good people being labelled as “criminals”, with a correspondingly negative response to the legal system and perceptions of justice and fairness.

Recent studies on the role of criminal sentencing suggest that many judges believe that justice and the public interest can best be served by lenience in sentencing, particularly where a person has acted out of character, where a risk assessment undertaken as part of a social enquiry report shows that the person presents a low risk of re-conviction, and where the person has shown genuine remorse. As a matter of general principle, where wrongdoing is egregious and highly wilful, there should be little concession made to human frailty. But where conduct is less serious, especially where what is alleged is a risk of harm rather than actual injury, there should be concessions to human frailty, which might allow less serious offences to be seen as unfortunate lapses, in many cases not warranting prosecution at all.

A non-adversarial justice approach, as exemplified in the Dispute Assist model, would aim to work with those involved in flawed decision-making to eliminate the risk of repetition. In other words, a non-adversarial approach is proactive not reactionary, and would seek to identify in advance severe risk factors and to mitigate their impact before disaster can occur. This may involve working closely with those perceived to be at high risk of disaster-prone behaviour or practices in order to help them better appreciate the areas of weakness needing to be addressed.

A non-adversarial approach also links to notions of forbearance and forgiveness as the prescription to change and renewal, if not an actual abandonment of the idea of punishment, other than in the most extreme cases of criminal wrongdoing. Non-adversarial justice acknowledges the fallibility of human endeavour but does not punish failure per se. Failure may need to be acknowledged and a degree of recalibration required of the agent’s perceptions and capacities, but outside of the worst excesses of wilful criminal offending, does not require punishment.

KEY LEGAL CONCEPTS FLAWED

Within this model there is recognition of the imperfection of certain foundational concepts, including blaming, deterrence, and retribution, which focus on, and draw their legitimacy from, the instrumental sanctioning of legal “outsiders”, and are only capable of reacting to human weaknesses rather than encouraging human strengths. These strengths may be enhanced through a more caring engagement with the actor, who will be motivated to acknowledge his/her deficiencies and make changes, without the threat of severe sanctions.

I endorse the idea of enforceable undertakings, but in any future review of the health and safety legislation serious thought should be given to making such undertakings a central part of the legislative scheme, rather than an optional, collateral feature. On this basis the onus would be on business operators to pro-actively develop health and safety-compliant work environments in collaboration with regulatory and compliance staff, with a view to achieving maximal compliance with best practice models, in a relationship that is non-intimidatory, accessible and cost-effective, and more instrumental in enhancing safety outcomes.

Criminal prosecution would be the default, but only in cases involving wilful and reckless non-compliance and where every effort has been made to engage the actor in a positive, co-operative health and safety plan.

Professor Warren Brookbanks teaches law at the Auckland University of Technology. He is the editor of Therapeutic Jurisprudence: New Zealand Perspectives (Thomson Reuters, Wellington, 2015).

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