The Australian non-revolution in safety laws

The Australian non-revolution in safety laws

Australia has been undergoing a non-revolution in safety law over the past few years.  It has occupied vast resources of the commonwealth and state governments and industry alike.  For what actual purpose?  Possibly very little.  For these reasons.

The first is about the source of law itself in occupational health and safety.  There are two main sources of law; one the statute law which was already harmonized even before the so-called process of harmonization began; and the second is the common law which was more than harmonized, it was the same.

The word harmony (i.e. harmonization) is taken to mean the arrangement of things that is are not necessarily the same but not clashing either; thus working together.  In this regard, The statute law was already harmonized before the process began.  We already in-effect had a “model act” which by and large every place in Australia had implemented.  The model act has been the Health and Safety at Work etc. Act 1974 (UK).   The UK act was based on the reforms recommended by the review known as the Robens report (Committee on Safety and Health at Work 1972).  These reforms introduced in the UK a codification of common law into statute and collaborative problem solving.  All of the Australian jurisdictions subsequently followed much the same style.  Thus we have had a model for years and therefore laws throughout Australia that have been the same in style and similar in substance and I would say generally in harmony.  So you wouldn’t think that harmonizing something that was already harmonized would cause so many arguments or worries over whether it was finished or not.

Even more remarkable than the desire to harmonize a set of statutory arrangements that largely were already harmonized has been the overlooking of the common law.  The common law applies across jurisdictions and provided a consistent law in occupational health and safety.  The common law was already an Australia-wide system.  Access to remedies under common law varies but the duties themselves are the same.  Thus the duty of care from one party to another potentially affected person is consistent throughout Australia.  If you are looking for consistent law then look no further than the common law.

The second point is about the relevance of any inconsistency.  Most people work in small businesses.  Some small business, especially those near borders may have some interest in two jurisdictions but most do not.  Many larger businesses have interests in more than one place but some do not.  The end result is that most people work in places that have no interest in multistate affairs.  Your local hairdresser in Glenelg in South Australia has no concern about the tiny differences in legislative matters covering a hairdresser in Bendigo in Victoria any more than they would be worried by a difference in rules governing a hairdresser in Auckland or Los Angeles.  The differences throughout Australia in statute law are at the edges rather than the core and these minor differences are of no relevance to most people.

The third point is that law is of only some importance in driving change.  Law is only one motivation for actions on health and safety.  Law is not all-important.  It is possibly not even very important.   Actions are motivated by many other things.  Law establishes a minimum set of actions, a reasonable set of actions, not a high quality set of actions.  Think about a health and safety improvement that you have seen or helped create at a workplace.  Was it that bad that it was illegal at the outset?  If it was not then the law provided no motivation for the change.  By observation of practical problem solving activities at workplaces it seems as though the great majority of health and safety improvements does not occur in order to cross the illegal-legal threshold.  They are done for the purposes of further improvement for other reasons.  This work in health and safety is in the “optimization” space.  Once beyond the legal minimum what motivation does the law create?  None.  Therefore, thankfully, people who can influence health and safety are motivated by other things; otherwise everything would be at the legal minimum.  So if the law is not particularly important in driving many, and I would say most, health and safety improvements, it follows that small differences in it are not particularly important.

A more targeted response

The harmonization approach was a case of using a broad spectrum solution to a narrow problem.  The approach taken was to address the whole system to deal with a small number of organizations with concerns.  Some large organizations may have found differences on the fringe of regulation to be of some burden.  Hence it sounded sensible to iron out those differences.  However it meant changing the laws for everyone for the benefit of a arguably a fairly small group.  A lateral and simpler approach would be to not change the laws for everyone to suit a few but rather allow the few for whom it mattered to choose one set of laws and follow those.  An agreement could have been made between jurisdictions that organizations in multiple places could nominate one or the other set of laws by a declaration.  Most organizations have no interest as it does not affect them.  And it is doubtful whether those that do cross borders would have ever made the nomination.  The thinking behind this is that once they tried to compare the laws side by side they would not be able to see any real difference or advantage or would see minor points one way and some the other and would not have bothered choosing.  Nevertheless the option to choose would have addressed complaints about differences being burdensome.  This would be an example of a targeted solution rather than a blitz; a bit like pulling a weed out of your garden rather than attacking the whole thing with a bulldozer.

The downside to harmonization

For the above reasons, the harmonization process was never going to radically change on a vast scale exposure of risk at work.  It probably had the prospect of some improvements here and there, but with that also came the prospect of some diminution in other places.  At best then the intergovernmental agreement is of little practical relevance but what could be a problem is that it could be harmful.  Whatever value you ascribe to legislation, whether it is a lot, some, or a little, if it is to be of more benefit, it needs to innovate.  That is self-evident.  If it is to be better it must change.  The intergovernmental agreement could be harmful by making innovation in law more difficult.  Innovation does not come from making sure every jurisdiction is perfectly ordinary.  Innovation springs from being imperfectly great in some places.  Innovation does not come from consistency.  Innovation comes from inconsistency.  The approach of refining the philosophical base for legislation might have been worthwhile but the hundreds of pages of detail necessarily reverted to the lowest-common denominator that could be agreed and if left in place makes change difficult.  In terms of idea evolution, the harmonized approach was bound at the outset to ensure the survival of the most acceptable ideas, not necessarily the best ideas.   In Sweden roll over protection on tractors was mandatory on new tractors from 1959 and on tractors in use from 1965.  Imagine if the Swedes had to wait until we decided to agree?  The same is true of the danger of not allowing experimentation and innovation within Australia.

Two years into the non-revolution in safety law and what has happened?

Who’s job is safer?

Has there been a single prosecution that was not possible before?  Any?

How many resources have organizations plowed into learning about the so-called new laws instead of actually working on safety problems?

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About John Culvenor

Hi, Thank you for taking a look at this blog. I work in engineering, ergonomics, creativity, design, training, etc. Often this is about helping solve legal puzzles through accident analysis. Sometimes it is about thinking up better designs for equipment, workplaces, and systems. This blog is about good design and bad design, accident analysis and how it can be done better, and how we can make a better, safer world by design!
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8 Responses to The Australian non-revolution in safety laws

  1. Stephen Hehir says:

    Old 1991 OHS Act (Commonwealth)
    The old OHS Act 1991 did not place a specific duty on officers, nor did it use the term ‘officer’. The Act did provide that the conduct of directors, servants and agents can be taken into account to establish the state of mind of a body corporate, in relation to particular conduct, during proceedings for a breach of the Act or regulations. It is a defence for a servant or agent to show that he/she took reasonable precautions and exercised due diligence to avoid the conduct which is the subject breach proceedings. To the best of my knowledge, prosecutions under the old Act were against the body corporate, and not individuals (notwithstanding the ability to consider individual neglegence under common law).

    New 2011 WHS Act (Commonwealth)
    The new WHS Act places a positive duty on officers to exercise due diligence to ensure compliance with the Act. The new WHSAct defines ‘officer’ to mean a person who makes, or participates in making, decisions that affect the business or undertaking, thus placing an accountability upon the officer. Penalties apply directly to the officers for a breach. I have observed a significant change in the concern of officers regarding safety as a consequence of the positive duty. In general I agree with your comments John, but the subtle change in accountability in the commonwealth jurisdiction has, I believe, helped to some degree. Time will tell in term of case outcomes in the courts – many are waiting to see how this plays out.

  2. Hi Stephen, Thank you for your contribution.

    If the decision makers in the Commonwealth are taking more interest then that sounds like a positive aspect (although it might be based on a misunderstanding of both the ‘newness’ of their obligations and the probability of enforcement).

    For the previous 20 years section 21 of the 1991 Act covered any possible thing an officer (if they were an employee) could do or not do that created a risk or increased a risk [21(1)(a)] and s21(1)(b) required the officer (if they were an employee) co-operate with the employer in terms of fulfilling its obligations; in other words “do your job!”

    Is there really anything that an officer could do or not do nowadays and be in breach of the 2011 Act that would not have been covered by these existing provisions?

    I can’t think of anything. But if it worked as you have noticed, even if it is entirely illogical, then that is a positive.

    *A note on the old s21(1)(a): it was geographically bounded whereas in some other jurisdictions it was unlimited.

  3. Phillip GILMORE says:

    Very interesting perspective. Worthy of thought.

    If I am entirely self interested I have to point to it being easier to teach OHS law competency across state borders when it is the same. Of course it isn’t exactly the same but the closer the better.
    The real issue posed is whether any law makes a real difference or are other factors more significant?
    My question is, are OHS professionals agents for real societal level change or agents of control (police officers of the status quo)?

    • Stephen Hehir says:

      Perhaps the safety community are simply pawns in a bigger game being played out by the modern day Henry VIIIs of the corporate world. One day their focus is compliance (controlling the risk of prosecution), another day it is a focus on culture (controlling the risk of unsafe behaviour). Occasionally a monarch of industry “gets it”, and has a focus on prevention (controlling the risk of injury). And nobody in all of Oz, no wizard that there is or was, is ever going to bring down injury rates until work is designed safe from the get go. And that might mean a machine does the heavy lifting instead of the worker and yes, there might be less jobs.

      But while the machine is still more expensive (CAPEX) and workers cheaper (OPEX), those less prescient monarchs who seem to control the game of thrones will make the expedient decision. The rule based safety practitioners can be a thorn in the side, or a lever of progress to find the economic low order of control that enables the corporate profit whilst providing a level of protection from prosecution when something does go wrong (risk management).

      This later role is not that of the policeman, but rather, something more mercurial. A pity such creativity is not targeted at designing-out or eliminating the risk.

      Some corporations are starting to see the light. Some saw it a long tome ago and now reap the rewards. Leaders of those corporations listened to the rich story told by a safety hierophant that made sense, and was not just another parrot repeating the jingle proselytised by… well you know what I mean

  4. Hi Phillip, Thank you for the input.

    “…easier to teach OHS law competency across state borders when it is the same.”

    But what about the old favorite exam question “Compare and contrast…” 🙂

    “The real issue posed is whether any law makes a real difference or are other factors more significant?”

    Yes, I don’t think we know.

    “My question is, are OHS professionals agents for real societal level change or agents of control (police officers of the status quo)?”

    I think that a fixation on the law, which on my reading is becoming greater, leads more to the second. A kind of paralysis through fixation.

  5. Stephen Hehir says:

    postscript.

    by control the risk of injury, I mean eliminating it. Don’t just fuddle around the edges with rules and behaviour, but get rid of, or change the base process or equipment. Innovate a new way!

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