Some time ago, we queried whether punitive enforcement action against duty holders was the best approach for improving health and safety outcomes for Australian workers.

Since then, Australian Parliaments have been busy creating yet more offences for the statute books, that carry even more serious penalties. Industrial manslaughter is just one example. Cynics might interpret this as an attempt by Australian Governments to “be seen to be doing something” in respect of high work-related traumatic injury fatalities data.

Perceived (and actual) failures in numerous regulatory settings have been laid bare over recent years. The Financial Services Royal Commission and the ongoing Royal Commission into Aged Care Quality and Safety are just two examples of this. Those lessons have arguably informed current practices of Australian workplace safety Regulators.

As it is with the majority of the criminal law, discretion also underpins Australia’s patchwork of workplace health and safety laws. Just because something can legally be done, does not mean it should be done from a public policy perspective. As the old adage goes, ‘bad facts make bad law’.

Responsive regulation underpins most regulatory programs in Australia. It is an approach where a Regulator escalates or deescalates its response to duty-holders or issues on a sliding scale from ‘persuasive’ efforts to explain or encourage compliance, to a ‘mid-range’ of issuing notices, through to applying the ‘full force of the law’ – including commencing criminal prosecutions or revoking licences and permits. Responsive regulation is synonymous with the Enforcement Pyramids that form the basis of most Australian Regulators’ regulatory and enforcement policies.

As Professor Jeroen van der Heijden from the Victoria University of Wellington recently observed “[r]esponsive regulation asks regulators what it means to be responsive at different levels of the regulatory system, and how to be responsive”.

Those questions are devilishly tricky to answer. As Professor van der Heijden alludes to, those questions require Inspectors to be given adequate training and guidance to facilitate them exercising their discretion in an appropriate and consistent way. They also require Regulators to explain clearly to their stakeholders what “responsiveness” means under their regulatory and enforcement or prosecution policies.

The field of responsive regulation theory and practice is too vast to cover in this short blog.

No one denies the importance of enforcement action in the Courts for seriously deficient conduct that exposes persons to risk to their health and safety, as part of a broader regulatory response toolkit. The general and specific deterrent principles of the criminal law do have a proper application in a WHS context.

However, surely there is much to be gained through an informed discussion about:

  • how much “value add” specific categories of regulatory conduct contributes to improved health and safety outcomes in Australian workplaces, or furthers the statutory functions and roles of Regulators under WHS legislation; and
  • what different regulatory programs or approaches (aside from prosecutions) might be developed with limited tax-payer funds that better improve the health and safety of Australians at work.

The starting point may be asking the questions:

  1. what does “responsive regulation” in the safety space look like in 2020 and beyond; and
  2. how is that to be achieved?

A more pointed observation may be whether the current political climate in Australian jurisdictions sufficiently enables safety Regulators to ‘engage with risk’ and discuss these important questions in a meaningful way with their stakeholders.


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