The use of ‘pure risk’ prosecutions under the Australian Work Health and Safety Acts

Опубликовано: 05 Июнь 2024
на канале: Melbourne Law School

On 21 May 2024, the Centre for Employment and Labour Relations Law at Melbourne Law School hosted a seminar on legal and policy issues involved in the use of ‘pure risk’ prosecutions under the Australian Work Health and Safety Acts, presented by Professor Richard Johnstone, with commentary provided by Judge Peter Rozen (County Court, Victoria).

A pure risk prosecution is a prosecution for a breach of a risk-based legal duty arising from circumstances that do not involve death, injury, illness or a near miss. The paper will introduce the key ethical, policy and legal justifications for pure risk prosecutions: that prevention reduces human suffering and the costs of work-related injury and disease; that pure risk prosecutions reinforce the preventative nature of work health and safety (WHS) regulation; and that pure risk prosecutions are consistent with the legal architecture in the Work Health and Safety Acts. It will then examine the consequences of the current WHS regulatory practice of mainly focusing prosecutions on events resulting in injuries, fatalities or near misses, and the implications of this for sentencing (that is, determining the level of fines). Finally, it will explore recent ‘pure risk’ prosecutions under the New South Wales and Queensland Work Health and Safety Acts to assess the feasibility of pure risk prosecutions, and the kinds of legal and policy issues that might arise from such prosecutions.