Abstract
Drawing on interviews with judicial officers in two Australian states, this article examines the role of judges in sentencing occupational health and safety offenders. Specifically, it focuses on the deterrent impact of occupational health and safety prosecutions, including judges’ understanding of deterrence and the judicial role in deterring serious breaches of occupational health and safety legislation. Judges thought that occupational health and safety prosecutions had some deterrent impact on prosecuted offenders, but were sceptical as to whether prosecutions led to lasting improvements in workplace safety, both in relation to the prosecuted offender and the wider community. Judges’ scepticism related to the fact that they viewed deterrence as a complex process involving a range of social institutions, including occupational health and safety regulators and the media. Further, the judiciary’s influence over sentencing outcomes was constrained by key elements of the judicial role, including the requirement that judges remain impartial and detached from other actors in the prosecution process. However, judges do play an important role in preventing workplace deaths and injuries, especially in relation to the constitutive or communicative effects of prosecution. By sentencing offenders, the judiciary acts as a key component in institutional processes that construct employers as bearing primary responsibility for the prevention of workplace deaths and injuries.
Keywords
Introduction
This article examines the judiciary’s role in occupational health and safety (OHS) prosecutions in New South Wales (NSW) and Victoria. In particular, we explore whether judicial officers think OHS prosecutions prevent convicted offenders from reoffending (specific deterrence), or non-prosecuted companies from breaching OHS legislation in the future (general deterrence) (Ackers and Sellers, 2009). The judiciary’s understanding of deterrence is situated within a consideration of broader issues around OHS. These relate to the role of judges in the prevention of workplace deaths and injuries, the barriers to effective deterrence, and the role of other organizations in shaping the prosecution process.
Judges face a unique set of challenges in sentencing offenders who have breached OHS legislation, particularly given the ambiguous nature of these laws. OHS legislation is based on broad duty provisions requiring employers (and others) to secure the health and safety of workers, so far as is reasonably practicable. In framing the duty provisions in these terms, OHS legislation draws upon concepts found in the common law of negligence. This body of law is concerned with civil remedies that compensate victims for their losses; however, breaches of OHS legislation are criminal offences, with prosecution aimed at punishing offenders and deterring future instances of non-compliance (Maxwell, 2004). Further, offences are absolute or strict liability in nature; in order to pursue prosecution, the prosecution must establish that the physical act constituting the offence occurred, but need not prove that the offender possessed a particular state of knowledge or intent (see Tooma, 2003). The use of strict liability in a criminal context is controversial, given that the ‘guilty mind’ traditionally provides the basis of an individual’s moral culpability, and hence their punishment (Hall et al., 2004). Australian employers dispute the absolute liability nature of OHS legislation, arguing that they should not be held criminally liable in circumstances where considerations of moral culpability are irrelevant to establishing a breach (Schofield et al., 2009). Employers’ concerns are compounded by the fact that serious penalties are available for breaches of OHS legislation, including severe fines and terms of imprisonment for some offences. Considering the heavily contested and highly politicized nature of OHS legislation, judges face considerable public and political scrutiny in relation to their sentencing practices.
Despite popular interest in the practices of judges in OHS cases, there is little academic literature on their role in sentencing offenders under these laws. This is despite there being a significant number of studies on the enforcement practices and policies of the regulatory authorities that administer OHS legislation (see e.g. Gunningham, 1987; Hutter, 2001). Similarly, there is a significant body of research on judicial decision-making in relation to white-collar crime (see e.g. Croall, 1992; Wheeler et al., 1988), but this research interest does not appear to extend to regulatory laws, including OHS legislation. One exception is Richard Johnstone’s (2003) study of the Victorian magistrates’ approach to sentencing OHS offenders during the early 1980s to late 1990s. Johnstone argued that magistrates’ construction of OHS crimes contributed to the ‘conventionalization’ of such breaches. Magistrates were part of an enforcement process that constructed OHS breaches as normal, conventional and not worthy of strong criminal sanctions, except in the most serious instances (see also Carson and Johnstone, 1990). Magistrates took an event-focused view, isolating the events of the case from their broader social and organizational context and obscuring the defendant’s responsibility for the implementation of safe systems of work. The ‘pulverization’ of cases in this manner contributed to low rates of fines for OHS offenders, providing tacit support for the position that such offences are less serious than breaches of traditional criminal laws.
Since Johnstone’s research, significant legislative changes in OHS, accompanied by administrative and enforcement changes, have seen the establishment of new curial regimes in some jurisdictions. Yet the role of judges in decision-making and sentencing with respect to OHS prosecutions has not been investigated since his study. Accordingly, we interviewed 16 members of the NSW and Victorian judiciary in order to examine judges’ views on the role of OHS prosecution in preventing serious workplace deaths and injuries. Interviews explored what members of the judiciary understood by serious breaches of OHS, the role and nature of legal prosecution in deterring them, and the barriers to effective deterrence. The interviews also dealt with the relationship between the courts, administrative authorities, offenders and the wider business community. We aimed to unpack the factors that affect judicial decision-making in OHS cases; accordingly, our study is not directly concerned with the factors that judges take into account in sentencing offenders, or with constraints on judicial discretion – as is the approach in many other studies (see e.g. Mackenzie, 2005; Von Hirsch et al., 2009). Rather, our focus is on judges’ understandings of prosecution and deterrence in OHS cases, of the relationship between them, and of the role judges themselves play in this relationship.
Our study is situated within a growing body of research on judging as a social practice, and the social factors and processes shaping judicial decision-making (see Kritzer, 2007; Mack and Roach Anleu, 2007; Roach Anleu and Mack, 2005; Tata, 2002). Conceptualizing judging as a social practice challenges the view that it is basically a complex technical exercise dependent upon an individual judge’s cognitive prowess or mastery of legal knowledge and cases (Tata, 2007). Socio-legal research shows that sentencing outcomes are determined by processes of case construction occurring at various points in the legal system and involving a number of actors, including the prosecutor and defence counsel. These actors construct cases through the organizational and administrative work involved before a case hearing takes place and in the presentation of evidence and arguments before a judge (Hutton, 2006; Tata, 2007). Thus, one of the key themes in this work is that while the judiciary is located within and subject to rigorous institutional processes that legitimate and enforce their practices and decisions, judges themselves are active social agents who think and act strategically (Hutton, 2006).
After a brief comparison of the court systems in NSW and Victoria, we present our methodology, with a particular focus on the difficulties of interviewing judges. In the next section, we describe the results of our interviews with judges hearing OHS cases in NSW and Victoria. This is followed by an analysis of the implications of our research for the role of the judiciary in shaping the deterrent outcomes of OHS prosecutions.
The Court Systems of New South Wales and Victoria
New South Wales
From 1987, serious OHS offences in NSW were heard in the NSW Industrial Court, and lesser offences in the Chief Industrial Magistrate’s Court. Prior to this date, OHS cases were heard in the general criminal courts in NSW. As its name implies, the Industrial Court is a specialist industrial court staffed by specialist judges. Cases at first instance were heard summarily, that is, by an Industrial Court judge sitting alone. Appeals could be brought from single judges to full benches of the Industrial Court; however, appeals to the general criminal courts were not available. It was possible to seek judicial review in the NSW Court of Criminal Appeal or NSW Court of Appeal from the Industrial Court, but only in a very narrow set of circumstances (see McCallum et al., 2004). With the introduction of the Work Health and Safety Act 2011, the NSW government transferred jurisdiction for the majority of OHS cases back to the mainstream criminal courts. This change is part of a series of amendments to OHS laws in NSW made in accordance with the ‘national harmonization process’ in Australia. This process involves the introduction of a model OHS Law in all Australian jurisdictions, including at both Commonwealth and state/territory levels (see McCallum and Roles, 2008; Sherriff and Tooma, 2010). As the research for this article took place prior to these changes coming into effect, interviews in NSW involved members of the NSW Industrial Court. The Court is an interesting study because its specialist judges made findings of fact and also had to apply the law coming before them. Given the ‘closed’ nature of the system, the NSW Industrial Court has built up a significant and rich jurisprudence of OHS law over the last quarter-century, that is, from 1987 to 2011.
Victoria
In contrast to NSW, Victorian OHS offences are only heard in the general criminal courts. The Victorian legislation is complex, but less serious breaches are prosecuted in the Victorian Magistrates Court, where they are heard summarily by a single magistrate. More serious offences are tried before a judge and jury in the County Court. If the prosecution and defence agree, the jury can be dispensed with and a judge sitting alone can hear the matter. However, it appears that prosecutions in the County Court are usually heard before a judge and jury (Creighton and Rosen, 2007: 186–189). In these serious prosecutions, the jury determines the facts with the judge specifying the law. Accordingly, findings of law and of fact are split between the bench and the jury-room. As the County Court is a general and not a specialist court, appeals from County Court convictions may be taken to the Victorian Court of Appeal, and ultimately to the High Court of Australia. It is in the decisions of the Court of Appeal that the Victorian OHS laws are analysed. Thus, it is in the Court of Appeal judgments that jurisprudence for this field of law is found, and hence the majority of our Victorian interviews involved judges of this Court. Finally, while appeals come before the Victorian Court of Appeal, the appellate judges do not sit on prosecutions at first instance.
Methods
In NSW, the researchers asked former and current members of the NSW Industrial Court and Chief Industrial Magistrates Court to participate in semi-structured interviews. Eight interviews were completed with NSW judges, including three current members of the NSW Industrial Court. Five of the NSW judges were men and three were women. In Victoria, the researchers approached judicial officers from the Supreme Court (Court of Appeal division), County Court and Magistrates Court, resulting in a further eight interviews. In contrast to NSW, all Victorian interviewees were current members of the Victorian Courts; four interviewees were from the Supreme Court, three were from the County Court and one magistrate participated in the study. As with NSW, five interviewees were men and three were women. Participants were asked to describe their professional background, the processes and procedures used to decide OHS cases, the courts’ role in preventing workplace deaths and injuries and whether, in their opinion, OHS cases have specific and general deterrent effects. The interviews were audio-taped and lasted between 30 minutes and an hour. The recorded interviews were transcribed by a confidential typist, and the de-identified transcripts analysed using a combination of thematic and grounded analysis (Glaser and Strauss, 1967; Liamputtong Rice and Ezzy, 1999).
Only 16 interviews were completed in total, restricting the extent to which the study’s findings can be generalized across other court systems. However, the small number of participants should be viewed in light of the documented difficulties of accessing judges for research purposes (Mackenzie, 2005). This perhaps reflects the judiciary’s traditional reluctance to engage in public discussion of their work, including countering criticism of a particular court’s actions (Campbell and Lee, 2001; Nicholson, 1995). In the past, the judiciary took this position as a means of protecting the public perception of its impartiality, and its isolation from public and political controversies (Campbell and Lee, 2001). Many contemporary courts and judges take a more relaxed approach. However, it remains problematic for the judiciary to produce public commentary on some aspects of its work, including comment on specific cases and matters of controversy (Campbell and Lee, 2001). For these reasons, we are particularly grateful to those judicial officers who participated in this study, and for fully answering our questions as far as they were able to do so.
Results
In this section, we present the results of our interviews with judges and magistrates who heard OHS cases in NSW and Victoria. Judges discussed a broad range of topics in the interviews and presented diverse views on the functions fulfilled by OHS prosecutions. From these views, we have drawn together some common themes. However, these themes do not represent the views of all the judges interviewed, nor were they present in every interview. Results are grouped according to the following themes: judges’ discussion of the sentencing process; the courts’ role in the prevention of workplace deaths and injuries; what judges thought were the barriers to preventing workplace deaths and injuries; whether judges thought prosecutions had specific and general deterrent effects and how they described these effects as operating; and finally, how the deterrent impact of OHS prosecutions might be improved. As the following demonstrates, despite the differences between the NSW judges who presided in a specialist industrial court, dealing with OHS matters on a regular basis, and their Victorian counterparts who dealt only occasionally with OHS matters in a generalist Court of Appeal, both shared very similar views in relation to sentencing and deterring OHS offences.
The Sentencing Process
Judges hearing OHS cases are involved in determining the guilt or innocence of offenders and setting the penalty where a guilty verdict is produced; however, in describing our results, we focus on the sentencing process. Given the strict liability nature of OHS offences, a large proportion of offenders enter a guilty plea in OHS prosecutions, meaning that, in these cases, the majority of judges’ work relates to sentencing. Additionally, in Victoria, determinations of guilt or innocence of serious OHS offences are often made by juries at first instance. Accordingly, most judges in our study said that sentencing was a complex and difficult task, perhaps more so than making a determination of guilt or innocence. One NSW judge said that there was a: … huge range and array of things that you are required to take into account and they are not all one way, and they do point in different directions. And it is just stating the obvious that … minds properly applied to the same issue may come up with very different results.
In NSW, the Industrial Court looks to the Crimes (Sentencing Procedure) Act 1999 (NSW) for mitigating and aggravating factors to be taken into account in sentencing offenders. The Victorian equivalent is the Sentencing Act 1991 (Vic), and both Acts require judges to look to similar matters in sentencing offenders, including offenders’ prior convictions, their good character, evidence of remorse and the entry of a plea of guilty. Thus, one NSW judge described the judge’s role in sentencing as: ‘a statutory role really … where one considers the objective seriousness of the offence and then weighs into the consideration, when considering penalty, the subjective features, taking guidance from the Crime Sentencing Procedures Act’.
Judges’ decision-making in sentencing was also shaped by other parties in the prosecution process. Judges discussed the role of regulatory agencies in determining case outcomes, both in terms of these agencies’ overall enforcement policy and their decision-making in relation to specific cases. The number of prosecutions that the NSW Industrial Court heard each year was a result of WorkCover NSW’s prosecution policy, described by some judges as changing in response to political pressures. One NSW judge thought that the Industrial Court was sometimes placed in a difficult position by the prosecutorial decision-making of the NSW regulator and its legal representatives: … prosecutorial decisions are obviously not decisions which the court makes, but the consequence the court has to deal with, so you get some very frustrating situations … [one] is situations where you have multiple offenders and there are guilty pleas and the court is served up with a number of different agreed statements of facts, which each portray the other defendants as the real perpetrators and not the one that is before the court. That is quite difficult and challenging and frustrating for judges.
The same judge commented on the infrequent use of alternative sanctions in NSW, which this judge related to the fact that prosecutors did not ask for such orders: … there are cases where it seemed to me that it would have been appropriate to make orders of that kind, but there is always a difficulty for a trial judge in considering making those orders because prosecutors don’t seek them, and defendants certainly don’t put their hands up … for a trial judge you are not going to be in a position to make those sorts of orders unless you have an evidentiary basis for them, and if the parties don’t lead the evidence and don’t invite you to consider them, even if you raise it you have got no evidentiary basis upon which to make the order.
The Courts’ Role in Deterring Workplace Deaths and Injuries
Judges demonstrated some caution when discussing their role in the prevention of workplace deaths and injuries. Many judges stressed that their role was limited to making determinations of guilt or innocence and setting a penalty in the instance of a guilty verdict. One NSW judge noted that an OHS prosecution dealt with one, isolated instance of a workplace risk, when in fact the problem could be systemic in nature. Such systemic problems were beyond the scope of the courts’ jurisdiction and were better addressed on an industry-wide basis, for example, by a prevention programme initiated by the regulator. Similarly, a Victorian judge described the courts’ role as: … bringing employers to account by bringing criminal prosecutions, recording convictions, imposing punishments that hurt, and having publicity about them … they can help not only deal with the individual case but they can play a role in raising a greater public awareness. But … we are always dealing at the end of it … when something has gone badly wrong rather than looking at what has happened, what you might be able to do to head it off.
Thus, judges’ role in preventing workplace deaths and injuries was limited by the fact that judicial determinations were a reaction to an event that had already occurred. On the other hand, and as mentioned in the previous quote, judges were of the view that their judgments could have a range of more indirect effects that were conducive to improving workplace safety. Judgments could have educative and rehabilitative functions in that other employers, primarily in the corporate and public sectors, might read judgments and use them to make improvements to their own safety systems. These larger employers, as judges recognized, usually employed OHS systems managers or advisers who are required to keep abreast of OHS court decisions. One NSW judge described the educative function of the NSW Industrial Court in these terms: … in some of the judgments that I write … where a large employer has decided … to plead guilty and, in seeking to mitigate the seriousness of it, take steps to … avoid the risk reccurring, some of them do that really, really well … . They go back to the grass roots and look at their OHS systems and policies and come up with a much better arrangement. It is not a bad idea … to provide some detail in your judgment about how they went about doing that, and you hope that that might be disseminated on a wider basis so that employers will take notice of the fact that a particular employer has made these significant changes and … will avoid risks of this type in the future.
Barriers to Preventing Workplace Deaths and Injuries
Judges thought that over the past 10 to 20 years many companies had developed a greater awareness of the importance of securing workplace health and safety. As a result, most companies coming before the courts had some form of safety system or policy in place. Most judges thought that employers breached OHS legislation by failing to properly implement and enforce these established systems of risk management. Correspondingly, the majority of breaches were omissions, that is, a failure to take positive steps to fully implement safe systems of work. From this perspective, cases tended to arise through negligence or oversight on the employers’ part, rather than through an intention to breach OHS legislation.
The way in which judges framed the cause of OHS offences corresponded with what they saw as the main barrier to preventing workplace deaths and injuries, namely, convincing employers that safety management was an ongoing process. Judges stressed that securing workplace safety required day-to-day effort. However, some companies still took a ‘tick the box’ approach to safety, where they developed safety policies or safe systems of work, but did not implement them all the way down to the ‘shop floor.’ As one NSW judge commented: … what happens is big companies … know they have got to have policies, they know they have got to have protocols, they know they have got to have risk assessments, they understand that only too well. And they do all this work … they produce all these manuals … but I suspect that there is not the follow-through … . There is some orientation … but of course unless you are there doing this constant individual … emphasis right through the workplace, the message doesn’t get through on occasions.
Another barrier to workplace safety was what some judges referred to as the ‘human factor’. Many judges thought that employee error or carelessness was a cause of workplace injuries or accidents, and was inevitable to a certain degree. Judges recognized that it could be difficult for employers to ensure that employees followed safety procedures on a daily basis and that sometimes workers were deserving of blame for creating workplace risks, despite the strict liability nature of the legislation. However, some judges conceptualized employee negligence in relation to employers’ failure to properly implement safety systems. In other words, employees’ unsafe behaviour pointed to the fact that employers needed to more adequately supervise employees to ensure they were acting safely. The other possibility was that employees’ unsafe behaviour occurred in the context of a failure in the safe system of work, so that there were multiple causes of the risk in question. The fact that employers failed to take sufficient steps to ensure employee safety was also linked to employers’ failure to understand the nature and extent of their duties under OHS legislation. One NSW judge said that: … I strike that a lot in the cases that come here … [t]he employer doesn’t understand or doesn’t realize the extent of their responsibility under the Act, and … doesn’t understand the absolute liability nature of the regime, that they are wholly responsible for ensuring that the employees aren’t subjected to risk. And [employers] take the view that, well it was a foolish or disobedient or silly act by the employee and what can I do to prevent that sort of thing.
The Deterrent Impact of Occupational Health and Safety Prosecutions
The dominant rationale for criminal prosecution of OHS offences is the production of deterrence (Gunningham and Johnstone, 1999). In our study, the majority of judges thought that OHS prosecutions had some specific deterrent impact. As one Victorian judge put it, once companies faced prosecution, they put significant time and effort into showing that they were conscious of their obligations and had taken steps to address the risk forming the basis of the offence. In the face of prosecution, companies seemed to realize that it was in their economic best interests to invest in workplace safety, as otherwise they risked spending a significant amount of money defending an OHS prosecution.
Judges conceived the deterrent impact of OHS prosecutions as working in different ways. Many stressed the importance of fines in deterring companies from reoffending. However, several judges were sceptical of the idea that increased fines could enhance the deterrent impact of prosecutions. One NSW judge thought that the prosecution process itself had a deterrent effect, as did the criminal conviction attaching to a finding of guilt: … I think the process of prosecution is a deterrent … the costs that go with that … the criminal stigma, I think those three things tend to act as a deterrent … at the end of the day, having pleaded guilty, well they have got this mark against them as having engaged in criminal conduct. I think that all acts as a deterrent.
A related consideration was the difficulty judges faced in setting fines large enough to ‘hurt’ big companies because of these companies’ significant economic resources. In some instances, the fines awarded by the court were lower than the costs for the company of defending the case. Judges’ discussion of the impact of fines on large companies was often linked to a concern that OHS prosecutions were becoming ‘conventionalized’ for big businesses and simply seen as another operating cost. As one NSW judge expressed it: … there will be the costs of production, the costs of gross sales, and a tendency which I … completely disagree with, but a tendency to include OHS as a cost rather than as a necessary step that should be taken in the conduct of a particular business. So it being a cost, the question of deterrence in financial terms has to meet the nature of the offence, and I am not sure that in terms of running businesses in our burgeoning economy that is being achieved at the present time.
On the other hand, the same judge said that while the fines that were awarded against employers were far below the maximum available, the business community already viewed penalties as excessive. This potentially impacted upon the level of fines NSW judges felt comfortable awarding against offenders: … So we are still way down the end of the range, but employers think that those fines are just appalling … I think there has been a sense in the court that we were heavy penalizers very early on, and I think that has [been] moderated to a degree in recognition of the fact that if the employers think that they are just being fined with oppressive penalties, you won’t get any cooperation, you won’t get any recognition and the system will have no status.
A number of judges also discussed the difficulties involved in setting penalties that deterred small companies from reoffending. They recognized the much greater impact of fines upon small compared to larger companies, and the potential of such fines to put small employers out of business. Judges also recognized that workplace incidents and prosecutions were particularly shocking or traumatic for small business owners. Nevertheless, judges were obliged to ensure that they were giving effect to the severity and importance of the offence. In discussing the impact of fines upon small companies, one NSW judge said that: … some of them just go to the wall when they get prosecuted because they can’t afford … the litigation, they can’t afford the fine, they can’t afford the costs order … and they will produce their balance sheet for the last five years and … they are living on the smell of an oily rag … . So you fine them 30 grand, 40 grand and then you get a costs order for 25, and on top of that they have got to pay their own [costs] and they are broke, and then they will say to you, you know I might have to sell my house, and how far do you go to punish them? And then you get told that you haven’t fined them enough.
Judges thought that while prosecutions might have some specific deterrent effects, the extent and duration of these effects were potentially limited. Companies took actions to address a risk and improve safety immediately following an incident; but this did not necessarily lead to lasting improvements in safety policies and procedures, or a proactive approach to safety management. Many judges said that it was difficult for them to tell whether a court case had any impact on a prosecuted company’s future behaviour, or getting companies to ‘own’ the problem of workplace health and safety. Judges tended to express uncertainty about whether formal court processes could ensure ‘heartfelt’ change, as opposed to isolated actions to address the risk forming the basis of the prosecution. This was particularly the case as judges could not ensure that safety improvements actually happened, short of making alternative sanction orders such as enforceable undertakings.
Judges expressed much more ambivalence about the general deterrent impact of cases compared to their specific deterrent effects. They stressed that general deterrence was a complex process, contingent upon certain conditions being met that were outside the courts’ control. In describing general deterrence, judges implicitly drew upon the classical model of deterrence described by deterrence theory. According to this theory, crimes are deterred by ensuring that punishment is swift, certain and severe, so that the economic costs of crime outweigh the benefits to the offender (Becker, 1968). However, deterrence depends not only upon how swift, certain and severe punishment actually is, but also upon the offender’s subjective knowledge of these factors (Nagin, 1998; Pogarsky and Piquero, 2003). Thus, the general deterrent impact of sanctions is dependent upon offenders’ knowledge of the risks of being caught and the severity of punishment, and their assessment of these risks against the benefits of committing a crime.
In discussing general deterrence, almost all judges were concerned that information about OHS cases was not reaching the community, so that would-be offenders lacked knowledge of how they might be dealt with by the courts. The popular media tended not to report OHS cases, and when they did, the media reported aspects of the case that did not provide impetus for safety improvements. As one Victorian judge said: … Whether or not there is a deterrent effect depends first of all on setting penalties which have that tendency, and more importantly, and it is a matter that is completely out of our hands, is the publicity that is given to the penalties that we impose. It is not much good us punishing people severely if no one ever knows about it.
Even if cases were reported, it was possible that individuals would not pick up on the details that were relevant to their circumstances. One NSW judge also said that the deterrent impact of cases was limited, as well-informed companies were unlikely to offend anyway and small companies were ignorant of cases, meaning that there were only a small number of companies for whom prosecutions against other companies could provide some kind of educative function. Similarly, one Victorian judge commented that: … ultimately 90% of people will always do the right thing and do, 5% will always do the wrong thing … for a whole range of reasons, some beyond their control, some not beyond their control … . And there is 5% for whom maybe the existence of a sanction will mean something.
Several judges in Victoria and NSW commented on possible differences in the deterrent impact between the two jurisdictions that were related to greater delays in hearing OHS cases in Victoria. These participants discussed the problems created by delays in hearing OHS cases in both states, particularly the length of time it took the relevant regulatory authority to investigate cases and lay charges. Yet, in Victoria, they commented that there were even further obstacles to expeditious sentencing of OHS offences primarily associated with specific provisions requiring sexual offences to be heard within three months of a charge being laid. These provisions meant that sexual assault matters took precedence over OHS cases, and the latter would be ‘bumped’ to accommodate the former. Correspondingly, there was a significant delay between the events forming the basis of an OHS offence, the laying of charges and when judges heard the case. In some instances, Victorian judges were hearing cases four to five years after an incident had occurred. One Victorian judge said that these delays meant circumstances had so altered for the workers and employers involved that any specific deterrent impact had dissipated by the time the case was heard. Delays allowed defendants to take additional steps to improve safety that could be used in mitigation, and also meant that the memory of witnesses faded. Thus, delays undermined the prosecution’s case, potentially impacting on a prosecution’s general deterrent impact.
Improving the Deterrent Impact of OHS Prosecutions
Judges were asked to comment on how the deterrence effects of OHS prosecutions might be improved, and almost all said that there should be greater publicity given to OHS cases. One NSW judge said that greater publicity of cases had the potential to enhance judgments’ educative functions: … I think there is … a bigger role for education in this area, to get out these decisions that show what went wrong and what could have been done to avoid it, and what the penalty is if you do something like this … . [If they] got out on a wider basis amongst employers, I think that would be very worthwhile.
Judges described a range of mechanisms through which the results of cases could be disseminated to the business community. Many thought that OHS authorities could play a greater role in publicizing cases, while also acknowledging that these bodies had already improved their efforts to publicize cases. One Victorian judge said that it was beneficial for the court to play an active role in making other parties aware of sentencing outcomes, for example, through the court’s website: … We have now for the first time ever … a website in which all of the sentences imposed by the … Court [are placed] … . That way the media has a greater opportunity to find out what is going on, because if I got the Editor of the Sun Herald or the Age in here, he or she would say to me, ‘Well we just, we have only got six journalists who do court work … they can’t possibly know what the courts are doing in relation to sentencing.’
Discussion
Although judges in two jurisdictions were interviewed for this research, we found a considerable degree of similarity between NSW and Victorian judges’ conceptualization of the deterrent impact of OHS cases. In both states, judges were guarded in discussing the deterrent role of OHS prosecutions, and were particularly sceptical about prosecutions’ general deterrent effects. However, one limitation of the study was that the researchers did not ask participating judges to discuss their perceptions of the nature of OHS crime (i.e. whether they considered it to be ‘truly’ criminal and how this affected judges’ sentencing practices. Accordingly, a direct comparison cannot be made between our findings and those of Johnstone’s (2003) study of Victorian magistrates’ role in the ‘conventionalization’ of OHS offences. In contrast to Johnstone’s research, many judges in our study did see employers as centrally responsible for failures in workplace safety; however, some judges also struggled with the complex nature of OHS breaches, which they also thought could be attributed to worker carelessness in some instances. Further, in sentencing offenders, judges had to balance a number of factors, including the deterrent impact of sanctions, the financial circumstances of the offender and the seriousness of the offence. Accordingly, it was not necessarily the case that judges saw OHS offences as less deserving of serious sanctions than other more ‘traditional’ crimes (e.g. theft and murder). Rather, a number of factors constrained judges’ ability to award penalties that were severe enough to deter breaches of OHS legislation. Such factors included legislative considerations and the financial resources of large companies.
Judges’ comments suggested that the actions of other social actors in the prosecution process also affected the deterrent impact of OHS prosecutions. For example, judges felt that their sentencing options were limited by submissions made by the prosecutor and the defendant in a specific case. A number of judges commented that, in some cases, they would have liked to order sanctions such as publicity orders, which would potentially enhance the deterrent impact of prosecution. However, they could not order these sanctions because the parties did not ask for them or provide an evidentiary basis for such an order. Judges also pointed to the important role of OHS regulators and the media in disseminating information about OHS cases; these agencies served as a conduit between the courts and the community, informing the public about the outcomes of OHS prosecutions as well as the courts’ role in enforcing OHS legislation. However, as recognized by judges, there was often a tension between the objectives of the media and the judiciary in publicizing sentencing decisions (see Nicholson, 1995). The judiciary wanted cases to be reported in an accurate and informative manner, but they perceived the media to be driven by an agenda that did not further these objectives. The media tended to report OHS cases only in instances where cases had a degree of sensationalism, and were unlikely to report details of cases that were useful to improving workplace safety. Accordingly, inaccurate or incomplete reporting of cases undermined the general deterrent impact of sentencing decisions. In sum, the actions of regulators and the media determined the efficacy of OHS prosecutions in preventing workplace deaths and injuries at a range of points in the prosecution process.
This finding sheds new light on how judges understand the relationship between their sentencing practices related to OHS offences and the deterrence of further such breaches. It is evident that judges do not think sentencing and penalties per se deter OHS offences. Rather, deterrence is dependent on the community and employers being aware of, and understanding the nature of, OHS infringements and employers’ responsibility for them. As the judges in our study revealed in their comments, deterrence is not simply a cause-and-effect relationship between sentencing and behavioural change. Instead, it is the product of a process involving a number of social institutions, including OHS regulators and the media. Accordingly, our research affirms the conception of sentencing (and its outcomes) as a collaborative process, as expressed in Johnstone’s study of Victorian OHS prosecutions (see also Tata, 2007). According to socio-legal literature, a range of social institutions and structures shape judicial decision-making, for example, sentencing principles, legislative frameworks and court culture (Hutton, 2006). Many studies conceptualize these factors as constraints upon judicial discretion (see Tata, 2002); however, we suggest that a focus on the relationships between the social institutions involved in the sentencing provides a more complete explanation of the production of deterrence in OHS cases. Deterrence is the result of a complex process played out in combinations of public and private organizations involved in the implementation of OHS laws, of which the judiciary is only one.
Judges demonstrated a keen awareness of their role as one of a number of players or agents in managing and deterring OHS offences. However, their role was significantly shaped by the requirements of the judicial role in the common law system. Traditionally, this role is one of neutral decision-maker, as implied by interviewees’ perception of their role as being the objective application of the law to a set of relevant facts. Active or partial intervention in the case at hand risks breaching the norms of the common law adversarial system and undermining the legitimacy of the courts and their decisions (Mack and Roach Anleu, 2007; Moorhead, 2007). Yet judges disclosed some frustration in response to the contractions they experienced in their role in prosecuting OHS offences. They recognized the need to maintain the independence and impartiality of the judiciary, but at the same time they were aware of the limitations this placed on their capacity to work actively with other agents towards producing improvements in workplace safety. For example, after making a determination between the parties to an OHS case, judges had no way to ensure that their orders were followed, or to determine whether such orders had an effect on the offender’s safety practices. On the other hand, the judiciary did seek to further the deterrent impact of OHS prosecutions within the constraints created by their role. As far as they were able, the judiciary in both states built institutional links with other actors in the prosecution process. In Victoria, this took the form of one Court creating a publicly accessible case database in order to facilitate accurate and factual reporting of OHS cases by the media.
Judges’ detachment from other parties involved in prosecutions (as required by judicial processes; see Fiss, 1982) meant that many of them were unsure of, or sceptical about, the deterrent effect generated by cases. However, as we have previously argued, OHS prosecutions do play an important role in the prevention of workplace deaths and injuries (Jamieson et al., 2010; Schofield et al., 2009). Rather than focus on a cause-and-effect relationship between prosecution and deterrence, this position draws upon communicative effects of the criminal law, whereby criminal prosecution operates to symbolize moral blameworthiness and condemnation (Haines and Hall, 2004). By sanctioning companies that have breached OHS legislation, the courts give voice to, and legitimate, community sentiment that an offender’s behaviour is morally reprehensible, and reaffirm the importance of maintaining employee safety at work. In doing so, judges are participating in a process that constitutes or constructs the responsibilities of employers in relation to workplace health and safety. In other words, the use of prosecution is an important way of constructing employers as the primary bearers of responsibility for preventing workplace deaths and injuries. Thus, judges and their decisions are an essential component of a system that produces deterrence through these constitutive processes.
Conclusions
Judges’ decision-making and sentencing are central features of OHS prosecution and play a critical role in deterring further offences. Yet judges’ understandings of prosecution and deterrence in relation to regulatory offences in general and OHS breaches in particular are poorly understood – a reflection in large part of negligible research in the field. Based on in-depth interviews with judges in two major Australian jurisdictions, this article has provided new insights into the work of judges in relation to OHS prosecution and deterrence. It is evident that judges are sceptical about the deterrent impact of their decisions, but not about the institutional ‘project’ of preventing workplace injuries and deaths. Our research suggests that judges’ reservations about the deterrent impact of their decision-making derive from their own recognition that they are but one of a number of players involved in the prosecutorial process, which is complex and over which they do not exercise control because of the demands for judicial independence. Further, judges express some frustration with this situation because they understand that one of the main features of their role is to deter subsequent offences. Despite judicial awareness that prosecution and deterrence in OHS is a multi-player institutional process, judges are sceptical about how it works and where their work fits into the project of furthering the aims of OHS legislation. However, we argue that in hearing OHS cases and sentencing those found guilty of breaches of OHS legislation, the judiciary expresses and legitimates public perceptions of the importance of workplace safety, and the morally reprehensible nature of serious breaches of OHS laws. Thus, judicial officers play a key role in the production of deterrence through communicative and constitutive processes that render employers primary responsibility for securing workplace safety.
Footnotes
Funding
This research was supported by an Australian Research Council Discovery Grant (project ID: DP0881859).