How are the orders used across Australian jurisdictions, and what impact does the orders have on achieving compliance?
What is this research about?
The Work Health and Safety (WHS) laws specify the orders that courts may impose on WHS offenders as part of sentencing.
In addition to fines, these include: adverse publicity orders, restoration orders, WHS project orders, training orders and release upon the giving of a WHS undertaking.
The use of such orders increases awareness, builds skills, and repairs harm however these have been used infrequently in WHS sentencing.
In early 2019, an adverse publicity order was handed down for the first time in New South Wales under the harmonised WHS Act. This raised questions regarding the impact of non-monetary court orders and the principles for when to raise the possibility of a particular order to the court.
Timeline of project
This project has been completed. While the manuscript is going through the publication process a summary of the project can be found here.
What did the researchers look at?
This project summarised how each order has been used across Australian jurisdictions, within and outside WHS and across the international literature, by drawing upon evidence from legal, grey and academic literature, case law and prosecution summaries.
This project has gathered evidence informing when and how non-monetary orders have been applied and sets out relevant considerations for WHS regulators wanting to make sentencing submissions to the courts.
It has highlighted limitations and benefits, pitfalls and opportunities, and proposed solutions to commonly expressed concerns. Most importantly, it has highlighted the lack of validation and lack of best practice guidance to support an evidence-based, nationally consistent, approach to using non-monetary orders.
To address these limitations, the research emphasises the role held by WHS regulators, recognising their unique position to further the multifaceted and wide-ranging benefits that can be achieved by non-monetary orders.
Applying the insights of this research, regulators are encouraged to exercise their discretion in advocating for these orders in appropriate circumstances and become more involved in providing advice to the courts on sentencing and the likely effects of those options on WHS outcomes.
This will enhance the evidence base, enable empirical study and further the conversation to bring greater clarity to the purposes of the orders and the principles for their application.
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