Background

The Australian Model Work Health and Safety (WHS) laws contain a range of orders for sentencing offenders. These include making offenders publicise their offence (Adverse Publicity Orders), restore harm caused by the offence (Restoration Order), carry out a WHS project (Project Order), and undertake training (Training Order). Courts can also adjourn prosecutions on the condition that the offender undertakes specific activities and remain on good behaviour for a period of time (WHS Undertaking). The specific activities can be whatever the court finds appropriate. Non-monetary orders can be given in addition to or instead of a fine, in isolation or combination, depending on the offender’s needs and circumstances.

Although the orders enable Australian WHS sentencing to go beyond punishment and deterrence, the use of such orders to increase awareness, build skills, and repair harm have been infrequent and inconsistent. In early 2019, an Adverse Publicity Order was handed down for the first time in New South Wales under the harmonised Work Health and Safety Act 2011. This raised questions regarding the impact of non-monetary orders on offenders and the principles for when to raise the possibility of such orders to the court.

The Centre for WHS’s review explored case law and literature across jurisdictions and areas of law, across Australia and internationally, to identify examples of how such orders have been used in the past along with the considerations made in those cases. Drawing upon these insights, the review discusses limitations and benefits, pitfalls and opportunities, and solutions to concerns regarding effectiveness and appropriateness. Most importantly, it highlights the lack of evidence and bestpractice guidance to support an evidence-based and consistent approach.

To address this, the review recognises the unique position of regulators to exercise their discretion and advocate for non-monetary orders in appropriate circumstances. Regulators are encouraged to provide advice to the courts on sentencing options and the likely effects on WHS outcomes. This will enhance the evidence base, enable empirical study and further the debate to bring greater clarity to the purposes of the orders and the principles for their application.

The following sections summarise relevant considerations for regulators wanting to propose non-monetary orders to the court.

Adverse publicity orders

By broadcasting prosecution outcomes, publicity can raise awareness, reinforce disapproval, warn about risks, and educate about appropriate controls (Fooks, Bergman & Rigby, 2007). Delayed impacts of this disapproval contribute to specific deterrence in the offender, while an enhanced perceived risk of getting caught increases general deterrence.

Regulators should consider (1) the nature of the offence (i.e., seriousness of the offence, risk of reoffending and culpability of the offender), (2) how common the offence is and (3) the level of compliance the offender has reached since the offence was committed. These considerations will help determine the need to inform, warn, punish and/or deter.

Since the effectiveness of the order depends on the nature of the offender and the audience, it is important to consider (4) how the audience and the offender views publicity and its impacts. If the offender sees reputation as important and appreciates the likelihood of the publicity reaching important people (e.g., investors, customers), the likelihood that these groups will disapprove, and the extent of the impacts of this disapproval as high, then the order is likely to be effective in deterring the offender (Gellhorn, 1973; Cortez, 2015).

While courts commonly restrict Adverse Publicity Orders to simple notices of factual information (i.e., details of the offence, appropriate management actions and the outcomes of the prosecution), the changing world of information-sharing makes it increasingly important to consider (5) the environment into which the publicity will be released. This also includes (6) the language and wording and how it may be interpreted by the intended audience and others. This is particularly important if delivery methods such as online news or social media will be used, many of which have restricted word limits or lend themselves to shorter and sharper messaging. Shortening information is known to put audiences at greater risk of misinterpreting information, while the effortless nature of forwarding and linking allows for mistakes to be easily multiplied (Cortez, 2015).

Anticipating the way information might get selected and framed in the media is, therefore, fundamentally important to managing reach, predicting interpretation and avoiding unintended consequences. However, it is also important to recognise that material that is noticeable, accessible, and seen as relevant and implementable is the most likely to generate the desired general deterrence and safety improvements (Thornton, Gunningham & Kagan, 2005). Further considerations include (7) the characteristics of the intended audience; Who needs to be informed, warned or deterred? Will they disapprove of the offending behaviour? Will they see the case as relevant to them and their workplace, and is it detailed enough so that they will learn from the case and make changes?

To increase the opportunity for general deterrence, regulators should also consider (8) how and when the target audience is best reached. This helps determine the delivery method, including duration and size of the notice. The level of attention and cost can then be estimated, and the order made proportional to the nature of the offence.

Proportionality is the main challenge of using the order. As it is impossible to withdraw the publicity and its impacts once it has been released (Cortez, 2015), it is important to consider aspects such as the political climate when determining wording and delivery. This includes whether the message has to compete with other, more newsworthy, stories and how effectively the media may dramatise the offence and the actions by the regulator and the court.

Considering the sheer quantity of information and demands of modern society on offenders, it is unclear how and to what extent they notice and learn from orders imposed on others and the level of deterrence prosecutions generate (Thornton, Gunningham & Kagan, 2005). The use of Adverse Publicity Orders allows courts to ensure the message is transmitted widely enough and is condemning enough to make the information about WHS offending more noticeable, accessible, applicable, and effective (Fooks, Bergman & Rigby, 2007; Jamieson et al., 2010; Thornton, Gunningham & Kagan, 2005).

Restoration orders

Restoration is a significant component of restoring harm to those affected by unlawful behaviour. This includes addressing both actual and potential harm through action, compensation and/or donation.

Regulators should consider (1) the nature of the offence and (2) the harm caused by the offence to determine the extent of harm or loss, and if it has been restored (having regard for workers compensation arrangements, public liability insurance and common law remedies). This can include the need to order action on unaddressed matters relating to the offence (e.g., to comply with a notice under section 155: Powers of the regulator to obtain information), to compensate victims for financial or other material losses, or to make a donation to compensate harm to the community. An order may not be necessary if the offending behaviour has been addressed or compensation to victims has been provided.

The overlap between Restoration Orders and restorative activities included in Project Orders, WHS Undertaking conditions and public apologies in Adverse Publicity Orders, show that restoration can easily be (3) combined with other non-monetary orders. Factors that has sparked the consideration of a Restoration Order in NSW and South Australian WHS cases in the past have included (4) characteristics of the victims or affected parties that indicate higher likelihood of having losses or harm that has not been fully compensated (e.g., being young and working under weak employment conditions) and lower likelihood of seeking compensation through other means (e.g., young; poor financial capacity; not having sought compensation during the time taken from incident to prosecution). Similarly, consider (5) the characteristics of the offender and their ability to comply.

Embracing the nature of restorative justice, regulators can influence wider reaching benefits by (6) employing approaches such as conferencing to give voice to victims and others affected by the offence. This can identify opportunities to restore harm to communities through donation or other project-style activities through charities, public organisations or trusts. Restorative justice approaches can also be used to devise solutions to address commonly expressed concerns relating to the order. One such concern is the limited deterrence that a donation would add (Gruner, 1993). Other relate to how the arrangements assessed, such as who will be given donations or compensation and how much they will be given (Gruner, 1993).

In summary, Restoration Orders emphasise the seriousness of the offence and the offender’s responsibility to restore harm. They provide opportunity to rebuild relationships and provide a safeguard to ensure harm is restored in cases where harm might not otherwise get addressed.

Work health and safety project orders

Project Orders allow courts to make offenders undertake activities to identify and address the failures that led to the offence. Giving offenders Project Orders and combining projects with other orders in ways that match the offender’s needs is particularly useful where offenders have repeatedly failed to act or are likely to reoffend (Bonta & Andrews, 2016). Similarly, adding activities that restore harm, raises awareness and builds capability for the wider industry or community can contribute to wider-reaching safety improvements.

Regulators should consider (1) the nature of the offence and the offender’s behaviour since the offence. If the offending was not deliberate, the offender takes responsibility for their actions and collaborates during the investigation, it may signal that the offender is willing and likely to complete a successful project (EPA, 2017).

When determining the content of the project, regulators could consider (2) the causes of the offence. If the failures are not known, an in-depth audit as part of the order can help inform future safety improvement activities. If the failures are known, the order can be (3) combined with other non-monetary orders to ensure that: failures in policy, procedures, and practices are addressed; learnings are applied (Training Order); risk or harm is addressed (Restoration Order), and outcomes are shared with the public (Adverse Publicity Order). If the offender lacks (4) the capacity and ability to comply with the order, the appointment of experts or consultants to support successful project outcomes can be part of the order.

The project activities can be (5) internal and/or community focussed. If there is opportunity to contribute to wider-ranging, community or research-based projects, the common approach is that the activities are related to the offence in some way. For example, the activities could be addressing failures that led to the offence or mitigating harm caused by the offence. In Victoria, the Occupational Health and Safety Act 2004 s 136(3) states that the cost of activities are limited to the maximum penalty the court could impose for the offence. This restriction has not been included in the Model Act. In jurisdictions such as England and Wales, the cost of project activities is not seen as part of the penalty as they generally relate to matters the offender should already have addressed by the time of the prosecution (UK Sentencing Council, 2015).

Similarities between Project Orders and other activity-based enforcement tools (e.g., Enforceable Undertakings [EUs] and Improvement Notices) also mean that the considerations made for these tools likely apply. For example, (6) the outcomes need to be concrete, tangible, and measurable in short and longer terms to enable monitoring and confirmation that the order has been complied with. Similarly, known issues may also apply. For example, if money is to be paid to third parties to be used in certain ways and those parties are not bound by the order (Johnstone and Parker, 2010). Research on EUs has also shown that project success in causing safety improvements and preventing reoffending is related to procedural and interactional fairness (Jess & Price, 2017). That is, putting in effort to ensure the offender understands and can influence the process being imposed on them, aiming for a respectful collaboration. Restorative justice approaches, such as (7) conferencing with offenders, victims and impacted parties, can thus increase the likelihood of improvements and lead to wider-ranging benefits.

The fact that Project Orders are rarely handed down on their own speaks to the potential to be reached when combining the order with fines or non-monetary orders. By tailoring projects to the specific needs and circumstances of the offender, the order can ensure the offender addresses its shortcomings, improves its performance, and shares its learnings more broadly.

Work health and safety undertakings

The WHS Undertaking gives courts the opportunity to emphasise the seriousness of an offence while allowing the offender to avoid further consequences by being on good behaviour. The order also makes the offender keep the court up-to-date on its compliance and allows courts to impose any conditions the court finds appropriate. This can be to either restrict the offender’s capacity to carry out its business or to directly improve compliance and prevent reoffending (Fooks, Bergman & Rigby, 2007).

Regulators should consider (1) the nature of the offence and the offender’s behaviour since the offence to determine whether an Undertaking should be recommended with or without conviction, fine, and/or special conditions. If the offending was not deliberate; the offender takes responsibility for its actions; and collaborates during the investigation, these behaviours may be signal that the offender is willing and likely to carry out the extra activities.

Since criminal courts tend to reserve good behaviour orders for less serious matters and low risk offenders who are unlikely to cause harm to the community, some concerns have been raised that the use of WHS Undertakings could trivialise WHS offences (Johnstone, 2003) and cause the public to see the offender as being “let off” (Bartels, 2010). However, the lack of cases where the order has been imposed on its own and without special conditions suggests that these concerns can easily be avoided. For example, by combining the order with other orders, by imposing special conditions, or by imposing the order in addition to, or partially in place of, a fine. The view that non-monetary orders should not be used for serious offences and offenders forgets the potential benefits that can be gained through rehabilitation and making offenders act on the failures they have repeatedly failed to address.

When identifying special conditions, regulators need to consider (2) the aim of the order and whether this is to add deterrence, punishment, incapacitation or rehabilitation. Depending on (3) the offender’s needs and the causes of the offence, the special conditions can include training, restoration or project-style activities. The aim and special conditions will determine (4) the duration of the undertaking. Training may be completed within one to three months, while more laborious activities may take up to 12 months. In some cases, the full two years of good behaviour may be justified.

Training orders

Training Orders are used in most areas of corporate law, particularly where the offender’s lack of knowledge and skills are seen as having contributed significantly to the offence. The order is therefore an important mechanism for rehabilitation and protects the community through the prevention of future risk and harm. This is particularly the case where offenders have little or no previous training on how to comply or have not provided adequate training to their workers.

Regulators should consider (1) the nature of the offence and whether (2) the lack of willingness, capability or competence significantly contributed to the offence. Since the needs of offenders differ, training can be tailored to cater for either (3) general and/or specific training needs. General training courses can improve general WHS management and due diligence skills, whereas more specific training can upskill staff in relevant areas of risk. Examples have included falls from heights and the safe operation of forklifts and other machinery. Training can also take the form of a (4) one-off training course/s or the establishment of an ongoing training program, depending on the needs of the offender.

The concept of training being able to increase willingness, capability and competence to comply is clear and well supported (Bonta & Andrews, 2016). However, the effectiveness of training can be limited by a number of factors: the context within which the training takes place, the motivation of the participants, the content of the training, the level of knowledge transfer and the extent to which knowledge can, given the pressures of work, be applied within the workplace (Tharenou, 2001; Davis, 2004; Fooks et al., 2007; Curado, Henriques & Ribeiro, 2015). While some argue that training must be learner-centred, participatory and hands-on to be effective at reducing incidents in the workplace (Burke et al. 2006), others argue that perhaps training can be regarded as a useful as long as participants get something out of the training — even only one thing — as that is an improvement on their initial position (Johnstone, unpubl.). It has also been argued that training can be made more effective if combined with other interventions than if applied on its own (Robson et al., 2012).

Table 1: Summary of considerations before proposing an Adverse Publicity Order to the court, including legal citation and example case law.

Table 2: Summary of considerations before proposing a Restoration Order to the court, including legal citation and example case law.

Table 3: Summary of considerations before proposing a Project Order to the court, including legal citation and example case law.

Table 4: Summary of considerations before proposing a WHS Undertaking to the court, including legal citation and example case law.

Table 5: Summary of considerations before proposing a Training Order to the court, including legal citation and example case law.

Bartels, L. (2010). An examination of the arguments for and against the use of suspended sentences. Flinders LJ, 12, 119.

Bonta, J., & Andrews, D. A. (2016). The psychology of criminal conduct. 6th edn, Routledge, London.

Burke, M. J., Sarpy, S. A., Smith-Crowe, K., Chan-Serafin, S., Salvador, R. O., & Islam, G. (2006). Relative effectiveness of worker safety and health training methods. American journal of public health, 96(2), 315-324.

Cortez, N. (2011). Adverse publicity by administrative agencies in the internet era. BYU L. Rev., 1371.

Curado, C., Henriques, P. L., & Ribeiro, S. (2015). Voluntary or mandatory enrollment in training and the motivation to transfer training. International Journal of Training and Development, 19(2), 98-109.

Davis, C. (2004). Making companies safe: what works? (p. 118). Amicus the Union.

EPA (2017) Environment Protection Authority, EPA Guidelines for seeking environmental court orders. Retrieved from https://www.epa.nsw.gov.au/licensing-and-regulation/legislation-and-compliance/policies-and-guidelines/guidelines-seeking-enviro-court-orders

Fooks, G., Bergman, D., & Rigby, B. (2007) RR607: International comparison of (a) techniques used by state bodies to obtain compliance with health and safety law and accountability for administrative and criminal offences and (b) sentences for criminal offences. HSE, UK.

Gellhorn, E. (1973). Adverse publicity by administrative agencies. Harvard Law Review, 1380-1441.

Gruner, R. S. (1993). Beyond Fines: Innovative Corporate Sentences Under Federal Sentencing Guidelines. Wash. ULQ, 71, 261.

Jamieson, S., Reeve, B., Schofield, T., & McCallum, R. (2010). OHS prosecutions: Do they deter other companies from offending?. Journal of Health, Safety and Environment, 26(3), 213-231.

Jess, G., & Price, R. (2017). Fairness in enforceable undertakings: Comparing stakeholder voices. Safety science, 94, 1-9.

Johnstone, R. (unpubl.) Project 2. Sentencing of Work Health and Safety Offenders. Report to Safe Work Australia, unpublished report.

Johnstone, R. (2003). Safety, courts and crime: Occupational safety and health prosecutions in the Magistrates’ courts. Policy and practice in health and safety, 1(1), 105-127.

Johnstone, R., & Parker, C. (2010). Enforceable Undertakings in action: Report of a roundtable discussion with Australian regulators. Available at SSRN 1551627.

Robson, L. S., Stephenson, C. M., Schulte, P. A., Amick III, B. C., Irvin, E. L., Eggerth, D. E., ... & Peters, R. H. (2012). A systematic review of the effectiveness of occupational health and safety training. Scandinavian journal of work, environment & health, 193-208.

Tharenou, P. (2001). The relationship of training motivation to participation in training and development. Journal of Occupational and Organizational Psychology, 74(5), 599-621.

Thornton, D., Gunningham, N. A., & Kagan, R. A. (2005). General deterrence and corporate environmental behavior. Law & Policy, 27(2), 262-288.

UK Sentencing Council. (2015) Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline. Retrieved from https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-Safety-Corporate-Manslaughter-Food-Safety-and-Hygiene-definitive-guideline-Web.pdf