Hopkins, Andrew
Description
This is truly a working paper, a step along the way in a larger project that is intended to culminate in a book on the issue of individual culpability for corporate OHS offences. The paper is therefore not a complete account of the issues and is more in the nature of an empirical segment of the larger work. The broader context will first be sketched, very briefly, to situate the present paper. Two significant developments are occurring in Australia and overseas in relation to OHS offences....[Show more] The first is the increasing resort to the prosecution of senior company officers, as well as the corporate entity, under due diligence provisions of occupational health and safety legislation. That is the focus of this paper. The second is the rise of industrial manslaughter and workplace fatalities legislation aimed at individual directors or managers. This is generally seen as a way of dealing with exceptional cases of “rogue” employers who are reckless with respect to the welfare of their employees, people whose culpability is hardly in doubt. That is not the subject of this paper, although it will be dealt with in the final work. In much Australian OHS law now, where a company is proved to have committed an offence, its senior officers are deemed to have committed the same offence, subject to various qualifications. The purpose of punishment in these circumstances is unclear. On one view the purpose is to provide an incentive for senior officers to attend more diligently to their OHS responsibilities. This is a version of the deterrence justification – what is being deterred is insufficient attention to OHS. Another justification is that these individuals are personally culpable and that they deserve to be punished. These two justifications are very different in nature. Deterrence is a consequentialist justification; and immediately gives rise to an empirical question – does punishment have the intended effect? Desert is a moral idea, more a matter for debate and discussion than empirical evaluation. This paper is concerned with the prosecutions arising out the Gretley mine disaster in 1996. It examines the findings about the culpability of the individuals and corporations prosecuted. The paper contains two draft chapters from the proposed book. Comments and corrections are invited.
