Australia: an opportunity missed

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The so-called harmonisation of Australia’s OHS laws, based on the Model Act adopted as the basis for New Zealand’s new legislation, was principally aimed at lifting business productivity rather than improving safety outcomes, according to an Australian lawyer and safety consultant.

Greg Smith said the harmonisation exercise was carried out because jurisdictional differences in OHS laws were seen as a heavy regulatory burden. “It was based on Victoria’s legislation, and Victoria hasn’t adopted it. Go figure.”

Smith, legal practice director with Perth-based firm STE Safety & Legal, was speaking at the Safe Site conference in Auckland, sponsored by Mayo Hardware, Blackwoods Protector, NZ Safety and SSI. He said only two percent of Australian firms operated across multiple states or territories, and in any case it was differences in how each jurisdiction’s regulator interpreted the old laws – not the laws themselves – which cost these firms money.

“Harmonisation was an enormous opportunity lost. We wasted the chance to have a real conversation about what effective health and safety looks like.”

The increase in financial penalties associated with the new legislation had led to an unhelpful focus on managing legal risk rather than injury risk, and forums designed to share incident data had been shut down for fear of prosecution.

“Should our own incident investigations be able to be used in legal cases against us? We never had that conversation.”

Smith warned the change in legislation in Australia had imposed an administrative burden on businesses, which had to dedicate a few weeks to updating their documentation from a compliance perspective. While that took people’s eyes off the ball, worse was the scaremongering from some OHS consultants suggesting managers could be jailed. In fact, he said, no one has been jailed for safety breaches since Robens-styled legislation was introduced in Australia in the 1980s.

He also took a swipe at the growth in what he called the “safe work method statement industry”, a concept originally introduced for high-risk tasks in the construction sector. “There are now consultants saying you need a SWMS for everything you do. Beware of that sort of crap.”

Similarly, people who suggested the Model Act’s “reasonably practicable” test was a significantly higher hurdle than its predecessor were talking “alarmist nonsense”.

“It’s professionally embarrassing. If someone knocks on your door and says the sky is falling and you have to do a whole lot of things differently, it’s probably not true.”

In the Australian experience, he said, it has been the approach taken by the various jurisdictions’ regulators which has had more alphat than the legislation, old and new. To the extent that the new legislation could make a difference, he said, it will be in the technical details within its new supporting regulations.

“I don’t want to rain on anyone’s parade, but essentially there’s nothing new [in the new legislation]. It’s just that since the 1980s the principles have not been well understood and applied. Prosecutions succeed because organisations are so terribly poor at health and safety.”

Source: Alert24 2/10/15, www.safeguard.co.nz