2017 Visions Conference Presentation Presented by Alan Girle

1. Police Prosecutions
Presented by Alan Girle, Partner

2. What is changing?

3.  Law
 Case studies
 What does it mean for you
 Solutions
What we’ll cover

4.  Work Health and Safety Act 2011 (Qld)
 Criminal Code Act 1899 (Qld)
 Electrical Safety Act 2002 (Qld)
 Heavy Vehicle National Law Act 2012 (Qld)
 Transport Operations (Marine Safety) Act 1994 (Qld)
 Coal Mining Safety and Health Act 1999 (Qld)
 Mining & Quarrying Safety and Health Act 1999 (Qld)
 Petroleum and Gas (Production and Safety) Act 2004 (Qld)
 Transport (Rail Safety) Act 2010 (Qld)
 Civil Aviation Act 1988 (Qld)
 Australian Maritime Safety Authority Act 1999 (Qld)
Safety legislation

5.  Work Health and Safety Act 2011 (Qld)
 Criminal Code Act 1899 (Qld)
 Electrical Safety Act 2002 (Qld)
 Heavy Vehicle National Law Act 2012 (Qld)
 Transport Operations (Marine Safety) Act 1994 (Qld)
 Coal Mining Safety and Health Act 1999 (Qld)
 Mining & Quarrying Safety and Health Act 1999 (Qld)
 Petroleum and Gas (Production and Safety) Act 2004 (Qld)
 Transport (Rail Safety) Act 2010 (Qld)
 Civil Aviation Act 1988 (Qld)
 Australian Maritime Safety Authority Act 1999 (Qld)
Safety legislation

6.  Queensland Police Service
 Workplace Health and Safety Queensland
 Department of National Resources and Mines
 National Heavy Vehicle Regulation
 Department of Transport and Main Roads
 Civil Aviation Safety Authority
 Australian Maritime Safety Authority
 Office of the State Coroner
Regulators

7.  Work Health and Safety Act 2011 (Qld)
 Criminal Code Act 1899 (Qld)
 Electrical Safety Act 2002 (Qld)
 Heavy Vehicle National Law Act 2012 (Qld)
 Transport Operations (Marine Safety) Act 1994 (Qld)
 Coal Mining Safety and Health Act 1999 (Qld)
 Mining & Quarrying Safety and Health Act 1999 (Qld)
 Petroleum and Gas (Production and Safety) Act 2004 (Qld)
 Transport (Rail Safety) Act 2010 (Qld)
 Civil Aviation Act 1988 (Qld)
 Australian Maritime Safety Authority Act 1999 (Qld)
Safety legislation

8.  Queensland Police Service
 Workplace Health and Safety Queensland
 Department of National Resources and Mines
 National Heavy Vehicle Regulation
 Department of Transport and Main Roads
 Civil Aviation Safety Authority
 Australian Maritime Safety Authority
 Office of the State Coroner
Regulators

9. Regulatory trap
WHSQ “National Compliance and
Enforcement Policy Pyramid”
Based on WHSQ’s 2017 Discussion Paper for Tim Lyons review

10. Regulatory trap
WHSQ “National Compliance and Enforcement Policy Pyramid”
“The regulatory pyramid represents a proportional approach to the application of enforcement
tools and shows that, as a regulator escalates up the pyramid, the regulatory strategy
intensifies from persuasion through to sanctions of increasing severity. The premise behind the
regulatory pyramid is that where an individual being regulated is being cooperative, the
regulator in turn should attempt to achieve compliance through cooperative ‘persuasive’
measures. Conversely, where an individual is being uncooperative the regulator should escalate
through the pyramid until punitive sanctions are required thus creating a framework where
refusal to comply will result in increasingly severe enforcement action. This approach is not
intended to suggest that enforcement and compliance action should always commence with
persuasive measures, but rather it acknowledges that more often than not compliance can be
achieved through cooperative measures.”
WHSQ’s 2017 Discussion Paper for Tim Lyons review

11. Regulatory trap
WHSQ Enforcement Pyramid
Based on Safe Work Australia
Comparative Performance Monitoring Report 18th Ed 2016

12. Regulatory trap
WHSQ Enforcement Pyramid

13.  Queensland Police Service
 Workplace Health and Safety Queensland
 Department of National Resources and Mines
 National Heavy Vehicle Regulation
 Department of Transport and Main Roads
 Civil Aviation Safety Authority
 Australian Maritime Safety Authority
 Office of the State Coroner
Regulators

14.  Work Health and Safety Act 2011 (Qld)
 Criminal Code Act 1899 (Qld)
 Electrical Safety Act 2002 (Qld)
 Heavy Vehicle National Law Act 2012 (Qld)
 Transport Operations (Marine Safety) Act 1994 (Qld)
 Coal Mining Safety and Health Act 1999 (Qld)
 Mining & Quarrying Safety and Health Act 1999 (Qld)
 Petroleum and Gas (Production and Safety) Act 2004 (Qld)
 Transport (Rail Safety) Act 2010 (Qld)
 Civil Aviation Act 1988 (Qld)
 Australian Maritime Safety Authority Act 1999 (Qld)
Safety legislation

15. Unlawful Killing
Criminal Code Act 1899 (Qld):
 Section 286 – Duty of person who has care of [worker aged under 16]
 Section 288 – Duty of persons doing dangerous acts
 Section 289 – Duty of persons in charge of dangerous things
 Section 290 – Duty to do certain acts
 Section 291 – Killing of a human being unlawful
 Section 300 – Unlawful homicide

16. Unlawful Killing
Section 289 – Duty of persons in charge of dangerous things
It is the duty of every person who has in the person’s charge or under the person’s control
anything, whether living or inanimate, and whether moving or stationary,
of such a nature that, in the absence of care or precaution in its use or management,
the life, safety, or health, of any person may be endangered,
to use reasonable care and take reasonable precautions to avoid such danger,
and the person is held to have caused any consequences
which result to the life or health of any person
by reason of any omission to perform that duty.

17. Unlawful Killing
Section 289 – Duty of persons in charge of dangerous things
It is the duty of every person who has in the person’s charge or under the person’s control
anything, whether living or inanimate, and whether moving or stationary,
of such a nature that, in the absence of care or precaution in its use or management,
the life, safety, or health, of any person may be endangered,
to use reasonable care and take reasonable precautions to avoid such danger,
and the person is held to have caused any consequences
which result to the life or health of any person
by reason of any omission to perform that duty.

18. Manslaughter

19. Criminal Code:
 Section 310 : Any person who commits the crime of
manslaughter is liable to imprisonment for life
WHS Act:
 Category 1 offence:
• committed by an individual (other than as a PCBU or officer) = 3,000
penalty units ($300,000.00) or 5 years imprisonment
Penalties

20. Criminal Code:
 Section 310 : Any person who commits the crime of
manslaughter is liable to imprisonment for life
WHS Act:
 Category 1 offence:
• committed by an individual (other than as a PCBU or officer) = 3,000
penalty units ($300,000.00) or 5 years imprisonment
Penalties

23. Why?

24.  Limited rules of evidence and procedure
• Unpredictable
• Difficult to control
• Expensive
 Open court
• Media free to report
 Coroner’s recommendation
• Fresh Prosecutions
• Regulators reconsidering options
Coronial Inquests - implications

25. “On the evidence presented at the inquest I make the following referrals:-
a. that Mr Nathan Day be referred to the Queensland Police Service to
investigate whether there is sufficient available evidence to justify a
prosecution under the Criminal Code…
b. that Mr Nathan Day be referred to the Director of Public Prosecutions to
investigate whether there is sufficient evidence to justify a prosecution for
perjury in the evidence that he gave at the inquest …
e. that the Office of Fair and Safe Work Queensland investigate whether any
new, or further, charge can properly be instigated against Mr Day personally
arising out of the construction wiring which he solely undertook….”
Coronial Inquests - Jason Garrels

26. Coronial Inquests - implications

27. What should you do?
To stay on top of the emerging changes

28.  Encourage clients to ensure that workers and others are safe
 Adopt a risk management approach
 Document safety policies, procedures and systems
 Keep records of the good work done by the business
 Have periodic audits to assess performance
 Encourage officers of the business to exercise due diligence
 Keep records of the actions of officers to exercise due diligence
 Keep records of officer’s decision making to demonstrate safety in action
 Have periodic audits to assess performance
 Develop a safety net in case things go wrong
Same overall approach

29. Your safety net

30. Cases the police will leave alone:
 Non-fatal injuries in workplace settings
 Executives in larger corporations
 People not physically at the scene
Cases the police might focus on:
 Fatalities
 Where it looks like there was gross negligence
 Where the next of kin and extended family demand action
 Where the Coroner recommends action
 Where the Premier requests action
Safety net – Police

31.  Are you prepared for a police investigation?
 Do you have an incident response manual?
 Does your insurance cover police prosecutions?
Safety net – What should you do?

32.  Rights
o Silence
o Notes
o Lawyer
o Not to go to the station for questioning
 Obligations
o Name, address and age
o Arrest and detention without charges
 Practical considerations
o Secret recordings
o Arrest
o Leaving the country
Safety net – Rights and Obligations

33. Do you have an incident response manual?
 Rights and obligations
 Family and next of kin of the deceased
 Legal professional privilege
 Incident notification
 Internal investigation
 Separate representation for interviews of employees
 Privacy
 Media management
Safety net – Incident Response Manual

34.  Types of insurance:
o Directors and Officers insurance policy
o Management liability policy
o Statutory liability policy
 The detail of the policy:
o Extent of cover – fine, legal costs, compensation orders, PR costs
o When, how and to what extent does the policy respond?
o Deductible
o Right to choose your own lawyer
o Exclusions
 Broker:
o Proper discussion
o Ability to influence an insurer
Safety net – Insurance

35. Thank You
Alan Girle, Partner
0410 451 846