The role of the judiciary in occupational health and safety prosecutions: institutional processes and the production of deterrence

Drawing on interviews with judicial officers in two Australian states, this article examines the role of judges in sentencing occupational health and safety offenders. Specifically, it focuses on the deterrent impact of occupational health and safety prosecutions, including judges' understanding of deterrence and the judicial role in deterring serious breaches of occupational health and safety legislation. Judges thought that occupational health and safety prosecutions had some deterrent impact on prosecuted offenders, but were sceptical as to whether prosecutions led to lasting improvements in workplace safety, both in relation to the prosecuted offender and the wider community. Judges' scepticism related to the fact that they viewed deterrence as a complex process involving a range of social institutions, including occupational health and safety regulators and the media. Further, the judiciary's influence over sentencing outcomes was constrained by key elements of the judicial role, including the requirement that judges remain impartial and detached from other actors in the prosecution process. However, judges do play an important role in preventing workplace deaths and injuries, especially in relation to the constitutive or communicative effects of prosecution. By sentencing offenders, the judiciary acts as a key component in institutional processes that construct employers as bearing primary responsibility for the prevention of workplace deaths and injuries.

Source : McCallum R, Schofield T, Reeve B. J. Ind. Relat. 2012; 54(5): 688-706.

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