AUSTRALIAN INSTITUTE OF CRIMINOLOGY

FROM ADVERSITY TO OPPORTUNITY:A CASE STUDY OF THE IMPACT OF PUBLIC

INTEREST GROUPS ON ENFORCEMENTOF SAFETY LEGISLATION

Robert Seljak, General ManagerSara Pope, Senior Policy Officer

Division of Workplace Health and Safety,Department of Industrial Relations Queensland

Paper presented at theCurrent Issues In Regulation: Enforcement and Compliance Conferenceconvened by the Australian Institute of Criminology in conjunction with

the Regulatory Institutions Network, RSSS, Australian National Universityand the Division of Business and Enterprise, University of South Australia

and held in Melbourne, 2-3 September 2002

Introduction

This case study will outline an example of the use of public accountability mechanisms to achievesignificant changes to the enforcement of workplace health and safety legislation in Queensland.

The study will describe complaints made to the Queensland Ombudsman, the nature of theOmbudsman’s investigation and recommendations and the response by the QueenslandGovernment. The case study will conclude by showing how adverse findings can be used byregulatory agencies to create opportunities for renewal and improvement.

The Electrocution Project

In January 2000 the Parliamentary Commissioner for Administrative Investigations - theQueensland Ombudsman - commenced an investigation project into a series of electrocutions inQueensland during the period 1995 to 1999. The complaints encompassed thirteen fatalities arisingfrom ten separate incidents. In essence, the complaints were about how those fatalities wereinvestigated and dealt with by two regulatory agencies. Due to the number of complaints and theirseriousness the Ombudsman set up the Electrocution Project.

The Electrocution Project is a ten-part project delivering findings on the conduct of investigationsby the Division of Workplace Health and Safety and the Electrical Safety Office.1 As at the time ofwriting, four final reports were issued, and a number of preliminary reports were being considered.The project is expected to be completed by the end of 2002.

Complaints to the Ombudsman

The Queensland Ombudsman received a series of formal complaints from the families ofelectrocution victims regarding the manner in which their cases were investigated by the Division ofWorkplace Health and Safety (DWHS) and the Electrical Safety Office (ESO). Under theprovisions of the Ombudsman Act 2001, the Ombudsman is empowered to investigate complaints ofmaladministration in the Queensland public service.2 The complaints were made by individuals, insome cases with the support of a small lobby group, Group Requiring Action for Victims of ElectricShock (GRAVES).

Incidents and Jurisdictions

The thirteen electrocution fatalities involved predominantly young workers or members of thepublic. Five fatalities resulted from fallen powerlines; four from contact with overhead powerlines;three from faulty or energised appliances/equipment and one from working on live parts.

The nature of the incidents meant that in some cases there was some doubt in the view of theregulatory agencies as to what incidents constituted workplace activities and what work constitutedelectrical work. Consequently it was also unclear which jurisdiction was primarily responsible forinvestigation - the Division of Workplace Health and Safety or the Electrical Safety Office. Inaddition, all incidents required Queensland Police intervention, although the Queensland PoliceService was not the subject of any of the complaints made to the Ombudsman.

1 At the time of the incidents the Division of Workplace Health and Safety was part of the Department of Training and IndustrialRelations, and the Electrical Safety Office was part of the Department of Mines and Energy.2 The Ombudsman Act 2001 repealed and replaced the Parliamentary Commissioner Act 1974. The Act commenced operation on 3December 2001.

Ombudsman Key Findings

The Ombudsman’s reports, to date, have been highly critical of the investigations conducted by theDivision of Workplace Health and Safety and the Electrical Safety Office.

Broadly, findings related to:

• Inadequate, fragmented and uncoordinated investigative processes

• Inadequate exploration of reasonable and obvious avenues of enquiry

• Determination of prosecution prospects by unqualified personnel and based on deficientfindings

• Limited or lack of appropriate follow-up of safety standards with employer

• Mismanagement of information released to the media

• Inappropriate and inadequate provision of information and contact with relatives of victim.

Moreover, a common theme from the findings was the lack of coordinated and complementaryapproach to electrical safety investigations between the Division and the Electrical Safety Office.

Ombudsman Recommendations

The Ombudsman made a number of recommendations in relation to workplace health and safetyand electrical safety in Queensland. Not surprisingly many related to improvements in the qualityand coordination of investigations across government regulatory agencies.

Specifically recommendations were made in relation to the following:

• A comprehensive management and strategic review of the Division of Workplace Health andSafety and the Electrical Safety Office with the Terms of Reference set in consultation with theOmbudsman. The review to consider:

§ Resources to adequately enforce the respective legislation

§ Investigation methodologies and processes

§ Formal staff training and guidance

§ Management systems and processes employed to monitor efficiency and effectiveness andinternal communication and sharing of information on operations and performance

§ Competency of existing staff in performing investigations

§ Awareness and auditing of internal quality systems

• The development and implementation of appropriate Memoranda of Understanding betweenESO, the Division and Queensland Police addressing areas of potential overlap and duplicationin investigations.

• Consideration to the concept of a single agency responsible for the investigation of electricalincidents in Queensland

• Specialised training be provided for staff to improve the management of contact with relativesof victims of incidents

• Review of the penalty provisions of the Electricity Act 1994 and Regulation to determine theirappropriateness

• Review of the current media policy and procedure on issues relating to investigations

• Disciplinary action be taken against staff involved in the mismanagement of the investigations

• The development and implementation of a process for managing complaints from the public inrelation to the handling of investigations.

(Parliamentary Commissioner for Administrative Investigations 2001-02)

Government Response

All recommendations from the Electrocution Project were considered by the newly elected Ministerfor Industrial Relations3 the Honourable Gordon Nuttall. During this period, the Minister wasapproached by GRAVES on a number of occasions. Subsequently, in April 2001 Minister Nuttallcommissioned an independent review of the Division of Workplace Health and Safety and theElectrical Safety Office.

Senior staff from the Ombudsman office, including the Assistant Commissioner were included onthe reference group to the Review, as were other key stakeholders.

The final report of the Review was considered in August 2001. A total of 48 recommendationsrelating to both agencies were made. The key recommendations included:

• The development of stand-alone electrical safety legislation

• The creation of an electrical safety regulator and an electrical safety advisory board accountableto the Minister, as part of the legislative process

• Improvements to investigation processes to ensure a single approach to the investigation of allelectrical fatalities and serious incidents

• The establishment of a dedicated legal unit to ensure early intervention by legal officers intocomplex investigations

• New media policy and protocol for dealing with relatives of workplace accident victims

• A review of the Workplace Health and Safety Act 1995 to ensure that it reflects changes in thelabour market and contemporary regulatory needs

A report on the implementation of each of these main recommendations follows.

Electrical Safety legislation and electrical safety regulator

The Queensland Government recently introduced the Electrical Safety Bill 2002 into Parliament.The Bill can be viewed at www.eso.qld.gov.au/legislation/index.htm. The Bill imposes obligationson persons who may affect the electrical safety of others by their acts or omissions. This includeselectricity entities, employers, self-employed persons, manufacturers of electrical equipment,suppliers of electrical equipment and so on. The Bill provides for an expanded definition of“electrical work” taking into consideration comments made in the Ombudsman’s reports.

The Bill also establishes a Commissioner for Electrical Safety to advise the Minister on electricalsafety matters and to manage the activities of the Electrical Safety Board and its committees. Underthe Bill, the Committees include the Electrical Licensing Committee, the Electrical SafetyEducation Committee and the Electrical Equipment Committee.

3 Following Machinery of Government changes after the 2001 Queensland state election, the Division of Workplace Health andSafety and Electrical Safety Office fall under the Queensland Department of Industrial Relations.

The Bill is designed to be complementary to the Workplace Health and Safety Act 1995 so thatthere is no overlap or duplication between the two pieces of legislation. Electrical safety issues atworkplaces will continue to be administered by Workplace Health and Safety inspectorate.

Other specialist functions (electrical licensing issues, safety management systems for electricityentities, quality of electrical work, etc.) will be administered by a new electrical safety inspectorate,comprising 22 field-based inspectors. They will work closely with Workplace Health and Safetyinspectors in ensuring compliance with electrical safety legislation. Both inspectorates fall underone Government Department within the portfolio of the Minister for Industrial Relations.

Investigations

Investigation processes have been improved to ensure all serious electrical incidents areinvestigated by one agency, and that all investigations are conducted in a timely and professionalmanner. Investigation procedures and processes have been developed following extensiveconsultation with external organizations, including inter-state enforcement agencies. Specialistinvestigators have been appointed in all regions of Queensland. These investigators have receivedintensive training, involving mock accident scenes and role plays. They hold dual appointmentsunder both workplace health and safety and electrical safety legislation. All other inspectors havereceived or are undergoing basic investigation training to ensure they conduct their activities in away that may be used to support a future investigation if this is required.

Regional Investigation Managers have been appointed in six regions covering Queensland. Thesemanagers ensure that the process and standard of investigations are conducted in a timely andprofessional manner. All investigators have direct line accountability to the Regional InvestigationManagers. Regional investigation managers have responsibility for the coordination, planning andoversight of investigations. Through their training and experience they are able to direct aninvestigation to ensure the most productive use of resources for the optimum result. They havedirect access to the legal unit thus providing a quick reference point for the direction and conduct ofthe investigation.

Legal and Prosecution Unit

A separate and better-resourced Legal and Prosecutions unit has been set up within the Department.This Unit provides advice on workplace health and safety and electrical safety investigations andprosecutions. For instance, all prosecutions arising from electrical fatalities irrespective of locationare now conducted centrally through this unit. The unit is headed by a Director, and includessolicitors, barristers and para-legal staff. Cases are considered on an individual basis to determine ifthey are to briefed to outside Counsel. The number of workplace health and safety prosecutions andthe level of fines awarded by the Courts have increased 300% since the time of the incidentsinvestigated by the Ombudsman.

Media Policy and Relatives of Victims

A new media policy has been established to ensure all media contacts occur through a central pointto ensure consistency and accuracy. A new procedure has been implemented which sets out theprotocols for Departmental officers in communicating sensitively with the next of kin of thosekilled at work. This is supported by a new policy that seeks to ensure appropriate consultation withgrieving relatives throughout the investigation process.

Review of Workplace Health and Safety Act

The Minister for Industrial Relations announced a review of the current Workplace Health andSafety Act 1995 to ensure that it reflects contemporary regulatory issues. A series of Issues Papershave been released for public comment. There is a quick link to the Issues Papers that is located onthe Workplace Health and Safety web site (www.whs.qld.gov.au). The Issues Papers cover suchtopics as obligation holders; consultation, training and education; penalty regime; alternativesanctions; and powers of inspectors. Consultation with key stakeholders on these issues iscontinuing.

Conclusion

The Electrocution Project has highlighted the need for substantial improvements in ensuringaccountable and responsible enforcement of health and safety legislation in Queensland. The longerterm benefits of such scrutiny by an external agency has provided a platform for establishing bestpractice enforcement in Queensland workplace health and safety and electrical safety. The benefitsof such an approach have already been demonstrated through increased efficiency in the conductand completion of investigations and increasingly successful prosecution outcomes.