Regulation by stealth: Codes of practice under harmonised Work Health and Safety legislation

Abstract

This article explores how codes of practice might best be designed and implemented to realise their potential to do much of the 'heavy lifting' under WHS legislation, with a focus on the Australian coal mining industry. It identifies various deficiencies in the design and implementation of codes under Australia's harmonising WHS legislation, including a failure to design codes of a type or types that are best suited to their industry specific context; and a failure to implement codes appropriately. In particular it demonstrates that there is a large gap between theory and practice and that far from providing a form of authoritative guidance, codes of practice, in the hands of the mines inspectorates, more frequently become a form of regulation by stealth. Although arguments about the relative merits of different types of standards and the most appropriate type of implementation and enforcement are made in a specific context, they resonate for regulatory theory and design across the social spectrum. The article concludes by identifying various reforms that will be needed if codes are to fulfil their promise as a central plank of an effective and efficient WHS regime.