The use of infringement notices in OHS law enforcement

Abstract

Infringement notices are now part of OHS law enforcement in several Australian states and territories, as well as in New Zealand. In principle these notices have the potential to favourably influence OHS performance. However, it is difficult to draw firm conclusions about effectiveness in view of limited empirical evidence as well as the considerable diversity in existing schemes. This paper raises some important legal and practical concerns which may qualify the effectiveness of infringement notices, and have implications for policy makers designing and implementing infringement notice schemes, to be applied in OHS law enforcement. The indications are that infringement notices are more suited to non-complex offences where the breach is clearly defined in law and the facts are easily verified. There is a challenge to define expiable OHS offences which are clear-cut and ambiguous but which also clearly have preventive value by virtue of a direct link to OHS risk control. There are reasons for regulators to be more cautious about applying infringement notices to offences involving decisions about .(reasonable) practicability. or the adequacy of risk management processes. There is also reason to keep the level of penalty for infringement notices under review. Current fines in Australia are low by international standards and as the principal role of infringement notices is to deter non-compliance, they need to be set at a level that does deter. This could involve a tiered system of fines where more serious and repeat breaches warrant a higher penalty. There is a series of considerations relating to consistency and transparency in decision making, and procedure for, issuing infringement notices, both to ensure fairness for recipients of notices and effectiveness of infringement notice arrangements. There is a case for OHS regulators to develop and promulgate procedural guidelines addressing key considerations including: the grounds or criteria for issuing an infringement notice, the number of offences identified on a notice (one offence per notice), the time limit within which a notice may be served, arrangements and basis for review and withdrawal of a notice, how infringement notices are used in the context of responsive enforcement and a hierarchy of enforcement measures, and especially their relationship to improvement and prohibition notices, the person to whom notices are served (drawing senior manager.s attention to OHS problems), and how records of infringement notices are used as part of the compliance history of an organisation. To protect the legal rights of recipients, infringement notice formats should clearly set out the right to seek review of a notice or contest it in court, the effect of payment and consequences of non-payment. They should also provide details of the offence and practical arrangements about payment of the fine. There should be a consistent approach whereby infringement notices, that are paid and not subject to a court hearing are not taken into account in subsequent proceedings or civil action. Finally, there is a need for further empirical studies of the use of infringement notices in Australian (and New Zealand) OHS law enforcement in order to determine more clearly the characteristics of infringement notice schemes that are most effective in deterring non-compliance with OHS law. Ultimately, the success of infringement notices depends on their ability to change the behaviour of recipients so that future injury, disease and death are prevented, and this is how they should be judged.