This book reports on an empirically-based study of the manner in which the Magistrates' Courts in Victoria, construct occupational health and safety (OHS) issues when hearing prosecutions for offences under the Victorian OHS legislation.
Prosecution has always been a controversial element in the enforcement armoury of OHS regulators, but at the same time it has long been argued that the low level of fines imposed by courts has had an important chilling effect on the OHS inspectorate's enforcement approaches, and on the impact of OHS legislation.
Using a range of empirical research methods, including three samples of OHS prosecutions carried out in the Victorian Magistrates' Courts, Professor Johnstone shows how courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court. He argues that OHS offences are constructed by focusing on "events", in most cases incidents resulting in injury or death. This "event-focus" ensures that the attention of the parties is drawn to the details of the incident, and away from the broader context of the event. During the court-based sentencing process defence counsel is able to adopt a range of techniques which isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident.
Table of Contents
Aims, Assumptions and Methods
The Victorian Occupational Health and Safety Offences
Inspection and Investigation
Enforcement Decisions and the Construction of Offences
Finding the Charges Proved: Contested and Uncontested Cases
The Sentencing Framework
The Dynamics of Sentencing
Recent Developments: Countering Pulverisation?
Conclusion: The Constraints of the Form of the Criminal Law