WorkSafe’s non-prosecution decisions under scrutiny

Minister of Workplace Relations and Safety, Andrew Little, has ordered WorkSafe to seek external legal advice from Crown Law or Crown Solicitors whenever a Coroner recommends that WorkSafe consider a prosecution or reconsider its decision not to prosecute.

This position was taken following a tragic accident between a truck and a car on Desert Road in Easter 2018.  Two children in the passenger vehicle died, and one of the parents was left with a serious brain condition.

After an investigation under the Land Transport Act, the Police found that the truck driver, John Baptiste Barber of Dynes Transport, did not have the minimum rest period during the three days leading up to the crash.  He also falsified the length of time he had worked, in his logbook.

Mr Barber pleaded guilty to eight charges under the Land Transport Act – two counts of careless driving causing death, two of careless driving causing injury and four logbook offences. Dynes Transport was also convicted of two counts of charges of allowing a vehicle to be used with a logbook that was “false in a material particular”.

WorkSafe declined to lay charges against Dynes Transport under the Health and Safety at Work Act (HSWA) despite having the power to do so where fatalities occur in work-related road accidents.

In January 2020, WorkSafe declined for the second and final time to prosecute on grounds that the case did not meet its evidential threshold. This was despite investigative reports revealing that components of Mr Barber’s truck-trailers were not up to Certificate of Fitness standard and the expert witness for WorkSafe on fatigue concluding that it was “highly likely” that Mr Barber was fatigued.  The Coroner noted that Dynes Transport had had prior breaches under the HSWA and convictions for having fatigued drivers and logbook offences.

In the wake of this tragedy, the Mosaferi family appealed to Members of Parliament, the Associate Minister of Transport, Julie Anne Genter, and the Justice Minister, Andrew Little.

While the time limit to prosecute has now passed, Mr Little, now the new Workplace Minister, ordered WorkSafe to “give full consideration to [the Coroner’s] recommendations, including seeking external legal advice where possible” so that it builds “public and stakeholder confidence in the effectiveness of the health and safety regulatory system”.

In a recent briefing, Mr Little also stated that he considered there was a “growing public perception that [WorkSafe is] not doing enough”. Mr Little has indicated that he would like to work with WorkSafe to see what more can be done to improve WorkSafe’s public reputation for holding those who do harm to account, even in borderline cases where there is a 50-50 chance as to whether the prosecution will succeed.

Comment (Brad Alcorn)

Whether or not this political influence will result in more health and safety convictions remains to be seen.  However, political pressure on prosecutors to lay charges, especially where the prospects of success is finely balanced, is not something which should be encouraged.  

Brad Alcorn is a Special Counsel at Fee Langstone