In a recent case in the industrial court of NSW, Australian Standards have been used to determine the objective seriousness of an offence. This is an important article from King & Wood Mallesons (repeated here in full) clearly explaining how Australian Standards can and do affect how the courts treat some offences. Of particular note in this case, is that the courts referred to the Australian Standards to demonstrate that certain risks were reasonably foreseeable.
The Industrial Court of New South Wales has reiterated the importance of Australian Standards in mitigating risk and providing business operators with identifiable safety measures available to them. Awareness and compliance with Australian Standards applicable to an operator’s business will not only mitigate risk, but the information contained in the Australian Standards is relevant to assessing the objective seriousness of an offence. The objective seriousness of an offence is the principal factor to consider in sentencing under occupational health and safety legislation. It is the business operator’s responsibility to be aware of and conform to applicable Australian Standards. This is a pro-active non-delegable duty.
We suggest that the model Codes of Practice under harmonised Work Health and Safety laws will be treated in a similar way by the Courts, particularly given they carry even more weight than Australian Standards under those laws.
This decision arose from a guilty plea to a prosecution under section 8(2) of the former Occupational Health and Safety Act 2000 (NSW). The defendant operated a business involving the hiring of go-karts to the general public, which were driven on a specifically designed track at the premises. The offence arose from a fatal incident in which unrestrained fabric from a hijab worn by the driver of a go-kart became entangled in moving parts of the go-kart she was driving.
Two Australian Standards applied to the business of the defendant, AS 3533.1 - 2009 Amusement rides and devices, Part 1: Design and construction and AS 3533.2 - 2009 Amusement rides and devices, Part 2: Operation and maintenance. Relevant to the circumstances of the incident, AS 3533.1 provided that go-kart riders were ‘not to wear loose fitting clothing or accessories that could become entangled in any part of the kart’ and AS 3533.2 advised that persons with such clothing, accessories or unrestrained hair were ‘not permitted to participate where there is a risk of entanglement’.
Wearing a loose garment whilst go-karting presented a risk of the garment becoming caught in the moving parts and potentially causing physical injury to the wearer. The hijab worn during the go-karting was loose and unrestrained and the employee manager took no steps to manage the risk caused by the loose clothing.
In sentencing the defendant, the Industrial Court of New South Wales found that the risk could have been avoided through the defendant taking specific measures within his control. It was found that there were no systems in place prior to the incident intended to eliminate or avoid the risk. The defendant submitted that at the time of the incident he was unaware that the relevant Australian Standards existed, though accepted that as operator of the go-karting business it was his responsibility to be aware of and conform to the applicable standards. The defendant had the responsibility as owner and operator of the go-karting business to ensure the safety of the workplace; this could not be delegated to employees.
It was accepted that the Australian Standards showed that the risk was reasonably foreseeable and that there were a range of easily identifiable, simple remedial measures available to the defendant prior to the incident which would have removed the risk.
The objective seriousness of an offence is a primary factor in sentencing for safety offences. The existence of a reasonably foreseeable risk and the availability of simple and straightforward remedial measures, such as those identified in the Australian Standards that would have avoided or minimised the risk are factors which increase the objective seriousness of an offence.
The defendant was convicted and fined the sum of $32,000 and ordered to pay the costs of the prosecutor.
Business operators should take active steps to be aware of and comply with the Australian Standards (and Codes of Practice) applicable to their business – it is not enough to simply comply with Acts and Regulations. Whilst the failure to conform to applicable Australian Standards will not of itself be determinative of guilt, the standards will be relevant when assessing the objective seriousness of an offence. The existence of a reasonably foreseeable risk and the availability of simple and straightforward remedial measures that would have avoided or minimised the risk, such as those provided by relevant Australian Standards, are factors that increase the objective seriousness of an offence.