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Final the Effect of OHS Regulator Intervention on the Australian Army The effect of occupational health and safety regulator intervention on the Australian Army Author Nestor, Meredith Published 2020-09-03 Thesis Type Thesis (Masters) School School of Hum, Lang & Soc Sc DOI https://doi.org/10.25904/1912/3947 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/397588 Griffith Research Online https://research-repository.griffith.edu.au The effect of occupational health and safety regulator intervention on the Australian Army by Meredith K. Nestor Graduate Diploma in Defence Management (University of Canberra) Graduate Certificate in Safety Leadership (Griffith University) School of Humanities, Languages and Social Science Griffith University A thesis submitted in fulfilment of the requirements of the degree of Master of Arts Research September 2019 PRELIMINARIES Abstract… What is the effect of occupational health and safety regulator intervention on the Australian Army? Purpose: The purpose of this research was to investigate how Regulator intervention influenced the Australian Army’s behavioural compliance, after changes to OHS legislation, and how outcome performance could be measured. Military members are trained for brinkmanship, to positively navigate the edge between recklessness and risk avoidance, sometimes with catastrophic consequences. The removal of Crown exemption from Commonwealth OHS legislation in 2004 was followed by a series of prosecutions of the Australian Defence Force (ADF), particularly the Australian Army, for death and serious injury in training. This provided a unique opportunity to study what interventions are most effective, how regulator intervention prevents harm, and how that could be measured in a high-risk work environment. Methods: A literature review identified the most effective interventions were new OHS regulations and regulatory inspections. A model for regulatory intervention was developed, showing regulatory and contextual factors that influence a decision to comply. A case study of the death of Trooper Angus Lawrence from heat stroke in 2004 was undertaken, to determine which factors most influenced behavioural compliance in the Army. The model had to be redesigned into a matrix to show how factors overlap in the real world. Available data sets were reviewed to assess if changes in incident and injury rates could be linked to intervention, and provide a performance measure for the Regulator. Results: Combined regulatory factors had more influence than contextual factors. The most significant regulatory factors affecting decision making were reduced awareness and perception of relevance, which contributed to a reduced understanding of how to comply at the operational level of decision-making. Non-regulatory contextual factors were less evident, but more influential at the tactical level, and could be improved by Regulator communication penetrating the Army workplace. Comcare lacked a network to communicate external legislative requirements because ADF members are exempt from consultative arrangements which undermined a key objective of the OHS Act. i The absence of trained uniformed Health and Safety Representatives in the workplace, empowered to stop work, was a key factor. Fear of prosecution and penalties were not influential in decision making. Ability and willingness to comply became evident after a breach was detected and understood. Comcare did not have access to reliable injury data for the ADF or Army because rehabilitation and compensation arrangements were historically complicated, and Defence members are not included in key national data sets. The frequency and severity of data on heat illness in the Defence incident data base was not considered reliable, therefore the effect of changes to the OHS Act on performance outcomes could not be measured. Conclusions: The effect of OHS regulator intervention on the Australian Army could not be reliably measured. Changes to the OHS Act in 2004 were not associated with improvements in regulatory administration or behavioural compliance in the Army, and regulator performance could not be reliably measured. This thesis questions if Defence Declarations and Exemptions from consultative arrangements are still relevant, or if they create unintended liability for military commanders. ii Statement of Originality This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person, except where due reference is made in the thesis itself. Signed by Meredith K. Nestor 5 September 2019 iii Table of Contents PRELIMINARIES ............................................................................................................... i Abstract… ............................................................................................................................. i Statement of Originality ..................................................................................................... iii Table of Contents................................................................................................................ iv List of Tables ...................................................................................................................... ix List of Figures ..................................................................................................................... ix Abbreviations and Glossary of Terms ................................................................................ x Acknowledgements ........................................................................................................... xiii Disclaimer ......................................................................................................................... xiii CHAPTER 1: INTRODUCTION ...................................................................................... 1 1.1 Background ............................................................................................................ 1 1.2 The Australian Defence Force ................................................................................ 3 1.3 Outline of the Thesis .............................................................................................. 7 CHAPTER 2: LITERATURE REVIEW ........................................................................... 9 2.1 Purpose .................................................................................................................. 9 2.2 How does OHS Regulation Work in Australia? ...................................................... 9 2.2.1 State and Territory OHS Regulation ...................................................................... 9 2.2.2 OHS Regulation and the Military ........................................................................ 10 2.2.3 Introduction of Commonwealth OHS Regulation ................................................ 11 2.2.4 Defence Declarations and Exemptions for Defence Related Purposes .................. 15 2.2.5 The Shield of the Crown ...................................................................................... 18 2.2.6 ADF Investigations ............................................................................................. 18 2.2.7 Crown Immunity Removed from Commonwealth OHS Act ................................ 22 2.2.8 Risk Management ................................................................................................ 23 2.2.9 Harmonisation of OHS/WHS Legislation ............................................................ 24 iv 2.3 What types of OHS Regulator interventions are most effective? ........................... 24 2.3.1 Types of Interventions ......................................................................................... 24 2.3.2 Regulation ........................................................................................................... 25 2.3.3 SWA Explanatory Models ................................................................................... 27 2.3.4 Prosecution.......................................................................................................... 29 2.3.5 Codes of Practice................................................................................................. 31 2.3.6 Improvement and Enforcement Notices ............................................................... 31 2.3.7 Inspections .......................................................................................................... 32 2.4 How does the OHS Regulator measure success?................................................... 34 2.4.1 Worker’s Compensation Statistics. ...................................................................... 34 2.4.2 National OHS Statistics ....................................................................................... 34 2.4.3 Safe Work Australia Statistics ............................................................................. 35 2.4.4 Comcare Statistics ............................................................................................... 36 2.5 What was the effect of OHS Regulator intervention on the Australian Army? ...... 37 2.5.1 Post-Accident Prosecution ................................................................................... 37 2.5.2 OHS Regulator Performance ............................................................................... 41 2.6 Summary.............................................................................................................
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