Are we really going to talk about the law and prosecutions on this podcast, with people like you? Yes – and I hope it surprises you for the reasons it surprised me.

Hey, it’s Andrew, and this is Safety on Tap.

Since you’re listening in, you must be a leader wanting to grow yourself and drastically improve health and safety along the way. Welcome to you, you’re in the right place. If this is your first time listening in, thanks for joining us and well done for trying something different to improve! And of course welcome back to all of you wonderful regular listeners.

My guest today is not backwards in coming forwards. Sue Bottrell is a unique kind of person in our space, one of the few who has experience spanning in-house safety roles, consulting, and on top of that is a lawyer practicing in OHS law.

 

I think it’s helpful for me to give you some background on why and how I say yes to conversations on this podcast. Long time listeners will know that, consistent with my mission to help you grow and improve health and safety performance, I don’t spend a lot of time talking about the law. That comes from a place, a belief if you like, that increasing our focus on the law, compliance, penalties etc won’t help us grow and drastically improve health and safety. So my starting point, is not being super enthused about the law – it’s not unimportant, it’s just better placed on someone else’s podcast not this one and for an audience like you.

 

Next, lots of people approach me to come on the podcast. I say no to almost all of them, after I ask questions like this: what do you know about this podcast, this audience, and what value will you bring to them? These questions quickly weed out the self-promoters and egotists.

 

So when Sue, safety practitioner and lawyer, comes to me and says she and I should have a conversation with you about the importance of prosecutions for safety breaches, I must admit I was less than enthused. But when I asked my few probing questions, when I said to Sue “I dunno, convince me”, it didn’t take long for me to say yes. I surprised myself. Sue opened up a train of thought which was new to me, relevant to me, and compelling. And that is growth, that fit the bill.

 

I wonder what it will do for you.

 

Now as usual, none of this constitutes legal advice, which as you’ll hear, isn’t much of what this discussion is about. It’s not about legal advice, it’s about learning better. Here’s my chat with Sue Bottrell:



 

Do you see why I got curious about Sue’s point of view? This entire conversation centred on learning – learning about how the law should be interpreted, which can only be done by challenging prosecutions and enforcement actions where there is an appropriate opportunity to do so. It’s more work for sure, but the results are some pretty powerful learning for everyone involved, and when you share beyond your organisation, for our profession as a whole.

 

This episode brings together a few ideas and concepts we’ve discussed in previous episodes. A few of these you might want to have a listen to are:

 

Ep76 with Naomi Kemp, discussed the role of practices like enforceable undertakings, that episode is called “A stinky risk and a sweet-smelling approach to justice”

Ep106 “Restorative and transformative practices to breakaway from the past”, a double-barrelled lineup with Campbell Warren and John McDonald,

Ep49 with safety lawyer Greg Smith drew on his rich lessons from helping companies through prosecutions and enforcement processes, that episode is called “Now is the time to ask yourself some tough questions”

Ep 113 ‘An honest conversation’ with Martyn Campbell, the CEO of Safework South Australia

I hope those help give you some additional perspectives on today’s conversation.

Here’s my three takeaways from that chat with Sue Bottrell:
Takeaway #1: Have you ever been THAT professional, like me, who complains loudly about how ‘compliance’ seems to be taking over our work, and in turn becoming synonymous with safety? This is a major contributor to safety clutter. The lesson from Sue here is clear: the system which creates these problems, ie courts and regulators, create these issues because they are in the system. It is our opportunity to give them and us the opportunity to learn which means pushing back when it is appropriate and consistent with your organisations legal advice. The law and it’s enforcement is flawed without doubt, but it doesn’t mean we can’t all contribute to making it better, for the benefit of everyone involved.

Takeaway #2: Building from takeaway #1, you might agree with the logic here, but wonder whether this is really our role. What I reflected on to clarify that in my mind, is firstly, we must act in concert with our customers – the organisation and it’s leaders. If they have reasons not to challenge something, then you must engage with those respectfully. But having a look at the Code of Ethics I am bound by, being certified under the AIHS, it includes this obligation under the section titled Maintaining the standing and reputation of professional members of the AIHS:
Conduct their affairs so as to promote and improve the practice of professional members. Actively assist and generally encourage the continuing development of professional members; the OHS professions and OHS associations; and where appropriate, specific areas and disciplines of OHS practice.
What’s your take on that? For what it’s worth, my take on what Sue is encouraging all of us to do isn’t just logical, it isn’t just a nice to have, my reading is that arguably it’s an ethical obligation.

Takeaway #3: It’s easy to get focussed on the specifics here. Don’t just blindly accept regulator actions as infallible. Some of you will have quite justifiably latched onto the contractor management case, which is important, but just one example we were using to illustrate the broader point. The really macro lesson from this conversation.

for me, is that I tend to not focus on things associated with the law, compliance, and regulation because I hold specific beliefs about their limited value in relation to focusing on a bunch of other things which will make a greater difference, in my humble professional opinion. What that meant, is that I probably miss out on a bunch of learning, because I have blinkers on. As a learner, this conversation taught me to stay more open than I have been, and as previous guest Wade Needham says, by all means have strong views but hold them loosely.

I have included in the show notes a bunch of links for you to check out, including links to the appeal judgements in the Biaida case, and a sprinkling of articles, mostly from law firms, which can be useful plan English interpretations of these kinds of cases. Check these out over at safetyontap.com/ep124, which is also where you can get access to the transcript of this episode and my personal, handwritten notes and reflections from this episode as a learning aid for you, which you can flip over and then use to write or scribble your own reflection notes. That’s all at safetyontap.com/ep124

Thanks so much for listening. Until next time, what’s the one thing you’ll do to take positive, effective or rewarding action, to grow yourself, and drastically improve health and safety along the way? Seeya!
 
 

The High Court appeal judgment in the Baiada Case.
 
An example mainstream media article of the commentary which is stimulated while the Baiada appeals were still being run.
 
A few (somewhat) plan English summaries of the Baiada judgement, [here], [here][here].