Andrew Douglas: Now, the main topic, Kim, I think is interesting, and I think it’s interesting because Victoria’s always all over the place and fails to actually integrate in any other state or territory. And I don’t quite know why it keeps doing it, but it does. We have a weird safety system that sits across Australia, where all but Victoria sit under the WHS model, but there are differential penalties starting to emerge in different places. Like I said, Darwin, life imprisonment, ACTU, I think it’s about 10 years or something, it’s crazy at ACT.

So, what this really tells us is we are begging for continuity. As lawyers representing business, we’d love to be able to say, “We can give you one bit of advice across the states and territories,” but we can’t. And here, the jump from five to $10 million in penalties and five to 10 years for reckless endangerment doesn’t have a warrant. There’s no actual proper reason why it should happen because the cases in sentencing are revealing what the court is saying and reflecting what is our social judgement . Now, what will happen here is in two years, that jump will continue. Victoria’s already…

Except for exceptions in WA sometimes, and in Queensland sometimes, Victoria penalties are inclined to be higher than anywhere else. So I’m not sure why we need to jump and why we need to lift the tariff, but it’s scary. What is great is to say what has been the impact by what is called in a prosecution case, like any other criminal case. So, what is the victim left with? What is the damage that’s been done as a result of the wrong, I think is a really helpful thing for sentencing. For those who’ve done a bit of criminal law, there are two basic tenets of criminal law. There is general deterrence, I’m going to punish you so no one else does it. That’s drink driving.

You just get three demerit points or whatever it is. I haven’t done it often enough, but it’s quite a lot, actually, and a lot of money, but it’s the same across the field. And then, there is specific deterrence, which is looking at: What was the learning you had? How sorry are you for what you do? What have you done to try and fix it afterwards? And what we really need to know is: If damage has been done, how have we helped? Have we looked after families? What have we done? All those things go to specific deterrence and will lower penalty. So victim impact statements don’t increase penalties. They increase the focus of employees on doing the right thing.

They’re a good thing, and they make court decisions much more accurate. And the last part, of course, is health and safety reps get another plug in the back, and they’re now allowed to photocopy all the workplace documents. We’ve seen a growth in health and safety reps, and union reps in Victoria’s powers, and union reps across Australia. Not entirely helpful, but not entirely… Not entirely unexpected, given we’ve got strong labor governance through most of Australia.

So, that’s it, there’s not much special in it, but it has gone through both Houses of Parliament. It will be coming pretty shortly and it will change the way serious offences are sentenced. And remember, many more charges of reckless endangerment are happening every year. So, safety prosecutors are much more readily prosecuting for that and for workplace manslaughter. So, as individuals, particularly officers out there where there’s risk, you should take this on board and say, “What is my governance structure?” Do you want to try the case study?

Kim McLagan: I’ll read the case study.

Andrew Douglas: The case study is yours. Okay, Kim, over to you for the case study.

Kim McLagan: Thanks, Andrew. Mim could see the problem. The new procurement guidelines for government funding required the disclosure of key employees’ criminal records relating to dishonesty, violence, and sexual offences. Mim was the COO of Blended Families Inc., a not-for-profit organization that assisted with the fostering of children. Mim did not work directly with children, but under the government tender document, she was a key employee and signatory. 15 years earlier, I love how you bring this in.

15 years earlier, Mim had been charged with aiding and abetting fraudulent transactions while working for a major building company that was attempting to make deals with a union. The owner of the company pleaded guilty to passing on bribes which were disguised as variations and labor costs for non-existent employees. The payments were made to the union and organized crime figures. Mim had assisted in facilitating these transactions. The owner was sentenced to three years in prison and the case was widely reported in the media.

Mim’s name was suppressed because of concerns about possible retribution from the organized crime family involved after she assisted the police. Mim received probation. Mim’s current boss, Doug, asked her how the new tender was progressing. Mim told him that criminal record checks were required for the CFO and for Doug. When Doug asked why, Mim explained the new requirements, however she did not disclose her own criminal record. The tender was submitted and interviews followed.

During the first interview, Doug was asked whether there were any officers in the organization. He responded, “The COO.” The interviewer appeared concerned and asked, “Why is there no criminal record check for the COO included in your tender?” It could be fatal to the application. Doug returned to the office in a foul mood. He stormed into Mim’s office, and in an expletive laden outburst, demanded to know why her criminal record had not been included. Doug’s outburst and aggressive behavior frightened Mim. She burst into tears and ran from the room. A certificate of capacity followed.

Andrew Douglas: So, would Mim have a successful worker’s comp claim?

Kim McLagan: Yeah.

Andrew Douglas: See, there’s the irony, isn’t it?

Kim McLagan: I know.

Andrew Douglas: I know. And it just shows that when we’re dealing with the most difficult things, you just got to look in the mirror for a second, breathe and behave properly. There would have been no

Kim McLagan: He could have handled it so much differently.

Andrew Douglas: Couldn’t he? Was there any breach of safety?

Kim McLagan: Yeah.

Andrew Douglas: Absolutely, there was. So, once again, would he be prosecuted? Unlikely, but clear breach, good common law claim, nasty things happening. The signatures of the tender, including Mim, waived the usual consent requirements to allow the government to check her credit and criminal histories. During the government due diligence process, Mim’s criminal record was discovered, and a show-cause notice was sent to Doug. Does Doug have grounds to terminate Mim’s employment?

Kim McLagan: Yeah.

Andrew Douglas: He does.

Kim McLagan: He does.

Andrew Douglas: He does. So there you go. These are all pretty easy, actually. Would Mim have a defense based on discrimination because of her past criminal record? And the answer is no.

Kim McLagan: Okay.

Andrew Douglas: Okay, because there’s a relevant matter that goes to the heart of her employment. So, no. So, there you go. Really simple stuff. God, it’s nice to have you back.

Kim McLagan: Oh, thanks.

Andrew Douglas: I’ve actually relaxed the last two days, not worked this 24 hours a day I was doing before. See you next week. Cheers.

Kim McLagan: See you, bye.

Andrew Douglas: Bye-bye.