2025 Volume 38 Issue 2

Abstract

This article examines the legal and policy issues involved in initiating ‘pure risk’ prosecutions under the Australian harmonised Work Health and Safety Acts (WHS Acts). Pure risk prosecutions are WHS prosecutions that are initiated in circumstances where workers or others have been exposed to serious risks to their health and safety which have not yet materialised in circumstances resulting in injury, disease, death, actual contact with a hazardous substance, virus or bacterium or a ‘near miss’. The article argues that there are strong policy arguments (including those drawn from regulatory policy and the legal architecture of the WHS Acts) for regulators to make more strategic use of pure risk prosecutions. It shows how in the period 2021 to 2023, the WHS regulators and prosecutors in Queensland and New South Wales brought 21 successful pure risk prosecutions for hazards that have frequently been the subject of prosecution (dangerous plant and work at height), for infrequently prosecuted hazards (exposure to asbestos, and the risks of collapsing trenches) and, most significantly, for newly emerging or unusual hazards — exposures to respirable crystalline silica dust, and deficiencies in procedures for handling restricted drugs that could impair the ability of paramedical staff to perform their work safely. It argues that the main reasons that these pure risk prosecutions have been successful are that WHS investigators are now more skilled at investigating systems of work than they were in the past, and that WHS investigators and prosecutors now can draw upon a range of legal and other authoritative advisory instruments outlining reasonably practicable measures that a PCBU should implement to eliminate or minimise risks to which workers and/or others are exposed. Further, prosecutors now focus on deficiencies in the defendant’s approach to systematic WHS management and/or their systems of work, and/or their failure to comply with provisions in the WHS regulations.

Abstract

Employers are gathering a sizeable body of employee data, some of which is sensitive and highly personal. However, privacy law in Australia remains fundamentally ill-adapted for protecting employee interests, due to significant exceptions for small businesses and employee records, and minimal protection of privacy rights at the federal level. Drawing on comparative doctrinal analysis of the UK and Australia, this article frames the dramatic regulatory gaps for employee data in Australia. It argues that equitable breach of confidence might prove to be a critical complement to the employment contract and other forms of legal regulation, to enable the protection of employees’ sensitive data. This is particularly pertinent in jurisdictions like Australia, with limited statutory or human rights protection of privacy. However, it could also prove to be an important complement to other protections in jurisdictions like the UK, with statutory privacy law, human rights, contract law and equitable doctrines offering complementary protections.

Abstract

This article compares the legislative options available to women at the federal level who believe that they have been discriminated against or treated unfairly by being made redundant while pregnant or on parental leave. Part II offers an analysis of recent case law concerning Pts 2-2, 3-1 and 3-2 of the Fair Work Act 2009 (Cth). Despite national attention and calls for reform to address the vulnerability of pregnant women and mothers to redundancy, the case law reveals that little has changed in the past 10 years, with decision-makers still deferring to managerial prerogative in respect of organisational restructures. Part III examines the risks and benefits to women of pursuing legal redress under the different legislative schemes and highlights challenges in respect of access to justice. The article concludes with a discussion of possible reforms.