Important OHS law reformer, Jeff Shaw, dies

Around 15 years ago, occupational health and safety law in New South Wales looked exciting.  The NSW Standing Committee on Law & Justice was  investigating OHS, and not just the laws.  There was a potential for the inquiry to make New South Wales a leader in innovation in this sector.

On 11 May 2010, the news broke that a leading supporter for the review, Jeff Shaw, had died.  Although his legal career ended in controversial fashion, Shaw’s activities in relation to industrial relations and OHS were notable.  SafetyAtWorkBlog looks briefly at Jeff Shaw’s OHS legacy.

Unions NSW’s Secretary Mark Lennon said today in a statement (not available on line):

“…. Jeff Shaw made great contributions to the safety of workers in NSW, turning his attention to reforming occupational health and safety in New South Wales.

The Occupational Health and Safety Act, as rewritten, provided New South Wales with the strongest workplace safety laws in the country.  It is without doubt that the laws he developed helped to prevent an unknown number of workplace accidents.”

Other tributes are available online.

On 5 July 1996 the then Premier, Bob Carr, announced an Upper House inquiry into OHS and a separate investigation into the technical competence of OHS law by Prof Ron McCallum.  According to the Sydney Morning Herald (private clipping) on 6 July 1996, Jeff Shaw outlined the achievements of the NSW government up to that point.  Many initiatives were unique and quickly followed in other States.  Most now seem very uncontroversial but that was not the case 14 years ago.

Shaw listed:

• the doubling of maximum penalties to $A500,000;
• the possibility of jail for company directors;
• the licensing of demolition and asbestos removal contractors;
• the targeting of high risk industries such as timber mills;
• stronger labelling requirements for hazardous substances;
• increased awareness of back injuries;
• the introduction of a safety code for HIV; and,
• an enhanced right for union delegates to enter workplaces over OHS matters.

The terms of reference for the Upper House inquiry are worth noting:

“That the Standing Committee on Law and Justice inquire into and report on workplace safety matters, with particular reference to:

(a) integrating management systems and risk management approaches aimed at reducing death and injury in the workplace;
(b) social and economic costs to the community of death and injury in the workplace; and
(c) the development of an appropriate legislative framework for regulatory reform and/or codes of practice in relation to occupational, health and safety in the workplace”

These show that Shaw and others acknowledged the importance of risk management and the need to integrate management systems – lessons that are still be pushed over a decade later and still struggle for traction.

The reports of the Standing Committee are still available online and are recommended reading for anyone who wants to understand OHS law.  The most interesting report from a broad safety perspective is the conference proceedings in which many of the OHS “players” who are still active in the sector provide their opinions – Garry Brack, Prof Ron McCallum, Prof Michael Quinlan, Jim Whiting and Prof Dennis Else, to name a few.  Significantly many of the same issues discussed at this 1997 conference resurfaced on the national scene in the harmonisation process.

SafetyAtWorkBlog contacted Professor Ron McCallum for his thoughts on the OHS legacy of Jeff Shaw.  McCallum described Shaw as a reforming Attorney-General who had a genuine concern about worker safety.

“He was a great believer in consensus and, maybe, too strongly sometimes…. [as a result] we weren’t as reforming as we might have been.

New South Wales was the first State to fully adopt Robens in 1983…. Since the 2000 Act we’ve seen five or six Acts reviewed perhaps with the most successful being the Victorian review in 2004 and the new model [WHS] Act.

What Mr Shaw saw in all his work  [was] consensus as the way to bring about slow and moderate law reform.  The 1983 Act was very much modelled on the British Act with all its quaint language.  One of the strengths of the 2000 [NSW OHS] Act, and the Industrial Relations Act 1996, was its plain English.  Mr Shaw was a great believer in plain English.

If you look at section 13 of the Act which, I think, had his name on it, which required employers to consult with their workforces and it said because “employees will have useful things to contribute”.  That was his view, if you all got together in a room, you could contribute.

In hindsight, maybe that Act should have gone further but it got through a fairly hostile Upper House without opposition because it brought in safety and health representatives which the union movement had been staunchly opposing.

New South Wales pioneered the on-the-spot fine. …

If you look at the OHS Regulation 2001, it was one of the most magnificent pieces of consolidated regulation.

[As well as his IR and OHS law reform]…his law reform on discrimination, the first lot of gay law reform, transgender law reform – they’re his legacies.”

It is likely that some of the media may focus on the manner of his departure from the Supreme Court after being Justice Shaw for less than two years but, as McCallum and others have said, Jeff Shaw was an important law reformer in New South Wales and who knows what impact he could have had in the New South Wales Supreme Court had he not felt it necessary to leave.

And how different would OHS laws, in this period of harmonisation, have developed had a reformer like Jeff Shaw been involved in  their development.

Kevin Jones

UPDATE: 19 May 2010

The Australian media has begun reporting on Jeff Shaw’s funeral:

ABC