Imagine finding maggots in your children’s half eaten take-away hamburgers from a fast-food chain. Or losing a loved one, killed on a construction site while working for a building company. Or the impact from an accidental release of highly toxic emissions by an international chemical manufacturer in your neighbourhood.
In all of these scenarios there are specific laws designed both to prevent, and to provide effective penalties to deter, producers and operators from risking the health and safety of the community. Similar laws provide compensation to those injured or damaged by the failure to protect the public, workers and the environment.
Over time, these laws come to reflect the prevailing attitudes and norms of society. The common law on negligence has established the concept of a “duty of care” on those whose actions or inactions may reasonably and foreseeably cause damage to others. It’s up to the state to prescribe the level of duty required to be exercised, liability and the excuses the injurer may rely upon to defeat a prosecution or damages claim.
It is a contested dynamic field involving political intervention to establish legal benchmarks. And in this sense, the level of protection afforded to communities and the environment compared with the industry, is not so much about the pluralist ideal of “balancing the interests” of competing stakeholders with ultimate common goals on the scales of justice. Rather, it has more to do in the real world with the capacity of the major players to unduly influence governments to pass laws and apply regulations and compliance standards in their unequivocal favour.
In NSW, there is a significant mismatch between the burden of harms associated with the sale, promotion and consumption of alcohol, and the legal duties (including preventing violence and intoxication) imposed on those who profit from its availability and over supply. Imagine if the hamburger supplier, construction company or the polluter could rely upon theses three excuses to avoid prosecution:
- The employee who caused the omission was young and inexperienced
- We had taken reasonable steps to avoid the problem
- We are a large business with many customers/employees and the rate of our workplace deaths, food poisoning and toxic spills is less than the industry average
These are the very same weak excuses being successfully used by the alcohol industry in submissions the NSW government recently relied upon to significantly reduce the regulatory “burden” on corporate pub and nightclub owners under the now watered down three-strikes law.
Under draconian NSW alcohol laws forever moving towards greater industry self-regulation, size does matter (s144(2)(c )(ii)). The three-strikes law had always considered the size of the premise versus number of assaults before issuing a strike, enabling some of the most violent licensed premises in NSW like the Ivy nightclub and the Sydney Junction Hotel to avoid penalties based on these excuses. This same argument ignores BOCSAR’s findings that the majority of assaults occur outside a premise – and are therefore not included in the violent premise list.
These continuing and pathetic industry excuses for unacceptable violence don’t pass the pub test. It all comes back to political leaders of all parties who benefit.