Do we want Chevron Deference in WHS Prosecutions?

Whilst we definitely don't want an American 'justice' system in Australia. There are some legal doctrines that would be beneficial for fair court proceedings in the US.

The 'fruit of the poisonous tree' doctrine is a fundamental principle in U.S. law that excludes evidence obtained through unconstitutional or unlawful means, as well as any evidence derived from such unlawful conduct. For instance, if a police officer stops a car without reasonable cause and discovers illegal substances, that evidence can be excluded in court. While this doctrine effectively deters illegal conduct by law enforcement, ensuring the protection of constitutional rights, it can also result in the exclusion of critical evidence, potentially allowing guilty parties to evade justice. This delicate balance is a key reason why the doctrine has not been adopted in the Australian legal system.

A doctrine that there is some reason to allow is 'Chevron deference'. Chevron deference was originated in the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) where the Court established that courts should defer to administrative agencies’ interpretations of ambiguous statutes they administer, provided these interpretations are reasonable. In the Australian context, the absence of a similar doctrine means that technical interpretations of legislation often fall to the courts, whose members primarily have legal rather than scientific or technical expertise. This reliance on expert witnesses can result in biased testimonies from privately paid professionals representing either side. For instance, in drug driving cases where impairment is debated, it would be more consistent to have a standardised interpretation from relevant health or transport authorities.

While adopting Chevron deference could bring consistency and expertise to technical legislative interpretations, it must be implemented with safeguards to prevent conflicts of interest. For instance, while agencies like SafeWork NSW could provide clear definitions and standards, they should not have prosecutorial power in cases where they have a financial stake (SafeWork currently gets 50% of all fines the court imposes which historically has been up to $3,000,000 dropped to about $2,000,000 by judicial discretion - a lot of incentive to find a company breached a duty). Instead, an independent body, such as the DPP or police, should handle prosecutions to ensure impartiality and fairness.