BLF - OHS - CHAPTER TEN: 'KILLING NO MURDER'
words/14,904 with notes
than buildings rise on “a framework of human flesh”. So, too, do the
profits of Messrs Construction Capital. The previous 80,000 words have
carried our understanding of that reciprocity past the level of
generalisation. The next step is to foreground the concepts embedded in
that analysis by asking how the il-logic that compels capital to expand
also makes it injure human capacities. The persistence of those harms
becomes explicable once located within the dynamics and structures of
capitalism, primarily, its disciplining of labour-time. Outside that
framework, both data and concepts remain abstract.
the relationship between the needs of capital and the frequency of harms
will proceed through four phases. The first is a reminder that the
assaults suffered by builders’ labourers are but a microcosm of the gore
that has accompanied capital accumulation around the globe. The second
section integrates the prevalence of on-site injuries with the mechanisms
that capital relies on to expand. A third section documents the class bias
in the operation of OHS laws. The book culminates by showing why “legal
reasoning” premised on the tripod of “equality before the law”, evil
intent as necessary for crime, and individualism as autonomy prevents OHS
violations from being treated as real crimes.
following schema tabulates the material.
Brutal new world
2. The il-logic of
Time means money
3. Fit the crime
4. “No fault or flaw”
Order in the courts
5. Class analysis
Brutal new world
Pounds of flesh
has made Shylock’s usury appear as the moral equivalent to Christian
slave-holding. Shylock concludes by declaring: “I stand for judgement.
Answer: shall I have it?” Portia saves Antonio by answering “Yes”.
Shylock is to have his pound of flesh – but not a single drop of blood.
The bond must be honoured exactly.
nowadays attain such precision through labour-market flexibility,
time-and-motion management and standardisation. These controls are but
some of the changes in capitalism since its inception among the merchants
of Fourteenth-century Venice. In addition, the functions of banker,
trader, farmer and manufacturer have been merged inside corporations. The
crucial change, however, was to the manner of exploiting human capacities.
That essential shifted from the possession of chattel slaves to the
purchase of labour-power from people forced into wage-slavery.
was this new world brought into being? Much of the answer is through
violence. Across hundreds of years, the agents of capital have been
responsible for the deaths of millions upon tens of millions to acquire
materials or labour power, and to win opportunities for investments or
trade. Those developments will be introduced through a quartet of
intertwining features: one, the origins of capitalism in chattel slavery;
two, the reliance of capitalists on the state to drive people into
wage-slavery; three, the disciplining of labour; and, four, the dependence
of capitalists on the state for war-making to secure resources and sales.
(i) systems of slavery:
The free market of capitalism rose on the backs of slaves and bonded
workers. Capitalists employed slaves to gather the critical mass of
political and economic powers they needed to overwhelm the restrictions of
feudalism. In a triangular trade for rum and sugar, merchants transported
millions of Africans to the Americas until every brick in Bristol was
mortared with their blood.
Barbarism on the plantations of the West Indies underwrote the sweetness
and light pictured by Jane Austen, a secret locked in the attic of English
high culture, along with the mad Creole wife in Jane
When Britain abolished chattel slavery in 1833, the government compensated
the owners for the loss of their property in living tools. The slaves got
nothing for the wealth that their labours had added.
then, the methods for exploiting human capacities extended beyond
serfdom and slavery to peonage and indentured labour. 
Many of the US slaves who got their liberty in the 1860s were forced into
bonded labour, as freed Russian serfs had been ten years earlier.
Elsewhere, masters paid workers in goods at inflated prices so that these peons were forever in debt. Limited-term bondage replaced chattel
slavery throughout the British Empire in the nineteenth century, for
example, when Pacific Islanders were carried away to the cane fields of
Queensland. Indenture better served certain needs of capital for a
flexible and mobile supply of labour than did chattel slaves or free
(ii) freeing up labour: No one could be born a slave unless a
master had owned his parents. Similarly, no one can be a capitalist
without wage-slaves. The propertylessness of the majority is the
pre-condition for the few to control productive property. “Free” meant
that workers were freed from owning the productive resources that had
allowed them to be self-sufficient. Between 1750 and 1830, the parliament
at Westminster enclosed one-fifth of English lands, a piece of grand
larceny immortalised in verse:
deprivation of the wealth of nature propelled villagers into urban areas
to sell their labour power at factory gates. In the colonies, 100 years
later, the imposition of a tax payable only in cash coerced locals into
the labour market, as happened when Australian officials drove Papuans to
harvest copra on settler plantations. While European workers were free to
become wage-slaves, that condition meant that they were not free to
withdraw their labour. Throughout the nineteenth century, they were
punished under the Masters and Servants Acts if they broke an employment
(iii) Disciplining labour: Being obliged to sell one’s
capacities for wages is only the first step towards the wage-slaves’
exploitation by capital. Equally important is the disciplining of workers.
In 1697, the champion of bourgeois liberty, John Locke, had advised the
Board of Trade that the idle deserved to be whipped and have their ears
lopped off; at three years old, their children ought to be
institutionalised to acquire the habits that would benefit employers.
Small wonder then that, by the 1770s, the godfather of free-market
theology, Adam Smith, could conclude: “Laws and government may be
considered in every case as a combination of the rich to oppress the poor,
and preserve to themselves the inequality of the goods.”
One hundred and fifty years later, the founder of German sociology, Max
Weber, acknowledged that the spirit of capitalism had soared on the
repression of free will: “As every employer knows, the lack of
conscientiousness in labourers is one of the principal obstacles to
capitalistic development.” Weber understood that the Protestant ethic
must be “the product of a long and arduous process of education,”
sustained by a political framework in which, he added,
“[t]he decisive means … is violence.”
for market forces laud their competitiveness but decline to follow Weber
in recognising its force. Individual capitalists, however, have been known
to speak the truth. In 1908, a Sydney contractor accepted that
rock-chopping laid waste to his labourers:
with employees who were literate and organised, few capitalists dared to
be so forthright.
Instead, the violence inherent in capitalism was camouflaged behind claims
about an opposition between the state and the market. Professors promote
this pretence with talk of the nation-states when the reality is of a
officials attempt for the expansion of capital what its managers cannot
achieve through corporations. A prime example remains the waging of wars
to give capitals access to the wealth of nature and control over markets.
(iv) War-making: In marching through barriers to trade across
Europe, Napoleon’s armies extended the terrorism of France’s bourgeois
revolutionaries. Lincoln entered the Civil War in 1861 to maintain the
United States as a single nation-market-state; one objective was to hold
onto the Mississippi Valley as a trade route for the mid-western States; a
parallel aim was for the mill-owners of New England to retain dominance
over their suppliers in the cotton-growing South. Two years later, Lincoln
freed the slaves to defeat the Confederacy’s war for independence. For
the next 30 years, the Union army concluded its genocide of native
Americans; then, from 1900, US Marines exported the slaughterhouse to the
Philippines. At the same time, the British imperialists invented
concentration camps to secure gold, diamonds and naval trading posts in
twentieth century proved a new hundred-year war. Tens of millions of
conscripts and hundreds of millions of civilians were sacrificed in
inter-capitalist conflicts. ANZACs were slaughtered at Gallipoli to
provide Czarist Russia with warm-water ports. The US imperium entered the
hostilities in 1917 to protect its exports to the Allies in what was “a
sordid trade war”. Having blasted into Japan in the1850s, the US
strategists moved, from the late 1930s, to keep their slice of the Chinese
melon safe from rival imperialists. After defeating the Japanese
militarists, the US planners dropped two atomic bombs on civilians to
assert dominance over its allies.
meanwhile maintained a line of profits from the war-making of their
nation-market-states. Du Pont, for example, had advanced from
manufacturing gun-powder to the production of chemicals, plastics and onto
automobiles at General Motors, while retaining its place among the
merchants of death. In Germany, Krupps and Seimens worked slave labourers
to death for profit and to nourish the Nazi war-machine.
(v) Good repute: To workers alive in the 1940s, capitalism had
delivered two depressions, two world wars and fascism.
The system inspired fear and loathing. Mass mobilisations for war had
tilted the balance of class forces in favour of the working class by
endangering the capitalists’ monopoly of violence. In 1948, the American Business Review accepted that “capitalism” had become
“a brand name of demonstrated ill will” and endorsed its replacement
with “free enterprise”. To prosper, capitalism had to shed its
reputation for mayhem. US employer groups had spent $100m. in 1946-47
repackaging their system.
McCarthyism gagged those who refused to forget real existing capitalism.
Since then, corporations and their governments have outlaid billions to
confuse wage-slavery with freedom. Market researchers, PR agents and
social scientists built this propaganda around legends about individual
entrepreneurs, despite the dominance of conglomerates backed by their
ideas convince only when they strike a chord in experience, corporate
managers and state officials also had to revive the economic system
without, at first, slashing real wages or lengthening the working day. A
second industrial revolution of electrical power and petro-chemicals
helped managers to realign exploitation away from such sweating and
towards raising the output from each unit of labour-time.
means for accommodating proletarian demands with profitability varied
between nation-market-states. In the USA, military spending had dragged
the economy out of its deflationary cycle after the failure of the New
Deal. In the 1950s, the US warfare state exploded into a
military-legislative-academic-industrial complex which underpinned
civilian employment, aided by consumer credit. Elsewhere, the strength of
working peoples secured welfare states which stimulated domestic markets
while slowing, for a time, the spread of inequalities.
THE IL-LOGIC OF CAPITAL
pair coincide in the use of sub-contractors to reduce time-costs for both
labour and capital.
(i) Pricing: Competition is obvious through pricing. Consider a
newcomer who uses cheaper materials or less labour-time to lower the costs
per unit. Reducing the expense of making each commodity depends on
increasing the numbers produced. Because the profit possible from each
unit contracts, each firm must boost its total sales to maintain its
absolute earnings. Existing makers then respond in kind, or go out of
business. Competition takes multiple forms. For instance, one product will
render another obsolete. Of course, firms try to minimise competition by
taking over their rivals or by joining cartels. The result has been to
intensify competition among a shrinking number of firms (oligopolies).
(ii) Labour costs: Each
business could cope with its competitors more easily were it not for its
workers’ driving up labour costs. That pressure derives from two
sources: the first is the workers’ quest for a civilised life through
higher wages, shorter hours and safer conditions; and the second is the
need that capitals have to sell their ever expanding outputs. Aggregate
capital therefore induces a greater volume of needs in its workforce
through mass marketing. Most of those super-sized customers will be
wage-earners. As a result, the
system places upward pressure on the wages bill for individual capitals.
In this way, the consequences of competition feed back into the cycles of
production and consumption to intensify the forcefulness of the market.
Time means money
these pressures apply to all employers, the peculiarities of the building
sector intensify their impact.
(i) labour discipline: Employers pay labourers for their capacity
to add value to raw materials or semi-finished goods. The capitalists buy
this capacity in units of labour- time. The President of the Commonwealth
Conciliation and Arbitration Court in 1913 determined that the “working
time of the labourer is time purchased by the employer, who has the
exclusive right to it.”
That legal control over labour-time cannot give its buyers the entirety of
its product because some has to go for wages. Hence, the working day has
two compartments. The first contains the hours that workers take to
produce enough for their employer to cover their wages. In the rest of the
day, the goods that workers produce are surplus to the cost of reproducing
their capacities. They get nothing for those hours. Instead, capitalists
expropriate the values added during that time. Any profit will derive from
selling the products from that part of the working day. As a result,
capitalists attempt to increase the unpaid fraction. Where workers are
disorganised, the managers lengthen the day so that the wage-earners put
in more hours of “unpaid” time. One alternative is for supervisors to
make workers go faster so as to produce more within the same time. In
practice, the capitalists aim at both.
“exclusive right” of employers to labour time is no guarantee of its
application. Hence, the nub of the class struggle becomes the disciplining
of labour time. To ward off competitors, as mentioned above, the agents of
capital reduce the quantum of labour-time needed for each unit of
production. To achieve that end, they strive after two conditions:
must enforce these procedures to keep up their rates of profit.
(i)(a) Continuous flows: Supervisors strive to make the time during
which employees are being productive coincide with the minutes for which
they are paid. Before labourers organised themselves into the ABLF,
employers stood down them without pay for 15-minute blocks when materials
were not to hand, or if the weather stopped operations. As projects became
larger and mechanised, contractors allowed only one meal break in order to
maintain the pace of value-adding.
They resisted smokos, even if unpaid, because of the expense in stopping
and starting the flow of materials and machinery.
To “fill in the pores” of the working day,
capitalists aim at a continuous flow of materials so that the labour power
they have bought is never idle. To ensure that outcome, they developed the
factory system wherein the flow of materials itself disciplines the
application of labour power. Although that regularity is harder to achieve
building firms have made sites more like factories by pre-casting concrete
sections off-site, and by ever more prefabrication.
(i)(b) speed-ups: One way of making up for unavoidable breaks in the
production of surplus value is to drive workers to go faster. By 1913, the
micro-management of work in the United States by stop-watches was
reminding Australian engineers of “the whip of owners or taskmasters.”
Until the ABLF stamped out sweating, builders offered the strongest man
sixpence extra a day to “carry more bricks so as to run out the men who
Piece-work is another method for driving down the unit cost of labour. No
sooner had Melbourne stonemasons won an 8-hour day in 1856 than
contractors imposed piece-rates. Other building workers fell victim to
this cost-saving when they were paid according to how many square metres
of flooring or bricks they laid. Whenever scaffolding is done by
piece-work, safety suffers a double blow. Materials are “scamped”, and
the job rushed. Skimping is one source of risk, but speed-ups are a more
significant cause of harms. Intensification increases hazards on even the
most secure and expensive scaffold.
Brisbane job in 1958 spotlighted how the disciplining of labour time
depends on physical force. The ABLF resisted the introduction of time
books to measure how long it took to complete each task. In reaction, the
contractor called in the Metropolitan Security Service.
Behind the boss and his MSS heavies loomed the force of the state through
the police. Today, Messrs Construction Capital have the Australian
Building and Construction Commission to enforce their “exclusive
right” to the labour-time they buy, plugging the pores left by the
pre-factory pattern of work on sites.
(ii) Turnover of money-capital: Money becomes capital only when
it is active in its own expansion. Gold coins under the bed are not
money-capital. Yet, no sooner are those commodity-tokens thrown into play,
than they are in danger of being debased. The costs from remaining in
circulation eats into money-capital, like a taxi-meter ticking over in a
If builders or their clients borrow, they pay interest before they draw
rent. If they use their own funds, they lose the opportunity to invest
those savings. In either case, their money-capital shrinks. The point of
capitalism is to end up with more money-capital at the close of each
circuit of production and consumption. Every capitalist is impelled,
therefore, to cut the cost of money-capital by reducing the time during
which interest falls due, or is foregone. In addition, the earlier a
project is finished, the sooner its financiers can reinvest.
Clients reduce the costs of money-capital by offering a bonus to their
contractor to finish earlier, and they impose penalties for running late.
also accelerate the turnover of money-capital in order to appropriate a
second tranche of surplus value while a building boom lasts. Because
fluctuations in the construction game are more frequent and extreme than
the business cycle as a whole, the urgency to finish is greater than for
other sectors. The financial pressure to hasten completion increases
hazards by making labourers go faster during extended shifts.
Bourgeois economists pretend that investors earn their profits by
taking risks with money-capital. By flouting safety regulations,
capitalists shift that risk onto the backs of their workers.
(iii) Subbies: Capitalists also reduce their exposure to the hazards of investing
through the externalisation of time-costs for labour and for
money-capital. Hence, they contract out as much work as possible, and pay
as little as possible as infrequently as possible. The pressure,
therefore, is always on the subbies to do their bit and move onto their
next source of income, if they get paid at all. Despite computerised
schedules and mobile phones, workers are still left hanging about so that
subbies get in each other’s way, compounding the disorder, thereby
contributing to the level of injury. Although the chaos endemic to
construction adds to its dangers, the response to a known risk should be
to heighten care. Blaming sub-contractors for the rates of injuries has
always been a cop-out for lead contractors, clients and bankers. The
responsibility rests with the corporations that impose time schedules that
sub-contractors can meet only by stretching the law.
By not chasing the cheapest bids, the Parliament House Authority in
Canberra had no fatality among 10,000 employees and kept injuries at 40
per cent below the industry average in the 1980s.
2 on “The il-Logic of Capital” has located the frequency of workplace
injuries within the need that capitals have to ward off both competitors
and workers by reducing costs, often through speed-ups. Section 3, “Fit
the crime”, explores how this necessity finds expression in legal
processes, first as patterns of practice and then as systems of thought.
The analysis begins by documenting how judges and lawyers have indulged
OHS offenders through the rarity of prosecution and lightness of
FIT THE CRIME
(i) Manslaughter: After three deaths on the Gold Coast during the
summer of 2003-4, the Queensland BLF stepped up pressure for industrial
manslaughter legislation. Without that sanction, unionists feared that
they would “continue to be murdered by ‘supervision’.”
In 1833, the British government had rejected manslaughter as the
appropriate charge against a Master whose negligence had caused the death
of a Servant because so severe an offence “would create a serious
objection to the investment of capital.”
Over the next 170 years, workers got nowhere in their calls to have
killing for profit treated as murder, at least in the second degree. By
2001, Victoria had launched but three prosecutions in over 100 years, and
it had been the most active among the States.
The Victorian ALP abandoned its 2001 plan to treat offences against OHS
laws as criminal,
and did not use its subsequent majority in the Upper House to make
industrial manslaughter a real crime. In South Australia, the ALP
administration blocked a private member’s Bill along those lines. The
ACT included industrial manslaughter in its Crimes Act, while NSW added
“reckless conduct causing injury”.
All the amendments fell short of treating at least some workplace
fatalities as real crimes. Even worse, the placing of industrial
manslaughter in the Crimes Act entrenched the flaw in all OHS legislation
of seeing its violations as not fully criminal. Adding homicide to the OHS
Act would be a step towards treating every injury as a ground for
prosecution and all violations as crimes.
VWA chased high profile cases, such as ESSO at Longford in September 1998,
with its two deaths. That prosecution became the first under the 1985 Act
to reach a Supreme Court jury. Meanwhile, the VWA had allowed persistent
negligence elsewhere to slip through. What distinguished ESSO was media
attention, public inconvenience and financial losses throughout the
employing class. The government had to shift blame from its own laxness.
The court pronounced ESSO guilty of a “welfare offence”. That
conviction was possible only because proof of a violation did not demand
evidence of evil intent. There was never any possibility of securing a
manslaughter conviction. After the guilty verdict, ESSO executives
persisted in their smugness because they had not been convicted of a real
crime. The ESSO case was an exception that tested the rule about class
bias and found it proven.
year, the VWA reacted to fatalities in the construction industry with a
“major crackdown” through a “dedicated field force” applying a
“zero-tolerance approach”. This hard line was soggy at the core.
“Zero tolerance” meant that an employer who had broken the OHS law got
a piece of paper telling them to improve. Only if the firm failed to
comply did the VWA contemplate a prosecution.
In the war on drugs, “zero-tolerance” is more than a caution through
the mail. The favouring of corporates is stark through the opposite
reactions to two white powders - asbestos and cocaine. The building fibres
can kill in every case. The drug rarely does. People are in prison for
life for peddling cocaine but not for profiting from asbestos during the
decades after executives knew it to be murderous.
against calls for industrial manslaughter provisions, the Secretary of the
Australian Construction Association contended in 2005 that “[t]he answer
is not in further draconian legislation”.
Indeed, labourers will not benefit from tougher laws unless they are
enforced with more rigour than existing Statutes. By 2007, NSW WorkCover
had buckled to employer pressure to announce that 200 prosecutions a year
out of 150,000 compensated injuries were too many. Offenders were 20 times
were more likely to be advised than penalised.
further conclusion is undeniable. If the rate of prosecution for street
crime were no higher than for injury in the workplace, governments would
topple and shock-jocks claim the scalps of WorkSafe Commissioners.
Commercial talk-back hosts howl against courts that let teenage burglars
walk free, but are silent on the featherweight punishments for executives
who breach OHS laws. Instead, the presenters sympathise with the corporate
killers, portraying them as persecuted by union bosses.
(i) Judicial discretion: The bench pays employers a respect
denied to other offenders since judges are not accustomed to sentencing
the kind of people with whom they play golf, anymore than magistrates are
at ease in penalising fellow Rotarians. In the eyes of the judiciary,
character is like money in the bank, on which business people can draw at
NSW Judge Murray Tobias voiced that ambivalence in 1993 in assessing the
probity of Leighton’s Wal King. On the one hand, Tobias declared King to
be “not of good repute, having regard to character, honesty and
integrity”, and that he still did not “truly accept even now that the
practice of the false invoices was dishonest.” Notwithstanding this
assessment, Tobias could not bring himself to conclude that King was
“deliberately lying” but rather had been “extremely busy”. In the
end, Tobias judged King and a fellow executive to be “generally
speaking, honest, industrious and honourable … generally respected and
held in high regard in the commercial and personal circles within which
King, nonetheless, felt “wounded” by the proceedings because, as he
put it, he was “not in the habit of having to defend contracts
A no less puzzling shift in judicial proceedings followed the death of a labourer at a demolition on 19 September 2002. The judge ruled that the principal contractor, Brambles, had had control of the premises, and therefore found the firm guilty for the actions of its sub-contractor. His Honour then accepted a plea from Brambles that it had not been in control after all and thereupon overturned his own ruling. A legal commentator warned outsiders not to interpret this topsy-turvy-dom as an instance of “Pass Go, Collect $200 and Get out of Jail”.  Denied the benefit a legal education, the dead man’s fellow labourers were left to wonder how Brambles had become the little man upon the stairs – there, yet not there, in charge, but not in control.
(ii) Defence: A lawyer explained how he arranged evidence to
attract such sentences. He began “by looking for documentation”, that
is, proof that recruits had signed forms to say that they had received a
safety manual and had attended training sessions.
This paper trail argues that “the company has a real system in place”.
“Real” equals “on paper”. The National
Safety headline was apt: “Due diligence pays dividends”.
in 2001 adopted a presumption
of guilt for OHS violations while permitting two defences. Either the firm
did not have the power to stop an illegal procedure, or it had tried to do
so, but could not control its agent. Establishing the latter proposition
involves the defence counsel’s shifting the blame to the victim. The
accused will contend that the injured labourer failed to follow
instructions. The firm’s lawyer submits that supervisors cannot watch
each labourer every minute of the working day. That proposition seems
reasonable until posed against the disciplining of labour time. If the
victim had stopped for a yarn during working hours, the foreman would have
come down on him like a tonne of concrete. Why does this intensity of
supervision not apply to safety?
assumptions did more to lower the level of fines rather than the rate of
harm. Between 1920 and 1960, fines for OHS offences in Victoria had
averaged 14% of the maximum penalty. After their monetary level increased
from $2,000 to $25,000 in 1985, the fraction that judges imposed fell to
8% of the new maximum. Deaths drew an average fine of $15,000. Four out of
ten guilty employers walked away on good behaviour bonds.
After penalties available in NSW shot up to $100,000, the average imposed
was still only $530 in 1987.
Firms found it cheaper to pay a fines than to fix their sites. South
Australia’s Industrial Safety and Welfare Act (1973) had set the maximum
fine of $1,000 on an employer who breached a specific section and made
failure to comply with a regulation punishable by up to $500; the average
penalty, in 1982, was $164.
One inspector summed up his experience with developers: “If I were
paying $80,000 a month on a $20 million loan, a fine of $500 would not
death in October 2000 of a Leightons’ worker, Robert Sergi, led to fines
of $325,000 four years later. No executives could be sentenced even to
week-end detention or community service. Instead, they were given
rehabilitation to become good corporate citizens. Leightons was not
excluded from government contracts, which was the fate of any firm
prepared to deal with the ABLF after its de-recognition in 1986. Leightons,
however, did have to pay $90,000 to the children of the killed worker.
That sum was one four-hundredth (0.25%) of the $36m. package that the
corporation’s CEO, Wal King, took home to his five-car garage beneath a
In an era when executives vote each other performance bonuses, they can
afford to pay penalties out of their own pockets as crippling as the harms
that profit-taking inflicts on labourers.
that the courts take “a tougher line on repeat offenders” is scarce.
A Victorian study on the compliance at twenty construction companies a
year or two after their OHS convictions in the early 1990s reported that
only half met required standards. A quarter had made no improvements. One
contractor had nine priors, but had not been excluded from the industry.
Even where earlier offences do lead to higher penalties, there is no
provision for excluding the repeat offender from the construction
industry. Why is there is no regime of demerit points for OHS recidivists?
Instead, the law reveals its majesty by excluding WA organiser Joe
McDonald from job-sites for six years while Wal King flourishes.
secure discounts on their fines through submissions about mitigating
circumstances, by offering statements of contrition, or by entering early
guilty pleas. This leniency contrasts with the ratcheting up of gaol terms
for other violent offenders. In spite of the increase in the prison
population, almost no white-collar criminals are behind bars.
There is no precedent from which to calculate the deterrent effect of
seven years hard labour on a CEO for industrial manslaughter.
Most of the executives who are locked up made the mistake of swindling
other capitalists. The gravity of that offence is revealed by comparing
the $1m. value allowed on each life in the ESSO case with the $19.8m.
fines imposed in 1995 on three ready-mix firms for price-fixing.
Legal complained in March 2000 that
OHS offences were attracting “increasingly large penalties, which in
many cases seem to be disproportional to the seriousness of the
offence.” By way of proof, Andersen’s spokesperson listed recent
fines. The highest was on the NSW State Rail (SRA), with 21 priors, for
which it had been fined a total of $310,000. The court then imposed a
“disproportional” penalty of $420,000 on the SRA after two workers
were hit by a train.
[Two years later, Andersen Legal was itself run down by its complicity in
the Enron fraud.]
a pair of criminologists’ having documented the mildness pervading OHS
punishments, they proposed a gentle pyramid of penalties to give business
executives the space to exercise virtue.
This reliance on “manners gentle” might have had merit when sanctions
were introduced in 1802. Time has run out. Capitalists have had long
enough to repent for more than getting caught. Two other scholars
suggested in 2002 that penalties be reduced for offenders who had
performed “charity work”.
That bargain is sure to appeal to the likes of Transfield’s co-founder,
and arts patron, Franco
Belgiorno-Nettis, who confessed to covering up corruption and strong-arm
tactics “with a veneer of civilisation”.
than these daily doings impede the delivery of even the appearance of
equity to labourers battling for health and safety. The role of law
officers in maintaining social order prejudices the judiciary as much as
it does the police. After the 1991-2 NSW Royal Commission into
Productivity in the Building Industry detailed a sprawl of corrupt
practices conducted through the Master Builders’ Association,
Commissioner Holland did not direct his wrath at the perpetrators, but
railed against the unions for redressing those wrongs by taking the law
into their own hands.
Why could he not see that the unions had taken the law out of the hands of
law-breakers? Also at that
inquiry, Commissioner Gyles attacked the unions for their lawlessness when
they insisted on standards for the removal of asbestos which were stricter
than the regulations prescribed.
The measures that Gyles upheld as legitimate had been made into law
because unions had engaged in the industrial lawlessness that he deplored.
A hypothetical case clarifies which class enjoys the presumption of
innocence: were a dogman to disable a crane in protest against its
owners’ violation of OHS regulations, the law would treat the worker’s
act of self-defence as criminal damage to property. However, the violation
that provoked the damage is considered not truly criminal.
third section has shown how the capitalist is favoured, first, by the
legal codes, and then by a paucity of prosecution, the improbability of a
conviction and the mildness of any penalty. The final segment now goes to
the jurisprudential root of why the law provides employers with
protections more effective than OHS Acts are at preventing wrongs against
workers. To understand why OHS matters are corralled from real crimes is
to locate the majesty of the law within the ruck of getting and spending.
“No fault or flaw”
Equality before the law
professionals acknowledge that disadvantages can flow from differences in
income levels, job status, educational attainments, gender and ethnicity.
Some lawyers compensate for the procedural imbalances by working pro
bono, or by indulging defendants who represent themselves.
A smattering of practitioners will endorse the 1894 jibe made of the
French novelist, Anatole France:
injustices noted by France are far from the whole truth about the law
since its partiality derives from more than income. Confining concern to
spending power or status obscures how “equality before the law”
expresses the partiality enjoyed by the class that dominates the means of
production. For example, the Common Law held that for a Servant to take
risks was part of the employment contract (volenti non fit injuria). On paper, that hazard was countered by the
Servant’s right to refuse commands that put her or him in harm’s way.
Fear of being sacked eroded that protection.
(ii) A wealth of wisdom: Over the winter of 1888, the source of a
worker’s reluctance to exercise that right occurred to Sir Samuel Walker
Griffith, (later first Chief Justice of Australia). As Griffith studied
Marx’s Capital, he identified
the fount of inequality in the bargaining relationship between capital and
labour. Even after workers combined into unions, they remained at a
disadvantage since employers had the resources to sit out a dispute. Once
Griffith acknowledged that all new riches came “by the application of
labour to already existing wealth,” he had to admit that there was
“something radically wrong with the present system, under which capital
is constantly accumulating in greater masses.” He accepted that giving
the workers a larger share of their product could not, of itself, stop
that concentration. The answer was to deprive capitalists of their
Queensland workers looked like putting Griffith’s insights into
practice, he turned the guns on them, literally. As Attorney-General
during the 1891 strike, he sent the military against the shearers at
Barcaldine to take unionists to trial in chains. This assault confirmed
his earlier views about exploitation, sealing his reputation as “Oily
That move is a reminder that repressive elements in the law are never
isolated from ideological ones.
While law professors are memorising Latin maxims, the army and the police
are breaking strikes. To interrogate the law is to pursue this mixing of
violence with rule-making.
Order in the courts
(i) personnel: The legal profession still draws the bulk of its
membership from the better-off. To be admitted to Chambers, barristers pay
ransoms which can appreciate into treasure chests on retirement. In the
interim, fees and share portfolios keep many a lawyer happy as an
apologist for capital. Outsiders prosper by cloning themselves into the
dominant model of class, ethnicity and gender. Yet, even if all legal
practitioners were the offspring of builders’ labourers, the class bias
of the law would stand.
(ii) practices: Lawyers, like the rest of us, become what they do.
Memorising cases brainwashes recruits. The study of contract law, for
instance, encourages them to consider all human conflicts through the
prism of property transfers or monetary exchanges.
In the process, professionals delude themselves that undergraduate degrees
instill objectivity, whereas such training inculcates the illusion that
judges are interpreting the law as a
regime of precedents. Of course, the formulation of legal doctrine remains
remote from the work of the majority of law graduates who serve as
technicians for business by drafting contracts, concocting tax-avoidance
schemes, carrying out the routines of conveyancing, and smoothing a
multiplicity of commercial encounters. Lawyers elevate such doings above
those by other agents of capital, such as accountants, whereas few in
either cohort think
barrister might despise a business client as an unlettered oaf, yet
interpret the law and the world in conformity with how the defendant must
behave to survive as a capitalist. Legal reasoning can prevent jurists
from penetrating even as far as that. When criticising the Royal
Commissioner into the ESSO-Longford explosion for his account of its
“real causes”, Professor Andrew Hopkins showed that the retired High
Court Justice had stopped his pursuit at the boundaries set by the
ascription of criminal responsibility, which was short of the causal
chains traceable by a systems engineer, or political economist.
of the styles of interpretation that are drilled into undergraduates
deflect attention from the links between legal reasoning and social
conflicts. Under the first treatment, the courts claim to apply only what
the drafters of an Act had intended. Nonetheless, across 86 years, the
High Court twisted “absolutely free” in Section 92 of the Constitution
from its drafters’ original intent of prohibiting tariff barriers
between the States into a bar against nationalisation and road taxes.
the second method, judges swear that they limit their interpretations to
the wording of the Act, independent of every consideration other than a
dictionary and an 1846 book on logic; this “black letter” game also
deteriorates from “O’Grady says” to “I say O’Grady says”.
legal sects revel in the intricacies of logic-chopping, their self-esteem
dependent on a mastery of case law and a talent for picking their way
through precedents. Advocates engage in verbal gymnastics to secure
sectional interests behind a display of terminological exactitude. Hence,
an injured labourer who attends court expecting justice finds lawyers from
each team behaving like Humpty-Dumpty in Alice
Through the Looking-Glass:
a class society, the courts are left to wrangle about how to apply prior
mastery over the production of wealth, with judges welding original intent
to black letter as the occasion demands.
third approach is openly contextual, with its devotees seeking to connect
their interpretations with changes in the economy.
The outcomes are not always progressive, as was shown in 2006 when the
High Court advanced the global interests of corporate capital by
validating WorkChoices under the corporations power (Section 51 xx), which
some framers of the Constitution had hoped might safeguard workers and
consumers against price-fixing cartels.
Although constitutional cases are couched in abstruse precepts, they too
regulate capital and labour. For example, after forcing the fathers of the
Australian Constitution to accept a right of appeal to the Privy Council,
Colonial Secretary Joseph Chamberlain assured the House of Commons in 1900
that he had done so to protect “the private interests of investors”.
(iii)(a)Contracts: Contracts bring the three styles of interpretation
together under the roof of commerce. For the lawyer, there is little or no
thinking outside the contract. Family relationships come to be viewed
through their implied presence. Bourgeois political philosophy and
economics assume that societies are formed by autonomous individuals
entering into Rousseauian contracts. Their ubiquity in thought and deed
means that any jurist who seeks to hedge the power of an individual
capital, is, in turn, constrained by a corpus of contractual precedents
which had the growth of aggregate capital as its reason for being. Whether
those links extend beyond the everyday affairs of the profession to
establish the law’s philosophical matrix is the point in contention.
majority of commentators represent jurisprudence as reasoning to achieve
justice. More conscious champions of market forces have countered that
hypothesis by integrating their analysis of law with that of economics.
They treat rights as commodities to be traded at optimal prices. By
viewing the law through the lens of a cash nexus, the
“law-and-economics” school makes explicit much that is covert in the
standard accounts. Its members discern in the Common Law a field traversed
by economists, legislators and corporate executives as often as by
jurists. Accordingly, what is “just” is whatever minimises the cost
for the parties to a contract. The objective of legal thought, therefore,
is not the pursuit of an ideal labeled “justice” but an optimal
allocation of resources. Some equate the pair. Others see their mutuality
confirmed by the interpenetration of economic and legal topics such as
freedom of contract and property rights. The law-and-economics school
illustrates this overlap from the difficulties that the law has in holding
either corporations, or their officers, responsible for torts and Adam
Smith’s account of the principal-agent problem which occurs wherever
owning is separated from management. Such examples, by themselves, can do
no more than invite us to ask whether the law is one more system for
promoting economic efficiency, parallel with those conducted by
accountants, economists, engineers and managers.
If so, the explanation resides beyond their techniques.
doctrines have been distilled from centuries of social upheaval, leaving
the logic of the law as the residue of victories, defeats and compromises.
Jurists codify courtroom decisions that follow from multiplicities of
social conflicts. Legal traditions do not inscribe a class bias in the
law; rather, those legacies are the coagulation of the outcomes from
centuries of conflict.
Because class struggle keeps one class dominant, not omnipotent, the
relative autonomy of the law is understood best as an unstable consequence
of the relative strengths of contending classes.
For instance, OHS laws resulted from the growing power of labour. In
extracting internal coherence, the courts crafted a rationality of their
own, which, Lord Chief Justice Goddard admitted in 1951, is not always
Rarely is that malaise more telling than in the effect that the Common Law
doctrine of “intent” has on occupational health and safety.
(iii)(b) Intent: For an action to be considered criminal, its
perpetrator must intend to commit harm, that is, to possess a “guilty
mind” (mens rea).
The rare OHS conviction depends on establishing negligence not malice,
recklessness rather than rapacity. A
prosecutor has little hope of convincing a jury that a builder set out to
harm a labourer. As a Sydney employer put it in 1908: “A contractor does
not take a job to slaughter men; but at the same time he has to make a
Notwithstanding this denial, his kind made their living by taking away the
lives of rock-choppers in the Sydney sewers.
from producers of snuff movies, capitalists do not hire workers for the
purpose of injuring them. Rather, the intent of every boss is to benefit
from an application of the labourers’ capacities. The employers as a
class do not intend to injure their workforce, although their
profitability depends on practices that lead to injury, and repeatedly so.
No one denies that profit is the intention of business. Indeed,
corporation law obliges company directors to maximise returns for
shareholders. Nonetheless, OHS laws fail to connect an intent to profit
with an intention to harm. The employers accept some element of
risk-taking; they intend to increase profit; they do not intend the harm
itself. So it goes.
a guilty mind is so often impossible to demonstrate, legislatures have
enacted statutes to remove the need to prove intent in a few instances.
For example, employers now have an absolute liability to pay premiums for
workers’ compensation, and the courts accept that chronic forgetfulness
is no defence. However, judges undermine laws that impose a lesser
liability on an employer who fails to ensure that his workplace is safe.
They set the highest test of intent for securing a conviction but a lower
one when setting the penalty.
In presiding at an OHS case, the magistrate performs like the little
figure in a cuckoo clock. On first appearance, his Worship categorises the
violation as criminal and insists on the toughest standards of proof, that
is, a guilty mind. Should a prosecutor manage to establish gross
negligence leading to injury, this magistrate swivels out of sight to be
replaced by a look-alike who treats the offence as not being a real crime,
hence meriting only a modest fine and a homily to behave better.
double standard is not the result of slackness in the drafting of statutes
or some flaw in the doctrine of intent. The bias arises from the inability
of bourgeois ideologues to connect the necessity that capital has to
expand with the prevalence of harms. At issue is whether “accidents”
serve any purpose. In 2007, fifteen Australian workers suffered a serious
injury every hour, one died each day from injuries and four more from
Few of those torts are a matter of gross negligence on the part of
employers or their agents. The harms are part of the norms of
profit-taking. The courts, however, consider each injury as an incident
rather than as a component in that process.
This compartmentalising further dissociates hazards from their role in
maximising profit. The difficulties that legal professionals have in
pursuing that connection is abetted by the peculiarity of the employment
relationship between capital and wage labour. Its exploitative core is
concealed in an exchange which seems to be just.
strand of bourgeois thought, whether in economics or the law, denies that
exploitation is intrinsic to the exchange between capital and wage-labour.
Conventional wisdom holds that
employers who pay the wages prescribed by law have given “a fair day’s
pay”. The owners of productive property rebut all intention of robbing
their employees. Indeed, expropriation of surplus value is not the same as
filching some part of an Award wage. The expropriation of surplus value is
distinct from the paying of wages at a level beneath the socially
necessary costs of reproducing labour power. Property need not be theft.
Notwithstanding the divide between exploitation and robbery as concepts,
capitalists weave them together in their practices. In turn, their OHS
negligence becomes bound up with financial misdeeds, the business
“plan” combining swindles with the speed-ups and the skimping that
increase the injuries. By documenting this tangle of misbehaviours, it
will become permissible to ask why legal reasoners have not used the
interlocking of offences to refashion the doctrine of intent to make OHS
violations real crimes.
(iii)(d) A culture of rogues: In the building
game, an honest employer is hard to find. Stealing from workers happens on
the hour. In the 1880s, Master Builders pocketed the penny a day that
labourers paid for insurance. One hundred years later, employers were not
paying insurance levies for compensation.
In 2007, the Workplace Ombudsman prosecuted one of the actors in a
government TV commercial promoting WorkChoices for underpaying two of his
teenage brush-hands by $13,000.
At the same time, the non-payment of Superannuation contributions by
employers was so rampant that the Australian Tax Office (ATO) operated a
task force to track down defaulting bosses. After the ATO retrieved $93m.
from 234 offenders, the Deputy-Commissioner confessed that they were
“only a small part” of the offenders who, he admitted, were very
difficult to catch.
charge-sheet against employers does not stop at underpayment. Contractors
infringe several laws to retain the largest possible slice of surplus value as their profit after tussling with bankers, clients and
suppliers. Those contests impel employers to break laws on the
environment, safety and taxation. Messrs Construction Capital prosper on
tax evasion sanitised as avoidance. “Phoenix” companies turn their tax
and Super liabilities into grounds for bankruptcy, only to rise from the
ashes having driven their creditors into genuine insolvencies.
The survivors flourish on collusive
tendering and price-fixing.
Contractors also gain from their despoliation of the natural, built and
who resist these norms are the most likely to be eliminated by the
competitive force of the market. The imperative behind making workers take
risks is felt irrespective of the contractors’ morals.
They may be kind-hearted, but once they allow conscience to guide more
than their PR releases, they are in danger of being driven out of
business. Even conglomerates do not operate in circumstances chosen by the
gun hired from the St James Ethics Center.
a result, labourers deal with regiments of employers who intentionally
break several laws. When a worker is injured on-site, the legal status of
that harm is not increased by these other offences. Nor will a conviction
over any of those matters be mentioned at an OHS hearing. Indeed, hardly
more of them are prosecuted than are OHS violations, and when they are,
the courts again consider few of the charges to be real crimes.
jurisprudence shows its class nature by not handling OHS offences in the
same way as it does the felonies or misdemeanours for which the
prosecution is relieved of the need to establish intent. For instance,
when snatching a hand-bag results in breaking the victim’s arm, the law
looks upon that injury as if it had resulted from a deliberate assault.
The guilty mind essential to establish criminality carries over from the
intended theft to its unintended consequence as bodily harm. By contrast,
prosecutors do not attempt to connect OHS offences with the absolute
liability offence of failing to pay compensation premiums. Yet those
violations are sides of the same coin around building sites. Aggregating
them on a charge sheet suggests a means to lever OHS breaches closer to
being punished as real crimes. That such a prospect is missing from the
debate is a tribute to the hegemony of the bourgeois version of
individualism as autonomy.
(iii)(e) Individualism: The law holds people
responsible for what they do and not for what they are.
This premise avoids the fact that what capitalists are able to do
in relation to a wage-earner expresses their being
capitalists, that is, their personifying capital, just as the wage-slave
embodies labour-time. Without control over the means of production,
capitalists are not in a position to harm: to harm, they have to possess
or control property that is productive of surplus value.
ideologues were portraying capitalists as autonomous individuals, the
controllers of productive property knew better and oversaw the expansion
of their capitals by aligning three forms of collectivism - joint-stock,
limited liability and the corporation. From the 1820s, the joint-stock
company allowed individuals to pool their money-capitals. That
combination, however, confronted each capitalist with the danger of being
held responsible for the debts incurred by the combination. By 1860,
lawyers for “limited liability” had solved the problem of how to be
“in” for the profits, yet “out” for the losses. Henceforth,
investors were not liable for more than the sums they had subscribed.
Their other assets were quarantined.
next generation of investment vehicle – the non-Chartered corporation -
came under threat of arbitrary processes from legislatures promoting
public health or breaking up Trusts. During the final quarter of the
nineteenth century, the US Supreme Court allowed “due process” rights
to corporations, granting them the status of a “legal person”.
Jurists had landed themselves with another paradox. If only a living
person can form an intent, how were the courts to apply the criminal law
to this half-thing/half-person? The good news around the boardrooms was
that corporations had “no body to kick, no soul to damn”.
the law assumes that corporations face difficulties in acting, it accepts
that they can fail to act. Nonfeasance is possible where misfeasance is
How is it that an entity which cannot act is held accountable for
conforming to its essence? Injured labourers should be grateful for this
instance of il-logic within the law since establishing failure to act
offers them their best chance of convicting a corporation, or its agents.
(iii)(f) Corporate immunity: To bring a corporation to book, the law
has to uncover a “directing mind”. Hence, the prosecutor tries to
identify a living person (official) as responsible for the harms of a
legal person (corporation). With knowledge distributed throughout
organisations, defence lawyers play ducks and drakes with the “directing
mind”, turning the doctrine of identification into an escape hatch from
the efforts by prosecutors to aggregate the decisions that led to an
In a 1995 case, the judge determined that the failure by a supervisor to
follow orders had been the cause of a worker’s death, before going on to
rule that the employing corporation was not guilty, despite its not having
had a system to ensure that its supervisors were carrying out company
In 2003, the Victorian Supreme Court overturned an OHS conviction of a
company official because the prosecution had not proved that the accused
had held all the knowledge necessary to be deemed responsible. A NSW judge
went further in 2007 by finding that company directors were not liable
unless “complicit in contravention”.
obstacles to securing a verdict against a corporation or its senior
officials become clearer by contrasting their prospects for acquittal with
the fate of an owner-operator. Suppose both types of employer have allowed
labourers to climb without harnesses, in contravention of OHS laws. For
the small business, the chain of command goes from the owner to himself.
The corporation, however, is a multiplicity of living persons. The upshot
is that on-site proprietors are vulnerable while corporations and their
executives enjoy “de facto
second question flows from this answer to the first: will the law ever
consider killing, when done for profit, as murder? Well … it is
conceivable that working-class pressure on a reform-minded legal
profession - over a further 200 years - could extend the rule about the
unintended consequences of a felony to treat some OHS violations as real
crimes. What will forever be impossible under capitalism is to consider
the appropriation of surplus value as an offence comparable to the
non-payment of wages. The injured labourers who receive all their
prescribed entitlements have no stem connecting their workplace harms to
other offences by their employers. Forging that connection will require
legal reasoners to injure aggregate capital instead of steering its
Our third question begs for an answer to why it is that progressive lawyers have difficulty in promoting so temperate a shift in class relations, unless the answer lies in those relations. As pointed out earlier, lawyers become agents of capital whenever they cannot think beyond the limits that the capitalists do not go beyond in their profit-taking. The failure among the establishment to reason out how killing for profit might be treated as murder is to be expected. That this bias has overtaken many in its radical wing is partly the result of the triumph of neo-liberalism since the 1970s, with its Schools of Business and Management. Nonetheless, even when the Left was on the ascendant in academe, legal progressives were burdened with an ideological impairment. Marxism-Leninism recognises that the creation of socialism requires driving beyond the seizure of the capitalist state: that apparatus must then be smashed by working people’s emancipating ourselves through the creation of new forms of power. There’s the rub. Progressive lawyers – whether as once-upon-a-time social democrats, or now as New Labour - aimed to rewrite the content of the laws and then to enforce those reforms. While they allowed space for worker control over safety, they showed less enthusiasm for workers’ remaking the law as both content and form, on and off sites. The reluctance of radicals to break through the web of legal reasoning in order to consider OHS violations as real crimes expresses a politics which dares not contemplate destroying the bourgeois state.
chapter began by observing that statistics on injury and disease remain
abstract until situated within the struggle between classes.
Data and concepts gain concreteness within the context of the exploitation
that capital achieves through the disciplining of labour-time. One strand
of intellectuals dismisses this approach as metaphysical, on the grounds
that such conjectures are not open to refutation.
For the materialist dialectician, refutation comes from human activity,
and is not to be attained through linguistic analysis or induction.
Disproof, like proof, “must be derived from history itself.”
Only then, as Marx wrote, can the “mysteries which mislead theory into
mysticism find their rational solution in human practice and in the
comprehension of this practice.”
test of practice for the class analysis that informs A
framework of flesh was set forth in statements by two Secretaries of
the Victorian Branch of the ABLF. In 1916, Henry Hannah remarked:
“Imagine the master builders, as we know them, sharing their profits
with us after the way they have fought to prevent us securing a living
Nearly fifty years later, Norm Gallagher rejected the possibility of a
peaceful transition to socialism: “The way the employers were opposing
our demands, I couldn’t see them handing over the means of production to
the workers without a revolution.”
way to refute this chapter’s representation of the law and jurisprudence
as instruments of class rule is by proving those two union officials wrong
about the implacable nature of the class struggle. The bar for doing so
need not be set very high. Not every boss will need to emulate Civil &
Civic by profit-sharing. Still less will the owning class have to
surrender the keys to their earthly kingdom. All that is required to
refute the hypothesis that killing is not murder when done for profit will be for the ALP
government to instruct the Australian Building and Construction Commission
to harrow Messrs Construction Capital with the zeal that the ABCC’s
enforcers have used against builders’ labourers and their unions as they
battle for health and safety.
 Karl Marx, Capital, III, Penguin, Harmondsworth, 1981, p. 183.
Eric Williams, Capitalism and
Slavery, Capricorn Books,
Edward W. Said, Culture &
Imperialism, Chatto & Windus,
Hugh Tinker, A new system of
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 Douglas Hay and Paul Craven (eds), Masters and servants and Magistrates in Britain and the Empire, 1562-1955, University of North Carolina Press, Chapel Hill, 2004.
Quoted in E. J. Hundert, “The Making of Homo
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Adam Smith, Lectures on Jurisprudence,
Max Weber, The Protestant Ethic and the Spirit of Capitalism, Charles
Scribner’s Sons, New York, 1958, pp. 23-24, 54-55 and 57;
“Politics as a vocation”, From
Max Weber, Essays in Sociology, (eds) H. H. Gerth & C. Wright
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 Quoted Peter Sheldon, “Job Control for Workers’ Health: the 1908 Sydney Rockchoppers’ strike”, Labour History, 55, November 1988, p. 43.
 Maurice Dobb, Political Economy and Capitalism, Routledge and Kegan Paul, London, 1944 edition; Simon Clarke, Marx, Marginalism and Modern Sociology, From Adam Smith to Max Weber, Macmillan, London, 1982.
Michael Thad Allen, The business
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Sandra Halperin, War and Social Change in Modern
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 Elizabeth A. Fones-Wolf, Selling Free Enterprise: The Business Assault on Labor and Liberalism, 1945-60, University of Illinois Press, Urbana, 1994; Alex Carey, Taking the risk out of Democracy, corporate propaganda versus freedom and liberty, University of Illinois Press, Urbana, 1997, Chapter 2; Kim Phillips-Fein, “ ‘If Business and the Country Will be Run Right’: The Business Challenge to the Liberal Consensus, 1945-1964”, International labor and working-class history, 72, 2007, pp. 192-215.
 Michael Lebowitz, “Capital and the production of needs”, Science and Society, 41 (4) Winter 1977-78, pp. 430-47.
Quoted Karl Marx, Capital,
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Building & Engineering
 Western Australian Industrial Gazette, 40 (3 & 4), p. 671.
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Jeffrey W. Reimer, “‘Mistakes at Work’: The social organisation
of error in building construction work”, Social
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Ian Abley, Why is Construction
so Backward?, Wiley,
For the example of lift-slabs see Building
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January/February 1960, p. 15; K. McGrath, “Problems of Modular
Standardisation in the Australian Context”, Builder,
20 August 1965, pp. 10-15 & 60; Building
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Engineering and Machinery, April 1913; cf. Australian Engineer,
 Australian Trades & Labour Journal, 12 October 1889, p. 4; Trades Hall Gazette, 2 February 1889, p. 10; Builder and Contractors’ News, 20 September 1890, p. 216; Transcript of 1913 Award Hearings in the Commonwealth Conciliation and Arbitration Commission, Australian Builders’ Labourers’ Federation v A. W. Archer, (hereafter 1913 Transcript) Australian Archives B1958 (B1958/1) 9/1912, p. 136; Victoria, Parliamentary Debates, v. 161, 4 October 1922, pp. 1666-7; Jack Mundey, Green bans and beyond, Angus & Robertson, Sydney, 1981, p. 33.
Australian Builders’ Labourers’ Federation, Queensland Branch
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NSW Executive, 18 June 1963, Mitchell Library MSS 4879, Box MLK02475.
Karl Marx, Capital, II,
Foreign Languages Publishing House,
Stewart Wallis, “Renaissance ’84 and the Rebirth of
Development”, BOMA Magazine,
9 (8), November 1984, pp. 20-24; Graham French, “A Stitch in
time”, Building Science Forum Australia, Symposium,
26 August 1987, unpaginated; Frank Bromilow, Martin Hinds and Norman
Moody, The Time and Cost
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McQueen, “Making capital tick”, Overland,
170, Autumn 2003, pp. 92-101.
 Clare Mayhew, M. Quinlan and L. Bennett, Effects of subcontracting/outsourcing on occupational health and safety, IRRC Studies in Australian Industrial Relations, No, 38, UNSW, Kensington, 1996, pp. 123-6; Royal Commission into the Building and Construction Industry (RC), Final Report, Canberra, 2003, vol. 6, pp. 43-44.
Parliament House Construction Authority, Response to the Auditor-General’s efficiency audit report on the new
Parliament House project, AGPS,
 Peter Grabovsky and John Braithwaite, Of Manners Gentle, Enforcement Strategies of Australian Business Regulatory Agencies, OUP, Melbourne, 1986, p. 59.
 Report of the NSW Government Commission of Inquiry into Occupational Health and Safety, NSW Parliamentary Papers, 4th Session, 1981, pp. 154-9.
 Australian Safety News (ASN), February 1999, p. 46.
 First Report of the Central Board of His Majesty’s Commissioners for inquiring into the Employment of Children in Factories, Commons Papers, 1833, vol. XX, pp. 61-62.
Peter Rozen, “Significant Change or Merely Fine-Tuning? The
Occupational Health and Safety Act 2004 (Vic.)”, Australian
Journal of Labour Law (AJLL),
18 (1), April 2005, p. 81 n. 14; Liz Bluff and Richard Johnstone,
“The relationship between ‘reasonably practicable’ and
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 Hard Hat, March 2004, p. 14.
Quoted W. G. Carson, The
Challenge of White Collar Crime, La
Harry J. Glasbeek, “Crime, Health and Safety and Corporations:
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Robin Edwards, “Corporate Killers”, Australian
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169 at 170-77.
 Jonathan Clough, “A Glaring Omission: Corporate Liability for Negligent Manslaughter”, AJLL, 20 (1), April 2007, p. 37; National Safety, February 2005, pp. 16-20.
W. T. Carson, “The Dupes of Hazard: Occupational Health and Safety
and the Victorian Sanctions Debate”, Australian
W. T. Carson, “Symbolism and Instrumental Dimensions of Early
Factory Legislation: A Case Study in the Social Origins of Criminal
Law”, Roger Hood (ed.), Crime,
criminology and public policy: essays in honour of Sir Leon
Radzinowicz, Heinemann, London, 1974, pp. 132-33; Carson, “The
Dupes of Hazard”, 1990, pp. 132-3; Richard Johnstone,
“Occupational Health and Safety Prosecutions in Victoria, An
Historical Survey”, AJLL,
16 (2), August 2000, pp. 113-42.
 Work Hazards, August 1988, p. 4.
 Victorian WorkCover Authority (VWA), Annual Report, 1999-2000, p. 7.
 VWA, Annual Report, 2004, p. 30.
J. Clough and C. Mulhern, The
Prosecution of Corporations, OUP, South Melbourne, 2002, p. 218;
Glasbeek, Working paper, No. 29, 2003, pp. 17-18; Andrew Hopkins, Lessons
from Longford: the Esso gas plant explosion, CCH Australia, North
Ryde, 2001; NSCA’s Australian
Safety, August 1999, p. 6 and 50-54.
 NSCA’s Australian Safety, November 2000, p. 54.
National Safety (NS),
August 2005, p. 20; C. McLean, “The impact of prosecution on
workplace prevention”, Journal
of Occupational Health and Safety,
NS, December 2007, pp.
 NS, September 2007, p. 22.
 For magistrates, see Carson, “The Dupes of Hazard”, 1990, pp. 132, 134 and 140; for one judge’s wrestling with this indulgence, see 190 ALR (2002) 169 at 176.
 Compare 10.5.2 and 10.5.5 with 10.9.6 in NSW Casino Control Authority, Report of Public Inquiry, 1994, pp. 31-35
 Australian, 22-23 November 1997, p. 60.
 NS, February 2007, p. 28.
 ASN, February 1999, pp. 46-48.
 NS, September 2007, p. 22.
 NSCA’s Australian Safety, November 2000, p. 56.
 Work Hazards, August 1988, p. 10.
 Joint edition of New Doctor/Legal Services Bulletin, 9 (1), February March 1984, p. 37.
 Quoted Grabosky and Braithwaite, Of Manners Gentle, p. 176.
 Age, 4 May and 28 May 2004, p. 3; the case did not appear in the “Legal Affairs” section of the Australian Financial Review; Australian, 22-23 November 1997, pp. 59-60; VWA, Annual Report, 2004, p. 31.
E. F. Hill. Industrial Deafness, Current Problems in Law, v. 18, Leo Cussen
Institute for Continuing Legal Education, Melbourne, 1982, p. 19.
NSCA’s Australian Safety,
March 2000, pp. 56-57, and December 2000, p. 5; cf.
Sue Streets, “Prosecuting Directors and Managers in
VWA, Annual Report, 2004-5,
p. 31; McLean, “The impact of prosecution”, JOH&S
ANZ, 1998, pp. 517-21.
 Christine Parker, Paul Ainsworth and Natalie Stepanenko, The Impact of ACCC Enforcement Activity in Cartel Cases, Working Paper, ACCC Enforcement and Compliance Project, ANU Centre for Corporation and Consumer Policy, May 2004, pp. 29-35; The Pre-Mix Concrete Octopus, ABWF, Greensborough, 1969.
 ASN, February 1999, p. 46.
Susan E. Squires, Inside Arthur
Andersen: shifting values, unexpected consequences, Financial
 John Braithwaite and Peter Grabovsky, Occupational health and safety enforcement in Australia: a report to the National Occupational Health and Safety Commission, Australian Institute of Criminology, Canberra, 1985, pp. 104-7; Grabovsky and Braithwaite, Of Manners Gentle ,pp. ????;
 Clough and Mulhern, The Prosecution of Corporations, pp. 187-8.
Gianfranco Cresciani, Transfield
The First Fifty Years, ABC Books,
 for Leighton’s collusive tendering see Royal Commission into Productivity, Report, Parliamentary Papers, vol. XXII, Paper 273, pp. 99 and 130, and NSW Casino Control Authority, Report of Public Inquiry, 1994, p. 32; for the corporate gloss, see Stephanie King, Leighton: fifty years, Technical Services, Sydney, 1999, pp. 96-97.
 NSW RC, vol. XX, Paper 267, pp. 24-27 and 404-7.
 NSW RC, vol. XXI, Paper 272, pp. 156-206.
Frederick Engels, Ludwig
Feuerbach and the End of the Classical German Philosophy, Foreign
Languages Publishing House,
 Engels, Ludwig Feuerbach, pp. 80-81.
 John Chesterman, “The Making of the Australian New Left Lawyer”, Australian Journal of Legal History, 1 (1), 1995, pp. 37-50.
 William Tighe, Law as between master and servants and the law of employers’ liability in New South Wales, Law Book Co., Sydney, 1905, pp. 135-43.
S. W. Griffith, “The Distribution of Wealth”, Centennial
Magazine, 1 (12), July 1889,
pp. 833-42, and H. P. Tregathen, “Some Criticism on the
‘Distribution of Wealth’”, 2 (1), September 1889, pp. 93-96; the
organisation by workers stirred less favourable and ill-informed
comments on Marx’s account of capital, Australian Economist, July 1890, pp. 46-48, August 1890, pp. 60-61
and September 1890, pp. 67-70; see also Peter Groenewegen and Bruce
McFarlane, A History of
Australian Economic Thought, Routledge, London, 1990, chapter 4.
Roger Joyce, Samuel Walker
Griffith, University of
Louis Althusser, “Ideology and Ideological State Apparatuses (Notes
towards an Investigation)”, Lenin
and Philosophy and other essays,
New Left Books,
Elizabeth Mertz, The Language of
rephrased from Karl Marx, “The Eighteenth Brumaire of Louis
Collected Works, Volume
11, Lawrence & Wishart,
 J. A. La Nauze, “A little Bit of Lawyers’ Language: the History of ‘Absolutely Free’, 1890-1900”, A. W. Martin (ed.), Essays in Australian Federation, Melbourne University Press, Carlton, 1969, pp. 94-121; L. Zines, The High Court and the Constitution, Butterworths, Sydney, 1987, chapters 6-8; Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion of High Court of Australia, OUP, Melbourne, 2001, pp. 354-6.
 For the defeat of efforts to make this approach the foundation of legal education, see Australian Journal of Law & Society, 5, 1988-89.
 See debates for the 1906 Australian Industries Preservation Act, Commonwealth of Australia, Parliamentary Debates, volume 31, 14 June 1906, p. 243, but then held to be ultra vires, 8 Commonwealth Law Reports (CLR) (1908) 330, until overturned 124 CLR (1971) 468.
Quoted in J. A. La Nauze, The
Making of the Australian Constitution, MUP,
 The school is associated with the Journal of Law and Economics (1958-), its long-time editor R. H. Coase, author of the eponymous Theorem, and latterly with the advocates of “public choice” who extended the assumptions to politics; for an introduction, see the entries in John Eatwell et al, (eds), The New Palgrave’s, A Dictionary of Economics, Four Volumes, Macmillan, London, 1987; for a rejection see R. Cranston, “Creeping Economism: Some Thoughts on Law and Economics”, British Journal of Law and Society, 4, 1977, pp. 103-15.
 Engels, Ludwig Feuerbach, pp. 80-82.
 For one instance of such a shift see Rob McQueen, “Master and Servant Legislation as ‘Social Control’: The Role of Law in Labour Relations on the Darling Downs 1860-1870”, Law in Context, 10 (1), 1992, pp. 123-39.
Quoted David Ross, Crime, LawBook Co., Sydney, 2002, p. 692.
 157 CLR (1985) 523.
 Quoted Sheldon, Labour History, 1988, p. 43.
 Carson, “The Dupes of Hazard”, 1990, p. 138.
NS, October 2007, pp. 33-35.
Richard Johnstone, “Occupational health and safety, courts and
crime: the legal construction of OHS offences in
 Marx, Capital, I, Part III; Karl Marx, “Wage Labour and Capital”, Marx-Engels, Collected Works, volume 9, Lawrence & Wishart, London, 1977, pp. 198-204; and Karl Marx, Value, price and profit, International Publishers, New York, 1935.
 Nowhere is this denial more risible than in the 1937 foundation text of the “law-and-economics” school, when Coase established his reputation by asking a question of stupefying shallowness: “Why, in a free-enterprise economy, would a worker voluntarily submit to direction by an entrepreneur or an agent instead of selling his own output or service directly to customers in the market?”, in “The nature of the firm”, Economica, 4, November 1937, pp. 386-405. The answer that Coase and his devotees dare not hear is that the sale is far from “voluntary” because the workers, or their forebears, had been stripped of the production goods necessary for them to have anything to sell other than their labour power. However, should they rely on a trade union as the “agent” for handling the transaction costs of selling their sole “output or service”, they are accused of subverting the freedom of contract.
Sydney Morning Herald (SMH),
Peter Merity, “Paradise Postponed: A History of Attempts to Ensure
Payment in the Building and Construction Industry of New South
Wales”, Business and
Construction Law, 18 (3), June 2002, pp. 169-79; Keith Redenbach,
“Getting paid in the construction industry – national
perspective”, Building and Construction Law, 23 (2), April 2007, pp. 92-110; Royal
Commission into Productivity in the Building Industry in New South
Wales, Report, volume 1,
Sydney, NSW, Parliamentary
Papers, Second Session, 1992-93, volume XXI, Paper 269, pp. 24-53;
RC, Final Report, 2003, vol. 8, pp. 111-207, for phoenix companies;
and vol. 9, pp. 9-47
for superannuation non-compliance; pp. 49-99 for tax evasion, and pp.
255-64 for non-payment of premiums for workers’ compensation.
 NSW Casino Control Authority, Report of Public Inquiry, 1994, p. 32; for Leighton’s collusive tendering see Report of NSW Royal Commission on Building Productivity, NSW, Parliamentary Papers, Second Session, 1992-93, vol. XXII, Paper 273, pp. 99 and 130; NSW Master Builders’ Association, Annual Report, 1911, no pagination; Report of the Royal Commission of inquiry into certain matters relating to the Department of Public Works, NSW, Parliamentary Papers, 1911, volume 1, pp. 681-926.
Streets, “Prosecuting Directors and Managers in
Andrew Fraser, “Legal Theory and Legal Practice”, Arena,
44-45, 1976, p. 126; G. H. Boehringer, and Michael Tubbs, “The
Law’s History: A Materialist Perspective”, Legal
service bulletin, Special Issue, January 1979, pp. 30-35; cf.
Brent Fisse and John Braithwaite, “The Allocation of Responsibility
for Corporate Crime: Individualism, Collectivism and
Accountability”, Sydney Law
Review, 11 (3), March 1988, pp. 474-6.
Humphrey McQueen, The Essence of
 Gerald Acquaah-Gaisie, “Corporate crimes: criminal intent and just restitution”, Australian Journal of Corporate Law, 13 (2), September 2001, pp. 219-28.
Clough and Mulhern, The Prosecution of Corporations, p. 181.
Clough, “A Glaring Omission?”, AJLL,
April 2007, p. 34; cf. Richard Johnstone and Therese Wilson, “Take
Me to Your Employer: The Organisational Reach of Occupational Health
and Safety Regulation”, AJLL, 19 (1), April 2006, pp. 59-80.
 Clough and Mulhern, The Prosecution of Corporations, pp. 176-7.
 NS, December 2007, pp. 20-22.
Clough, “A Glaring Omission?”, AJLL,
April 2007, p. 51; Neil Foster, “Personal Liability of Company
Officers for Corporate Occupational Health and Safety Breaches:
Section 26 of the Occupational Health and Safety Act 2000 (NSW)”, AJLL,
18 (2), August 2005, pp. 132-4, and “The CAMAC Report on Personal
Liability for Corporate Fault – a Critique from the OHS
perspective”, AJLL, 20
(1), April 2007, pp. 112-8.
 For instance, Graene Kowe and Rob McQueen’s review of Pat O’Malley’s Law, Capitalism and Democracy, Australian Journal of Law and Society, 2 (2), 1985, p. 86.
Karl Marx, The Civil War in
France, Foreign Languages Press, Peking, 1966; V. I. Lenin, The
State and Revolution, Foreign Languages Press, Peking, 1965; Georg
Lukacs, Lenin, New Left Books, London, 1970; Louis Althusser, Lenin
and Philosophy, NLB,
 Terrell Carver, Karl Marx, Texts on Method, Basil Blackwell, Oxford, 1975; G. W. F. Hegel, Hegel’s Logic: being part one of the Encyclopedia of the philosophical sciences (1830), Oxford at the Clarendon Press, Oxford, 1975; Richard Levins, “Dialectics and Systems Theory”, Science and Society, 62 (3), Fall 1998, pp. 375-399; Karl Marx, “Introduction”, A Contribution to the Critique of Political Economy, Progress Publishers, Moscow, 1970, pp. 188-217; Bertell Ollman, Dance of the Dialectic, Steps in Marx’s Method, University of Illinois Press, Urbana, 2003, chapter 5; Hiroshi Uchida, Marx’s Grundrisse and Hegel’s Logic, Routledge, London, 1988; cf. Jon Rothschild, “Translator’s Preface”, Galvano Della Volpe, Logic as a Positive Science, New Left Books, London, 1980, pp. vii-xviii.
Karl R. Popper, Conjectures and
Refutations, The Growth of Scientific Knowledge, Routledge and
 Engels, Ludwig Feuerbach, p. 89.
Marx-Engels, Collected Works,
Builders’ Labourers’ News,
Edwin Klein’s interview with Gallagher, National Library of
Australia, Oral History, TRC 2301/82, Transcript, p. 14.