Maxwell noted advantages of placing a positive duty on officers, stating:
‘…there is in my view a strong case for placing officer liability on the same basis as company liability and employee liability. As already discussed, a company will not be guilty of an offence unless it could prove that it failed to take those steps that were reasonably practicable in the circumstance – that is, it failed to do that which it could reasonably have been expected to do.
In my view, a similar test should apply to officers. Where a company commits an offence, an officer should be liable if it is true that he/she failed to do that which he/she could reasonably have been expected to do in the circumstances to procure compliance by the company or entity having regard to such things as –
what he/she knew about the relevant matter;
what he/she ought to have known about the relevant matter;
his/her ability to make decisions and/or influence decisions within the company in relation to the relevant matter.
In short, the officer should be liable if he/she failed to do whatever was reasonably necessary – to the extent of his/her ability to do so – to cause the company to comply.’242
The recommendation to insert a positive duty on officers was not adopted by the Victorian Government when drafting the current Vic Act.
The alternative to placing a positive duty of care on officers is to incorporate a provision which requires, in the first instance, a breach by a corporation. This is known as attributed liability. However, this stands in stark contrast to the position of all other persons in OHS legislation, who owe positive duties of care to themselves and others, with liability being attributable only to their direct conduct or omissions (or those of officers, employees or agents in the case of a company).
Options
Having regard to the current legislative arrangements in Australia and overseas, together with the submissions made, we consider the following as available options for the liability of an officer under the model Act:
