Chapter heading 1

Part 2: The Duties of Care (Chapters 4 – 9; Rs 1 – 49)

Part 2 of this report discusses the duties of care to be included in the model Act, including the identification of duty holders and the scope and limits of duties. In chapter 6, we make detailed recommendations about the holders of the primary duty of care. Chapter 7 contains our examination of issues concerning specific classes of duty holders, other than officers (dealt with in chapter 8) and workers and other persons (chapter 9).

In making our recommendations, we are concerned that the model Act provides for:

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  as broad a coverage as possible, to ensure that the duties of care deal with emerging and future hazards and risks and changes to work and work arrangements;
  
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  clarity of expression, to ensure certainty in the identification of the duty holders and that they can understand the obligations placed upon them; and
  
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  the interpretation and application of the duties of care consistent with the protection of health and safety.
  

We therefore propose that the model Act include a set of principles, which will, amongst other things, guide duty holders, regulators and the courts on interpreting and applying the duties of care. There would also be a provision dealing with the common features of the duties. Duties of care should be non-delegable, and more than one person may concurrently have the same duty.

We recommend that there be a primary (or general) duty of care imposed on any person who conducts a business or undertaking (whether as an employer, self-employed person, principal contractor or otherwise) for the health and safety of:

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  ‘workers’ within an expanded definition; and
  
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  others who may be put at risk by the conduct of the business or undertaking.
  

This expression of the primary duty of care would cover new and evolving work arrangements and extend the duty beyond the traditional employer and employee relationship. Therefore, a duty for ‘employers’ to ‘employees’ would no longer be needed.

There is a range of specific classes of persons who we consider should have duties of care under a model Act. These persons include:

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  those with management or control of workplace areas;
  
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  designers of plant, substances and structures;
  
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  manufacturers of plant, substances and structures;
  
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  builders, erectors and installers of structures;
  
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  suppliers and importers of plant, substances and structures;
  
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  OHS service providers;
  
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  officers;
  
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  workers; and
  
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  other persons at the workplace.
  

Each duty of care of care should be qualified by what is ‘reasonably practicable’, apart from duties of care of workers and other persons at the workplace (which should be qualified by ‘reasonable care’) and officers of organisations (which should be qualified by ‘due diligence’).

We consider that ‘reasonably practicable’ is an effective qualifier of the duty of care, and that it is more transparent for it to be contained within the duty of care than provided as a defence. This is significant as the qualifier provides for the reasonableness of the duty and the ability of duty holders to comply with their duties of care. Placing the qualifier elsewhere than in the duty may lead to a perception that the duty is not qualified and is unachievable. That may discourage a duty holder from taking steps to achieve compliance.

The model Act should define ‘reasonably practicable’ (but not include ‘control’ in the definition) to assist the duty holder to understand what is required to comply with the duty of care. The term should be explained in a code of practice or other guidance material.

The model Act should also place a duty of care on any person providing OHS advice, services or products that are relied upon by other duty holders to comply with their obligations under the model Act. These persons may, in providing the services, influence decisions that are critical to health and safety in relation to a specific activity, or across an organisation (e.g., advising on governance structures, safety policies or systems).

We propose that officers of an organisation should have a positive duty to exercise due diligence to ensure their organisation complies with its duties of care, having regard to the officers’ responsibilities and position. Currently, a breach of a duty of care by an organisation is usually attributed to officers without any positive duty placed on them. The duty would make clear that the officer must be proactive in taking steps to ensure compliance by the organisation.

Using a wide definition of ‘worker’, we recommend that workers should have a duty of care to themselves at work and to others who may be affected by the workers’ acts and omissions. They should also cooperate with reasonable action taken by a person conducting the business or undertaking to comply with the model Act. There should also be a limited duty of care on others at a workplace.

Part 3: Offences relating to breaches of duties of care (chapters 10 – 12; Rs 50 – 61)

In Part 3, we discuss the nature and structure of offences relating to the duties of care. We conclude that the offences should be criminal, not civil, and should continue to be ‘absolute liability’ offences, subject to the qualifiers on the duties that we recommend earlier.

We propose making sanctions more related to culpability for breaches than to their outcomes, as well as more effective in terms of deterrence.

We propose three categories of offences. Category 1 would relate to the most serious cases of non-compliance, involving recklessness or gross negligence and serious harm (fatality or serious injury) to a person or a risk of such harm. Category 2 would deal with serious harm or the risk of it without recklessness or negligence. Category 3 would apply to other breaches.

We recommend that the most serious breaches should be indictable offences (permitting trial by judge and jury) as in Victoria and SA.

We recommend significant increases in fines. These would be aligned with the 3 categories of offences. The highest fines would apply to category 1 breaches of the primary duty of care or of the duty held by a specified class of duty holder (other than officers, workers and other persons).

Reflecting the very high level of risk and culpability in a category 1 offence, the maximum fine for a corporation would be $3 million and the maximum fine for an individual would be $0.6 million. Imprisonment for up to five years could also be imposed on an individual for a category 1 offence.

A category 2 breach of the primary duty or of a duty held by a specified class of duty holder (other than officers, workers and other persons) would be subject to a maximum fine of $1.5 million for a corporation and $0.5 million for an individual.

A category 3 offence, for a breach of the above-mentioned duties that does not involve serious harm or the risk of serious harm, would be subject to a maximum fine of $0.5 million for a corporation and $0.1 million for an individual.

There would similarly be three categories of offence and penalties for breaches of the positive duty of care that we recommend for officers. The three categories would have the same criteria as for the offences described above. The fines would, however, be lower, reflecting the lesser capacity of an officer to eliminate hazards and reduce risks. The maximum fine for a category 1 breach (gross negligence or recklessness and serious harm or risk of serious harm) of an officer’s positive duty would be $0.6 million. There could also be a sentence of imprisonment for up to 5 years. The maximum fine for a category 2 breach (serious harm or the risk of serious harm) of an officer’s positive duty would be $0.3 million and the maximum fine for a category 3 breach would be $0.1 million.

As mentioned above, we recommend a duty of care for workers and others who are at a workplace. Again, reflecting the lower level of influence of such persons, the penalties for the three categories of offence would be lower. For a category 1 breach (gross negligence or recklessness and serious harm or risk of serious harm) of the duty of care of a worker or other person, the maximum fine would be $0.3 million. A sentence of imprisonment for 5 years could be imposed. For a category 2 breach (serious harm or the risk of serious harm), the maximum fine would be $0.15 million and for a category 3 breach, the maximum fine would be $0.05 million.

In addition to monetary fines, there should be more sentencing options (remedial orders, adverse publicity orders, training orders, injunctions, compensation orders, community service orders, corporate probation). No jurisdiction presently provides all of them.

Part 4: Other matters relevant to duty of care offences (Chapters 13 – 18; Rs 62 – 74)

Part 4 of our report addresses the burden of proof, appeals, limits on prosecutions, guidance on sentencing, and proposals to avoid duplicity and double jeopardy.

We recommend that the prosecution should bear the onus of proving beyond reasonable doubt all elements of an offence relating to non-compliance with a duty of care. In reaching this conclusion, we have carefully considered the differing views that were put to us, the reasoning in previous reviews and current practice. We also took into account the fact that we recommend substantial increases in the size and range of penalties, and that, in our second report, we will address how the regulators should have strong and wide-ranging investigatory powers.

To reinforce the continuing consistency of harmonised OHS laws, we recommend that an appeal should ultimately lie to the High Court of Australia from the courts in each jurisdiction (recognising that some adjustment may be required to the processes for appeal in NSW and Queensland).

We propose that there be common limitation periods for initiating prosecutions for breaches of duties of care, and that action be taken to develop consistent sentencing guidelines and processes for presenting victim impact statements to courts in appropriate circumstances.

We recommend that the model Act contain provisions to ensure that a complaint or indictment can contain all of the details that show how a pattern of conduct has breached a duty of care (to avoid legal complications from the application of the law relating to ‘duplicity’). We also propose that the model Act clearly state that no one can be subject to ‘double jeopardy’.

We also recommend that there should be no Crown immunity, so that the Crown in all jurisdictions would be subject to the same duties and sanctions as all other duty holders.