Penalties should be clearly related to non-compliance with a duty, the culpability of the offender and the level of risk, not merely the actual consequences of the breach.
The nature of criminal liability under OHS offences
Current arrangements
Breaches of duties of care (which we discuss earlier in this report) under Australian OHS laws are typically offences of absolute liability, qualified by ‘reasonable practicability’, however expressed, or, in the case of officers, by ‘due diligence’ and for workers, by ‘reasonable care’.279 Absolute liability means that the offence requires no proof of any mental element (a guilty intention) and that there is no defence of ‘honest and reasonable mistake’.280 Strict liability offences similarly do not require proof of any mental element but allow such a defence.281
