There was limited discussion of this point. A number of stakeholders pointed out that absolute liability in the OHS regime demonstrated that it was different from the normal criminal law and suggested that there should be greater recognition of the differences.
Discussion
Although absolute liability is considered to be an exception to the normal criminal standard,282 it continues to be generally regarded as appropriate for duties of care in OHS legislation, even in circumstances where the penalties have increased substantially in recent years. No strong case has been made for change. We recommend in this report that the duties be qualified by the standards of ‘reasonable practicability’ (see Chapter 5), ‘due diligence’ (see Chapter 8) or ‘reasonable care’ (see Chapter 9), depending on the nature of the duty or the duty holders concerned. This does not affect the type of liability (absolute) that should apply to the offences. The prosecution would have to prove beyond reasonable doubt that those elements were part of the defendant’s conduct.
