Chapter heading 1

TABLE 6: Whether offences are summary or indictable

Jurisdiction	Whether offences are summary or indictable	Comment
NSW	Summary	NSW Act, s.105
Vic	Summary and indictable	Section 112 of the Sentencing Act 1991 (Vic) sets out the rules for differentiating summary and indictable offences.
Qld	Summary	Qld Act, s.164(1)
WA	Summary	WA Act, s.51C
SA	Summary, apart from minor indictable offence, SA Act s.59, endangering a person in a workplace.	SA Act, ss.58(3), 59(2); Summary Procedures Act 1921 (SA), s.5
Tas	Summary	Magistrates Court Act 1987 (Tas), s,3B
NT	Summary	Magistrates Court
ACT	Summary	Magistrates Court Act 1930 (ACT), s.19
Cwth	Summary	Crimes Act 1914 (Cwth), s.4H

Stakeholder views

3. 
   Although many submissions saw summary proceedings as appropriate for breaches of duties of care (the ACTU commented that trial before judge and jury was inappropriate and unnecessary for a variety of reasons²⁸⁸), there were some strongly expressed views in favour of there being indictable offences (e.g. the ACCI, South Australian Government for offences that attract imprisonment, and the Victorian Government²⁸⁹).
   

Discussion

4. 
   The deterrent value of the more serious offences would be strengthened by making them indictable offences, demonstrating that they are on a par with the most serious breaches of the general criminal law. This would also maintain public confidence in the administration of justice in this area. A view was also put to us that using a jury in proceedings would allow a community standard of ‘reasonable’ to be more readily applied in serious offences.
   
5. 
   On the other hand, others have suggested that breaches of duties of care would generally be better dealt with by a court or tribunal on which the judge or magistrate is experienced in OHS matters and the involvement of a jury may be either redundant or likely to impede the appropriate disposition of the prosecution. The necessary level of deterrence would be provided by the availability of substantial penalties, including imprisonment. It is also important for there to be speed in the handling of such matters and this is seen as more likely in summary proceedings. The Tasmanian Government expressed its concern that trials before juries may not be feasible in that state and, if it were possible, could also harm the development of OHS jurisprudence as written decisions would not be given.²⁹⁰
   
6. 
   On balance, however, we consider that treating serious breaches as indictable offences would be consistent with the goals of graduated enforcement, reserving the most significant prosecution option for the most serious breaches.