Against this background, we have considered a range of options.
One option would involve not making any specific provision in relation to work-related deaths. The model Act would not single out particular consequences (including work-related deaths) of non-compliance with duties of care. The focus would instead be on the culpability of the duty holder in failing to meet the duty concerned. Such an approach is consistent with the thrust of modern OHS regulation. If sentencing guidelines (see Chapter 16) were considered appropriate and could be designed for a harmonised OHS regulatory context, the weight to be given to such a consequence of a failure to satisfy a duty of care might be included.
In considering this option, we are aware that other laws relating to such deaths would be available (e.g. the general criminal laws). Even so, we note that they have been little tried and not successfully used in Australia and that there may be some difficulties in securing convictions where complex corporate arrangements exist.
A second approach, which is taken under some Australian OHS laws, is to provide for an increase in the available sanctions where there is a work-related death. This usually occurs where aggravating factors (negligence or recklessness) were present.
A third option is to create a specific offence that relates to work-related deaths arising from non-compliance with a duty of care. This approach has been taken under the NSW Act and is expressly contingent on recklessness.
Only the ACT has enacted an industrial manslaughter law in its criminal law, with provision for imprisonment of up to 20 years. If such a provision were to be contemplated for the national regime, we do not consider that it should be included in the model Act.
Our approach in dealing with non-compliance with duties of care has been to ensure that the statutory responses are consistent with the graduated enforcement of the duties. We are concerned that the natural abhorrence felt towards work-related deaths should not lead to an inappropriate response. The seriousness of offences and sanctions should relate to the culpability of the offender and not solely to the outcome of the non-compliance. Otherwise, egregious, systemic failures to eliminate or control hazards and risks might not be adequately addressed.
Even so, where non-compliance with duties of care involves a high degree of negligence or recklessness and results or could result in a work-related death or other grievous harm to a person to whom a duty is owed, we consider that it is appropriately placed at the highest end of the scale of offences.
We propose that the provisions relating to penalties for non-compliance with duties of care be expressed so that this relativity is recognised. We deal later with the penalties that should be provided in the model Act, including for non-compliance which has these characteristics.
