$495,000 (criminal offence – death or serious bodily harm or risk of such a consequence and duty holder reckless or negligent)
$99,000 (criminal offence – death or serious bodily harm or risk of such a consequence and duty holder reckless or negligent)
TABLE 10: Custodial sentences
Jurisdiction
Maximum period of imprisonment under OHS Act for a breach of a duty of care where there is an aggravating factor
Legislative provision
NSW
5 years
NSW Act, s.32A
Vic
5 years
Vic Act, s.32
Qld
3 years
Qld Act, s.24
WA
2 years
WA Act, s.3A
SA
5 years
SA Act, s.59
Tas
-
-
NT
5 years
NT Act, s.82
ACT
7 years
ACT Act, s.34
Cwth
-
-
Stakeholder views
The governments support custodial sentences for serious breaches of duties of care. The Victorian Government draws attention to its approach of having custodial sentences for breaches where health and safety of a person at a workplace is wilfully or recklessly placed at risk. This should be seen as consistent with the view that imprisonment is a last resort sanction for serious offences, where there is repeated or wilful conduct and a fine is not a sufficient response.306
The Western Australian Government also support imprisonment as an option for serious breaches, but considered the maximum period of imprisonment should be two years.307
The Queensland Government similarly favour imprisonment as a response to the most serious offences.308 The South Australian Government also considers that imprisonment should be available for the most serious offences, such as reckless indifference to the health and safety of others.309
The AiG accepts that imprisonment may be appropriate in the most culpable circumstances.310 The ACCI considers that the most serious offences should be subject to the criminal law as codified in the various Crimes Acts.311 The ACTU and unions generally support the availability of terms of imprisonment for serious breaches.312
Discussion
In its 1995 Report, Work, Health and Safety, the IC observed that enforcement was needed where other incentives were insufficient to obtain compliance.313 The IC found that, at that time, deterrence had never been firmly pursued in the OHS field in Australia and that the low incidence of prosecutions and minimal fines meant that there was unlikely to be any real discouragement of non-compliance.314
Among other things, the IC recommended substantially higher penalties, the designation of specialist judges or magistrates to hear OHS prosecutions, sentencing guidelines, a wider range of corporate sanctions and a right to bring private actions (to supplement limited inspectorate resources).
Changing attitudes towards the regulation of occupational health and safety, reinforced by the various reviews of OHS laws and a growing body of regulatory scholarship, have led to increases in fines under the Acts, greater provision for custodial sentences and, as discussed later, other sentencing options. Nonetheless, as shown in the tables above, there remains considerable disparity in the maximum fines and periods of imprisonment that can be imposed under the various Australian OHS Acts.
In our view, the maximum penalties provided in some jurisdictions are too low to have a meaningful value as a deterrent or as a potential punishment for a breach. In this respect, we note the observation of the UK Sentencing Advisory Panel, that ‘... in principle it should not be cheaper to offend than to prevent the commission of an offence.’315
We consider that fines are a key part of achieving the deterrence required to give credibility to a process of graduated enforcement. We consider that higher maximum fines are necessary for the model Act and that they should be complemented by a range of other sentencing options. We discuss later whether guidance should be given as to when the higher end of the range of fines should be imposed.
Against this background, we have considered three options which would provide the model Act with a more effective and relevant regime of monetary penalties. The options would:
each be adjusted to fit into the three categories of offences that we recommend,
be complemented by the wider array of sentencing options that we propose (see later); and
be governed by applicable sentencing guidelines.
Options
There are three options:
Option one – the fines under the existing Australian OHS Acts would be brought up to the highest existing levels, with appropriate indexation adjustments to recognise that they will not come into effect until 2011;
Option two – the fines would be substantially increased particularly where there was serious harm to any person (fatality or serious injury) to whom a duty was owed or a high risk of such harm and the duty holder had been reckless or grossly negligent; and
Option three – this is a variation of the second option, reserving the highest penalties in each category of offence for repeat offenders.
