Chapter heading 1

TABLE 8: Fines where there is no specified aggravating factor

Jurisdiction	Maximum fine under OHS Act for a breach of a general  duty of care  without specified aggravating factors - corporations	Maximum fine under OHS Act for a breach of a general  duty of care without specified  aggravating factors – individuals
NSW	$550,000	$55,000
Vic^305	$1,020,780	$204,156
Qld	$225,000	$37,500
WA	$200,000	$100,000
SA	$600,000	$200,000
Tas	$150,000	$50,000
NT	$550,000	$110,000
ACT	$100,000	$10,000
Cwth	$242,000 (civil penalty)	$48,400 (civil penalty)

TABLE 9: Fines where there is an aggravating factor

Jurisdiction	Maximum fine under OHS Act for a breach of a general  duty of care with aggravating factors - corporations	Maximum fine under OHS Act for a breach of a general duty of care with aggravating factors - individuals
NSW	$1,650,000 (s.32A, reckless conduct causing death)	$165,000 (s.32A, reckless conduct causing death)
Vic	$1,020,780	$204,156
Qld	$750,000 (multiple deaths)	$150,000 (multiple deaths)
WA	$500,000 ($625,000 if a subsequent offence)	$250,000 ($312,500 if a subsequent offence)
SA	$600,000 (repeat offence)	$200,000 (repeat offence)
Tas	$150,000	$50,000
NT	$1,375,000 (intentional breach causing death)	$275,000 (intentional breach causing death)
ACT	$1,000,000	$200,000
Cwth	$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

2. 
   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
   
3. 
   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
   
4. 
   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
   
5. 
   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

6. 
   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
   
7. 
   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).
   
8. 
   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.
   
9. 
   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
   
10. 
    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.
    
11. 
    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

12. 
    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.