Unfortunately, there appears to be limited information available that demonstrates the long term effects on OHS of the application in Australia of the alternative sentencing options. Many of the views expressed to us, and the material that we considered, appear to be principles-based or drawn from individual cases. Even so, there is understandably strong support for this option.
The possible weaknesses of particular sentencing options may be reduced or eliminated by the judicious combining of several orders. For example, concern that a fine may not deter further breaches or result in meaningful action by an offender to improve OHS practices and performance would be addressed by orders for remedial action. Adverse publicity orders may have a greater deterrent effect than a fine for a corporation that is concerned about its reputation. In addition, a combination of orders may not only be better targeted, but also permit a more proportionate response.
We conclude that the overall objectives of OHS regulation are best served by providing a wide range of sentencing options when there are convictions for breaches of duties of care. Gunningham and Johnstone have observed, in relation to corporate sanctions, a combination of measures will yield the best results in terms of achieving the overall goal of reducing the incidence of contraventions and hence the incidence of work-related injury and disease.325
Accordingly, we have considered whether the existing sentencing options are appropriate and sufficient, as well as where there are any others that should be included in the model Act. Subject to our recommendations about fines and custodial sentences, we consider that the model Act should equip the Courts with a wider array of sentencing options.
We have concluded that injunctions provide a better calibrated option for a sentencing court than an order for incapacitation (e.g. winding-up). We have also concluded that, in this context, restrictions on tendering for government business are better dealt with by the executive than the judiciary. A government policy means that the restriction may be more widely applied than in relation to a single offender under a court’s sentence.
We did not consider that we had sufficient information or analysis to reach a final conclusion about equity fines (which require the issuing of shares to the regulator or another official entity rather than the payment of money as a fine). An equity fine does not by itself produce a change in behaviour or a commitment to improved OHS. We note that the NSW Law Reform Commission considered that they should not be supported in Australia.326
