In our consultation, we were advised by many stakeholders that they wished the model Act to be structured so that it would be simpler to find and refer to the key provisions, including the duties of care and the consequences of non-compliance.
Discussion
Although this is not a matter with substantive legal implications, we consider that it should be addressed for harmonisation reasons (currently, no uniform legislative approach exists) and because the offences relating to duties of care need to be readily accessible in the model Act to duty holders. There is also a question of how best to assist duty holders to understand the legal consequences for them of non-compliance.
The options for locating such offences in the model Act reflect the approaches that are taken in existing Australian OHS laws. Each has attracted some support.
One approach is to set out the penalty for a breach of a duty in the same provision as the duty.369 This indicates that a breach is an offence and reinforces the significance of the duty. The consequence of non-compliance is also clearer to the duty holder
Another approach is to make separate provision for offences. This allows the duties to be set out in provisions that focus solely on what the duty holder must do to protect occupational health and safety.
Where this approach is taken, the offences may be in provisions that are in the same part of the legislation as the duties370 or remote from them.371 In either case, providing for the offences separately from the duties puts in one place all the information about the consequences of non-compliance with a duty. This allows interested persons to see the relativities between the penalties and hence the relative seriousness of the various offences. It may also facilitate subsequent amendments. In addition, it would also permit collocation with other provisions about alternative sentencing options.
The difference in the approaches is probably partly explained by drafting practices in the jurisdiction concerned. In some instances, an effort appears to have been made to reinforce the impact of the duties of care by making it clear in each duty provision that non-compliance is an offence, punishable by a significant criminal penalty. This is helped where there is information about the actual dollar amount of fines.
In any case, we consider that the model Act would be more effective by making it easier for interested persons to find the provisions relating to duties and the penalties (or other consequences) for non-compliance.
