There was limited support for specific defences in the legislation.
The ACCI proposed defences relating to lack of ‘realistic and practical control’ over a workplace hazard or risk, reasonable reliance on the skill and expertise of a qualified person and to circumstances where the offence was substantially caused by an unlawful or unforeseeable act of a third party.377
The ACTU supported defences where officers of corporations were deemed to be liable for a breach of a duty by the corporation. Under this proposal, the defences would be the typical defences of not being in a position to influence the offending conduct, and a defence of due diligence by an officer who was in such a position.378
The South Australian Government discussed the possibility of a ‘deemed to comply’ approach, recognising the certainty that it may provide for a duty holder, but expressed reservations about problems of scope, interpretation and unintended omissions.
The Queensland Government supported the defence that is inherent in its approach to placing liability on a duty holder (see our description of this in Chapter 13).
Other regulators did not see the need for defences in circumstances where the prosecution bears the onus of proof in relation to alleged breaches of duties of care.379
Discussion
Given our conclusion about the burden of proof, which we deal with in Chapter 13, we do not need to consider whether there should be a defence in the model Act relating to the defendant having taken ‘reasonably practicable’ measures. It will be for the prosecution to demonstrate all elements of the breach beyond reasonable doubt.
Similarly, in light of our findings and recommendation about ‘control’ (i.e., that it is an integral element of ‘reasonably practicable’ and should not be an element in the duty of care), we do not see any need to provide that it is a defence to a prosecution for a duty of care offence where the act or omission concerned was a result of causes over which the defendant had no control.380
We deal in our second report with the question of defences for other offences under the model Act.
