Breaches of duties of care under Australian OHS legislation are criminal offences. The Commonwealth is the only jurisdiction in which both civil and criminal sanctions are available under its OHS Act in prosecutions for breaches of duties of care.260 This was explained on the basis that the common law presumption of immunity of the Crown from criminal prosecution meant that strong civil liability was needed in its place.261
As described in Part 1, all Australian OHS laws have been subject to independent reviews in recent years. Following this scrutiny of their effectiveness, most have been updated or replaced. The issues of offences, defences and sanctions were usually considered and material changes made. Consistently, the reviews supported breaches of duties being criminal offences.
The UK Act is the legislation that is most similar to Australia’s OHS laws (and from which ours derives). We note that breaches of duties are criminal offences under that Act and that the UK Parliament has recently confirmed that approach by updating the criminal penalties.262 Similarly, breaches of duties of care are criminal offences in certain developed countries, including New Zealand and Canada.
