Existing OHS law and practice in Australia, and in comparable countries, rely on a mixture of persuasion and punitive sanctions to secure both better OHS performance overall and compliance with statutory obligations.266 In each Australian jurisdiction, a policy of graduated enforcement is accepted as the preferred regulatory approach, although the effectiveness of its implementation has been questioned.267
Apart from establishing a framework in which information and advice may be supplied to encourage and facilitate voluntary compliance with duties of care, the relevant OHS laws provide that breaches are subject to fines and other sanctions. Various other mechanisms are provided in the laws to secure compliance before it becomes necessary to take proceedings. We will discuss them in our second report. We emphasise that all of the measures in the model Act (and any supporting instruments) must be seen as a continuum that is designed for a progression through various ways of ensuring safety and health at work, leading up to prosecution for non-compliance.
Providing for a breach of a duty of care to be a criminal offence is an essential element of modern OHS legislation, and is consistent with the graduated approach to securing compliance with the laws. Broadly put, it reflects the community’s view that any person who has a work-related duty of care but does not observe it should be liable to a sanction for placing another person’s health and safety at risk. Such an approach is also in line with international norms.268
As we discuss later, further consideration should, in the context of a model Act, be given to the deterrent effect of the laws and how well they sit in the spectrum of graduated enforcement. Our attention has been drawn to a risk that contraventions of OHS laws may be perceived as not being ‘real’ offences, even though there should be no doubt that they are precisely that.269
Making non-compliance with a duty of care a criminal offence not only reflects the seriousness with which such conduct is regarded, but also reinforces the provision’s deterrent effect. As the ALRC has commented, “If the aim of penalties is deterrence, then, given effective enforcement, criminal penalties are more likely to deter than civil ones, but they may be more difficult to obtain…”270.
The Maxwell Review observed that breaches of OHS legislation should be censured and should remain as criminal offences. Maxwell noted that the nature of OHS prosecutions differs from that of standard criminal prosecutions, including because:
the offence is committed whether or not harm was caused; and
proof of a breach of an OHS duty does not depend upon proof of a relevant state of knowledge or intent.271
The Commonwealth’s approach of providing for criminal and civil liability allows a wider range of possible responses to breaches, which might be seen as consistent with a graduated approach to enforcement. As well as allowing greater choice about proportionate responses, the availability of civil penalties may entail less cost, speedier proceedings (particularly as proof is to the civil standard) and fewer defended matters.
Nonetheless, that approach had only limited support from those who made submissions to us and, where supported, was seen as more suited to less serious matters, particularly breaches of obligations other than duties of care. We do not favour its use in relation to criminal offences for which relatively high penalties should be available. In our view, proof on the balance of probabilities is inappropriate in such matters. We note that the availability of enforceable undertakings may supply the greater flexibility of regulatory response that should be part of modern regulation.272 In our second report, we will discuss whether civil sanctions are suitable for other obligations under the model Act.
