To emphasise the seriousness of the obligations and to strengthen their deterrent value, breaches of duties of care should only be criminal offences, with the prosecution bearing the criminal standard of proof for all the elements of the offence.
Note: We discuss and make a recommendation about the onus of proof in chapter 13 and in recommendation 62.
How offences relate to culpability and risk
Current arrangements
The duty to protect health and safety is, as we discuss earlier, set at a high level. Non-compliance attracts a fine in all cases, a custodial sentence in some cases and may lead to the use of other sentencing options (see Chapter 12). Guidance on what constitutes a breach may be included in the relevant provisions. For example, the Vic Act includes specific types of conduct that will constitute a breach.273 Some Acts include provisions that specify aggravating factors that may lead to higher penalties. These may be where there was a higher degree of culpability, e.g. ‘gross negligence’274 or knowledge of the risk of serious harm to another person and reckless indifference to the risk.275 In other cases, there are specific offences that relate to conduct that causes a work-related fatality.276 One state provides its highest penalties where there were multiple fatalities, with a series of descending (but substantial penalties) depending on the seriousness of the consequences of the breach.277
