In our consultations, most stakeholders stressed that the system of liability under the model Act should focus on culpability and risk, not outcome. This view was expressed by the Chamber of Commerce and Industry WA (CCIWA), among others, which advised us that the level of penalty should depend on culpability of the offender.278
Discussion
Identifying the particular circumstances to which the highest penalties are to apply permits legislators to specify the aggravating factors that are considered to make certain breaches the most egregious and to justify more stringent penalties. Even so, this approach must be carefully applied. Where the highest penalties are reserved for physical consequences of a breach (e.g. a fatality), it reduces the significance of the culpability of the offender. A duty holder’s failure to provide and maintain a safe system of work, even where no harm has occurred, may result in extreme levels of risk and merit the strongest sanctions, particularly where the risk was known or clearly should have been. In short, it is consistent with the overall aims of OHS regulation to provide for the sanction to relate to the culpability of the offender, not to the seriousness of the consequences. We consider later how to differentiate between offences where there are aggravating factors.
It should also be noted that each Australian jurisdiction provides in laws of general application for sentencing principles that are used by courts dealing with criminal matters. These laws typically address aggravating and mitigating factors. The implications of such overlapping laws are discussed in Chapter 19.
