| RECOMMENDATION 57
The model Act should provide for the penalties for category 1, 2 and 3 offences relating to duties of care, as set out in Tables 11, 12 and 13.
RECOMMENDATION 58
The model Act should separately specify the penalties for natural persons and corporations, with the maximum fine for non-compliance by a corporation being five times the maximum fine for a natural person.
Note: Other sentencing options are considered later in this Chapter.
Custodial sentences for duty of care offences
Current arrangements
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We have set out in the above table the maximum sentences of imprisonment under the Australian OHS Acts for breaches of duties of care. The periods vary from six months to seven years.
Stakeholder views
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The ACCI observed that offences which may lead to imprisonment should be indictable offences and heard before a judge and jury. The maximum penalty should not be more than two years imprisonment. The AiG accepted that imprisonment may be justified for the most culpable behaviour (e.g. reckless endangerment). The ACTU supported the imposition of a custodial sentence for serious breaches of general duties in the model Act. The Tasmanian government emphasised that imprisonment should be available as part of a range of sentencing options to achieve the required deterrence in the model Act. The Western Australian, South Australian and Victorian Government submissions also expressly supported custodial sentences for serious offences. On the other hand, the Minerals Council of Australia (MCA) and the Chamber of Minerals and Energy (CME) of WA strongly opposed the inclusion of custodial sentences in the model Act.317
Discussion
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For the same reasons as we propose significant monetary penalties, we believe that there should be significant periods of imprisonment available for the worst (category 1) breaches. Under our proposals, these would be indictable offences (see Chapter 11). The present position, which ranges from no custodial sentences under the OHS legislation, to sentences of up to seven years imprisonment, is inappropriate and potentially unjust. As we have commented elsewhere, the legal consequences of a breach should not depend on the jurisdiction in which the offence occurred.
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We consider that custodial sentences are appropriate for breaches of duties of care where there is a high level of culpability. We are proposing that they be available for category 1 offences. We consider that a maximum period of five years imprisonment is just. In this respect, we note that criminal law statutes provide for periods of imprisonment of 10 years or more for reckless conduct causing grievous bodily harm.318
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