The model Act should provide for the following sentencing options in addition to fines and custodial sentences:
adverse publicity orders;
remedial orders;
corporate probation;
community service orders;
injunctions;
training orders; and
compensation orders.
Note: we support making provision for enforceable undertakings but they are dealt with in our second report to allow a full examination of the options, including providing for such an undertaking as an alternative to a prosecution and as a sentencing option.
Part 4
OTHER MATTERS RELEVANT TO DUTY OF CARE OFFENCES
Burden of proof
Appeals
Limits on prosecutions
Guidance on sentencing
Avoiding duplicity and Double Jeopardy
Related issues
Chapter 13: Burden of proof
Current arrangements
This is an area in which current Australian OHS laws differ. Of the nine principal OHS Acts, only the NSW and Qld Acts provide for a ‘reverse onus of proof’ in respect of offences relating to duties of care.327This means that in prosecutions for such offences, the prosecutor must prove non-compliance with the elements of the duty of care beyond reasonable doubt, but defences are open to the defendant. The standard of proof for the defendant is on the balance of probabilities. Under the NSW and Qld Acts, reasonably practicable (or its equivalent in Queensland) is not an express element of the duty of care.
In NSW, the defences are that it was not reasonably practicable to comply or that the offence occurred as a result of causes over which the defendant had no control.328 In Queensland, the defences are that the defendant applied a relevant regulation, Ministerial notice or code of practice that addressed how to prevent the contravention, or that defendant used another way to manage exposure to the risk concerned and ‘took reasonable precautions and exercised proper diligence to prevent the contravention’.329 If the prosecution leads any further evidence to rebut a defence, the onus for the prosecution remains beyond reasonable doubt in relation to that evidence.
Those provisions reflect (but are different from) the reverse onus of proof in relation to reasonable practicability under the UK Health and Safety at Work etc Act 1974.
Under the OHS Acts of the other States, Territories and the Commonwealth, the burden of proof (beyond reasonable doubt) is entirely upon the prosecution in matters relating to non-compliance with duties of care. This includes whether the defendant failed to do what was reasonably practicable (however described) to protect the health and safety of the persons to whom the duty was owed.
