This issue concerns whether a defendant should bear any onus of proof in a prosecution for non-compliance with a duty of care. As previously discussed (See Chapter 10), absolute liability applies to such offences under Australian OHS laws, but is qualified by a standard of ‘reasonable practicability’, however expressed.334
For the purposes of the model Act, the question arises of upon whom the onus of proving reasonable practicability should rest. This matter is not clear-cut. The underlying issues are at some risk of being clouded by the vehement support and opposition for such a reverse onus that have been expressed by some interested parties.
An often quoted justification for the reverse onus was stated by the IC:335
It is more efficient for the holder of the duty of care rather than the prosecution to have to establish what was reasonably practicable. A duty holder could be expected to know more about the costs and benefits of the various alternatives open to him or her at any time, than anyone else.
Our attention was also drawn to the history of this type of evidentiary requirement under UK safety laws, leading up to its inclusion in the UK Act.336 Stein commented that it was not unusual for “regulatory or remedial offences in a variety of ‘social welfare’ areas (including occupational health and safety) to have a reversal of the onus of proof in some defences”.337
The opponents of such a reverse onus generally start from the position that it is a fundamental principle of the criminal law that the prosecution should bear the onus of proving all of the elements of the offence.338 The Law Council of Australia has observed that in respect of criminal sanctions, a reverse onus of proof will rarely be appropriate.339 These principles are consistent with the views expressed by the governments that oppose such a reverse onus in the model Act.
We note that the High Court observed in Chugg (a matter relating to the then Victorian OHS Act 1985):340
It may reasonably be supposed that an employer will have superior knowledge of matters peculiar to his workplace, including the cost and suitability of the various suggested means of removing a hazard or risk. However, it may also be supposed that an inspector, upon whom … the Act confers various powers "for the purpose of the execution of (the) Act (and) the regulations", will have superior, or at least wider, knowledge than an employer on some other matters which, in a good number of cases, will bear on the question of practicability. Thus, it may be supposed that an inspector would have wider knowledge as to the severity of, the state of knowledge about, and the availability of ways to remove or mitigate, hazards or risks which occur in industry generally, or occur in some general class of industrial undertaking or in relation to some general class of industrial machines, operations or pursuits.
We have not been helped in analysing this matter by the apparent lack of substantive evidence about the effect of a reverse onus on OHS outcomes. We were unable to identify objectively whether the legislative approach taken in Queensland and NSW to the reverse onus results in a materially different culture of compliance or OHS performance generally than in the jurisdictions where it does not exist.
There are two broad options where there is a prosecution for non-compliance with a duty of care. The first is to place the onus of proof (beyond reasonable doubt) entirely on the prosecution. The second is to require the defendant to demonstrate (on the balance of probabilities) how the defendant did all that was reasonably practicable to ensure the health and safety of those to whom the duty was owed.
The case for the first option – no reverse onus – turns on the generally accepted principle that in a criminal prosecution, the onus of proof beyond reasonable doubt normally rests on the prosecution. The instances in which a reverse onus is provided for do not usually involve heavy penalties or imprisonment.341 We note that we are recommending increased penalties, including imprisonment (See Chapter 12).
The case for the second option turns on the view that a defendant will be in the best position to know how the defendant has met the duty at issue and that it is not unfair for the defendant to be required to prove on the balance of probabilities that the defendant did so to a reasonably practicable standard. It has also been suggested that it will make securing a conviction unnecessarily burdensome if the prosecution has to show this beyond a reasonable doubt. While the first proposition has some force, the second does give not enough weight to the investigatory powers of the regulator. In fact, it may be that, if there were to be a reverse onus of proof in relation to reasonable practicability, fairness would require some scaling back of those powers.
Another consideration relates to the practical effect of placing a burden of proof on the defendant. As the High Court observed in Chugg:342
One consideration tells against overmuch significance being given to the relative knowledge of an employer and an informant. The questions of safety and practicability, in many cases, raise issues of common sense rather than special knowledge … In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide "so far as is practicable" a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge.
In other words, in practical terms, the onus may shift to the defendant once the prosecution has made out its case.
Although the practical difference between, the two options will often not be great, the matter is not insubstantial.
We have carefully considered what was put to us, the reasoning in previous reviews and current practice. As discussed earlier, we are recommending (see Chapter 5) that the qualification of ‘reasonably practicable’ be part of the relevant duties of care. We have concluded that it should be for the prosecution to prove failure to meet this standard and that there should not be a provision placing any onus of proof on the defendant in relation to it. In reaching this conclusion, we also took into account the fact that we are also recommending substantial increases in the size and range of penalties (see Chapter 12), and, that, in our second report, we will address how the regulators should have strong and wide-ranging investigatory powers under the model Act.
