The model Act should provide for a system of appeals against a finding of guilt in a prosecution, ultimately to the High Court of Australia, commencing with an application for leave to appeal to the Supreme Court.
RECOMMENDATION 64
The model Act should not provide for appeals from acquittals.
Under all the State and Territory OHS Acts, although expressed in different ways, provision is made so that liability exists for the Crown, government departments and agencies, and employees of the Crown.350 However, it does not follow that the Crown is liable to be prosecuted in all cases.351
The Commonwealth has a different position. Under the Commonwealth OHS legislation, the Crown in right of the Commonwealth is bound by the Act, but neither the Commonwealth nor a Commonwealth authority is liable to be prosecuted for an offence or to pay a fine or penalty for an offence (government business enterprises are liable). Civil sanctions apply.352 This has been explained as stemming from a strong common law presumption that the Crown cannot be criminally liable.
