Chapter heading 1

OHS Regulation for a Changing World of Work, The Federation Press, 2004, pp.146-178.

268 Art.9 (2) of the ILO’s Occupational Safety and Health Convention, 1981 (C. No 155) requires an OSH enforcement system to provide adequate penalties for violations of the OSH laws and regulations.

269 ‘We are not concerned with real or mainstream criminal law’, Stein, op. cit., p.36, paragraph 7.27.

270 Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, ALRC 95, 2002.

271 Maxwell Review, p.354, paragraphs 1700 and 1701.

272 Enforceable undertakings are discussed in our second report.

273 See s.21(2) of the Vic Act.

274 For example, the WA Act imposes higher penalties where a breach of a duty involved gross negligence (defined in s.18A of that Act).

275 See s.59A of the SA Act.

276 See s.32A of the NSW Act, ‘Reckless conduct causing death at workplace by person with OHS duties’. The ACT provides for industrial manslaughter under the Crimes Act 1951.

277 See s.26 of the Qld Act.

278 Chamber of Commerce and Industry WA, Submission No.44, p.60.

279 Qualifications of the duties of care are discussed in our examination of them earlier in this report.

280 He Kaw Teh v R (1985) 157 CLR 523 at 590.

281 What constitutes an offence of strict liability is described in cl.6.1 of the Criminal Code as set out in the Schedule to the Criminal Code Act 1995 (Cwth). The duty of care offences have been variously described in decided cases as ‘absolute’ or ‘strict’. Even so, the duties are properly described as absolute (see Johnstone 2004 at pp.203-204).

282 See discussion in Report 7 of the ACT Legislative Assembly’s Standing Committee on Legal Affairs, Strict and Absolute Liability Offences, February 2008, particularly at p.18, and in the sources referred to in that report.

283 This may be provided for in the OHS Act concerned or elsewhere.

284 See the Sentencing Act 1991 (Vic), ss.109 and 112.

285 This is also the case under the, Crimes Act 1914 (Cwth), s.4J; Magistrates Court Act 1989 (Vic), s.53; Summary Procedure Act 1921 (SA), s.5; Crimes Act 1900 (ACT), s.375. Although indictable offences may be tried as summary offences in NSW – Crimes Act 1900 (NSW), s.475B – this does not apply to OHS offences.

286 Magistrates Act 1989 (Vic), ss.48, 53, 54 and Schedule 4. There is a limit on the penalty that may be imposed in such cases.

287 SA Act, s.59.

288 ACTU, Submission No.214.

289 ACCI, Submission No.136; South Australian Government, Submission No.138; Victorian Government, Submission No.139.

290 Tasmanian Government, Submission No. 92, pp.23, 24.

291 See s.18A of the WA Act.

292 See s.24 of the Qld Act.

293 See s.3A of the WA Act; s.4(5)of the SA Act.

294 The Maxwell Review, in recommending that the Vic Act should contain ‘appropriate offence-specific penalties’, noted that this was both a contemporary approach and avoided the impression that all offences were potentially liable to the same maximum penalty.

295 Part 2A – Industrial Manslaughter.

296 Centre for Corporate Accountability, Statistics on convictions in England and Wales (as at 3 September 2008) - see http://www.corporateaccountability.org/manslaughter/cases/convictions.htm. The convictions precede the commencement of the UK Corporate Manslaughter and Corporate Homicide Act 2007 in April 2008.

297 ibid

298 Maxwell, op. cit., pp.355, 356, paragraphs 1709, 1710.

299 SA Review, op. cit., Vol. 3, p.111.

300 R McCallum, P Hall, A Hatcher, A Searle, Advice in relation to workplace death, occupational health and safety legislation & other matters - Report to WorkCover Authority of NSW, 2004.

301 ibid, pp.10-11

302 AiG, Submission No.182, pp.77, 78.

303 ACTU, Submission No.214, p.77.

304 Victorian Government, Submission No.139, p.103.

305 Victoria does not specifically include aggravating factors in the relevant provision, but they are given weight by a sentencing court. See ANCON Travel Towers Pty Ltd, unreported, Victorian County Court, 16 December 1998, cited in Creighton and Rozen, Occupational Health and Safety Law in Victoria, The Federation Press, NSW, 2007, p.205.

306 Victorian Government, Submission No.139, p.100.

307 Western Australian Government, Submission No.112, p.48.

308 Queensland Government, Submission No.32. p.38.

309 South Australian Government, Submission No.138, p.61 (this view was supported by the tripartite SafeWork SA Advisory Committee).

310 AIG, Submission No.182, p.77.

311 ACCI, submission 136, p.82.

312 ACTU, submission 214, p.77.

313 IC, Work, Health and Safety, AGPS, Canberra, 1995.

314 ibid, p.104

315 Consultation paper on sentencing for corporate manslaughter, 2007, p.17. Available at: http://www.sentencing-guidelines.gov.uk/docs/SAP%20(07)K3%20-%20Corporate%20manslaughter%202007-10-31-v%203.10.AR.pdf

316 NOHSC, The costs of work-related injury and illness for Australian employers, workers and the community, Australian Government, Canberra, 2004. Available at:

http://www.ascc.gov.au/NR/rdonlyres/C8FC4DE9-8786-4DD6-BAFC-063F5EFC8C64/0/CostsOfWRID.pdf

317 MCA, Submission No.201, p.48, CME of WA, Submission No.125, p.46.

318 The Crimes Act 1900 (NSW), s. 35, provides for 10 years imprisonment for this offence and the Crimes Act 1958 (Vic), s. 17 provides for 15 years imprisonment for a similar offence.

319 Crimes (Sentencing) Act 2005 (ACT); Crimes Act 1904 (Cwth); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act (NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1997 (WA).

320 OHSA 1985 (Vic), s.53.

321 Maxwell Review, p.374, paragraph 1814.

322 This was a matter to which Maxwell drew attention: ibid, paragraph 1815.

323 Queensland Government, Submission No.32, p.37.

324 A director would be liable for health and safety fatalities, serious injuries and permanent disease.

325 N. Gunningham and R. Johnstone, Regulating Workplace safety: Systems and Sanctions, Oxford University Press 1999, pp.262, 263.

326 Law Reform Commission, New South Wales,  Sentencing: Corporate Offenders, Report 102 (2003), Ch. 7

327 OHS Act 2000 (NSW), s.28, WHS Act 1995 (Qld), s.37.

328 See s.28 of the NSW Act.

329 See s.37 of the Qld Act.

330 SA, Vic and WA.

331 Maxwell Review, paragraphs 1715, 1716

332 Stein Inquiry, paragraphs 7.9 to 7.36.

333 NSW WorkCover Review, p.36.

334 Queensland has also provided for other means of demonstrating compliance with a duty apart from taking reasonable precautions’ and exercising due diligence’ in addressing risk.

335 IC, Work Health and Safety, Report No. 47, 1995, p.55. The ACTU expressed a similar view – Submission No.63, p.63.

336 McCallum et al, Submission No.42, p.7; ACTU Submission No.63, p.63. See also B Creighton, Reasonable Practicability: a discussion paper prepared for the Victorian WorkCover Authority, 2008, p.18.

337 Stein Inquiry, paragraph 7.29.

338 Maxwell Review, paragraph 1715. The ACCI expressed a similar view – Submission No.136, p.69.

339 Law Council of Australia, Submission No.163, paragraph 8.16.

340 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 per Dawson, Toohey and Gaudron JJ at paragraph 17.

341 The latter point appeared to be decisive in the findings of the Stein report, op.cit., and Stein recommended that the only penalty of imprisonment in the NSW OHS Act (for re-offenders) should be omitted.

342 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 per Dawson, Toohey and Gaudron JJ at paragraph 18

343 See also the Summary Procedure Act 1921 (SA) in relation to the classification of offences and jurisdiction.

344 Industrial Relations Act 1996 (NSW), s.197A.

345 The Constitution, s.73(ii).

346 ACCI, Submission No.136

347 South Australian Government, Submission No.138, p.64.

348 Law Council of Australia, Submission No.163, p.35; Hodgkinson et al, Submission No.199, p.2

349 The Report on the Review of the Occupational Health and Safety Act 2000 recommended the repeal of the provision – p.62, section 8.8.

350 See s.118 of the NSW Act, s.6 of the Vic Act, s.4 of the QLD Act, s.4 of the WA Act, s.5(3) of the SA Act, s.4 of the Tas Act, s.6 of the NT Act, s.11 of the ACT Act and s.11 of the Cwth Act.

351 For example, the ACT Government take the view that prosecution is not appropriate for the ACT public sector.

352 Cwth Act, s.11.

353 Australian Law Reform Commission, Report 92, The Judicial Power of the Commonwealth: a Review of the Judiciary Act 1903 and Related Legislation, paragraph 22.44.

354 Ibid, para 22.47.

355 Crimes (Sentencing Procedure) Act 1999 (NSW) ss.26–30A; Crimes (Sentencing Procedure) Regulation 2005 (NSW) rr.8–11; Sentencing Act 1991 (Vic) pt.6 div.1A; Sentencing Act 1995 (WA) pt.3 div.4; Criminal Law (Sentencing) Act 1988 (SA) s.7A; Magistrates Court Rules 1992 (SA) r.41.06; Supreme Court Criminal Rules 1992 (SA) r.19.01–19.08; Sentencing Act 1997 (Tas) s.81A; Justice Rules 2003 (Tas) pt.9A; Crimes (Sentencing) Act 2005 (ACT) pt.4.3; Sentencing Act 1995 (NT) ss.106A–106B. Queensland does not make such provision but a prosecutor may inform the court about harm suffered by a victim - Criminal Offence Victims Act 1995 (Qld) s.14.

356 Crimes (Sentencing) Act 2005 (ACT), Part 4.3; Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act (NT);Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1977 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA).

357 E Erez, L. Roeger, and M. O’Connell, Victim Impact Statements in South Australia, Australian Institute of Criminology, 1996

358 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, art.6(b).

359 R. Johnstone, L. Bluff and M. Quinlan, Submission No.55,

360 Walsh v Tattersall (1996) 188 CLR 77 at 104-112 (Kirby J)

361 See s.31 of the NSW Act, See s.164 of the Qld Act, s.164.

362 R. Johnstone, L. Bluff and M. Quinlan, Submission No.55, pp.14 and 42.

363 See, for example, the decision of the Full Court of the Supreme Court of South Australia in Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197.

364 Maxwell Review, p.382, paragraph 1854.

365 Art.14(7) of the International Covenant on Civil and Political Rights states that, ‘No one shall be liable to be tried and punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.

366 See s.55A.

367 COAG has agreed that jurisdictions will implement the recommendations of the Double Jeopardy Law Reform COAG Working Group on double jeopardy law reform, prosecution appeals against acquittals, and prosecution appeals against sentence, noting that the scope of reforms will vary amongst jurisdictions reflecting differences in the particular structure of each jurisdiction's criminal law. Victoria and the Australian Capital Territory reserved their positions in relation to the recommendations – see COAG Communiqué, 13 April 2007.

368 ACCI, Submission No. 136, p. 85.

369 This approach is taken in Vic, SA, Tas and the NT.

370 There are stand alone offence provisions in New South Wales, Western Australia and Queensland that are collocated with the duty provisions. For example, see s.12 of the NSW Act,; s.24 of the Qld Act; and s.19A of the WA Act.

371 The offence provisions are remote from the duties under the Commonwealth Act (a Schedule provides for civil and criminal proceedings).  A note is included in the duties provisions of the Act to direct attention to the Schedule.

372 See s.28(a) of the NSW Act; See s.37(2) of the Qld Act.

373 See s.28(b) of the NSW Act.

374 See s.37 of the Qld Act.

375 ibid, s.37(1)(b)(ii) – A duty holder may follow another appropriate way to manage exposure to the risk, apart from that stated in the code, provided the duty holder took reasonable precautions and exercised due diligence to prevent the contravention.

376 Ibid, s.37(1)(c).

377 ACCI, Submission No.136, pp.74, 75.

378 ACTU, Submission No.214, p.70.

379 Victorian Government, Submission No.139, p.94.

380 See s.28 of the NSW Act.