In a report from the first such review since the OHS Act came into operation 20 years ago, the Sentencing Advisory Council recommends major reforms to the way OHS offences are sentenced in Victoria. The report recommendations aim to enhance the role of victims in the sentencing of OHS Act breaches, change sentencing practices, and improve payment rates for fines imposed on companies.
VTHC are pleased to note that the twelve recommendations of the report align closely with those put forward by VTHC in its submission to the review, and we thank the many contributors who made submissions in support of improving sentencing in offences against the OHS Act. Worker Safety is core union business and these recommendations for meaningful change go a long way to bridging the gap between current sentencing practices and community expectations.
Through an extensive program of research and consultation, the Council identified a need to change sentencing practices, and has recommended that work be done to create a world-first legislated sentencing guideline to drive meaningful changes in sentencing outcomes, so that sentences achieve more meaningful OHS-related outcomes, give greater effect to the sentencing purposes stronger of proportionate punishment and deterrence, and are brought in line with community expectations.
There is a clear need for higher fines in some cases, and even more importantly, there is a need to use a wider range of sentencing orders other than fines. In particular, health and safety undertakings (which can involve conditions requiring companies to do certain things) and adverse publicity orders (which require companies to publicise their offending) are both extremely underutilised at the moment. The Council also found that there are millions of dollars in unpaid fines for OHS offences each year, most commonly in cases involving companies that have been deregistered since the offending.
To achieve the necessary changes, the Council has recommended a package of 12 reforms, including:
- expanding the opportunities for people affected by OHS offences to participate in sentencing, including broadening the eligibility for who can submit an ‘impact statement’ telling the court about how an offence has affected them, and enabling people to participate in a victim-centred restorative justice conference, with important safeguards such as informed consent
- a fivefold increase in maximum penalties for companies and individuals who breach their health and safety duties
- new policies at WorkSafe Victoria that encourage prosecutors to advocate for increased use of health and safety undertakings and adverse publicity orders
- new mechanisms to improve accountability for penalties imposed, including making more company directors personally liable for fines in appropriate circumstances, and investigating the potential introduction of successor liability in Victoria, which would mean a phoenix company could be held accountable for fines imposed on the deregistered company that it replaced
- developing a world-first legislated sentencing guideline to include in the Occupational Health and Safety Act. That guideline would provide courts with guidance on how to calibrate penalties to the relative financial circumstances of offenders and would include ranges of indicative sentences based on key factors in the case, such as the fact that someone was killed or injured as a result of the offence.
Read the report here: Sentencing Occupational Health and Safety Offences in Victoria: Report and Recommendations | Sentencing Council
