SafetyNet readers will be familiar with our calls for the Victorian Government to respond to the twelve recommendations of the report issued by the Sentencing Advisory Council following their investigation and review of sentencing practices for OHS offences. Now, with the upcoming review of the Sentencing Act 1991, unions and other workplace safety advocates will have another opportunity to push for stronger penalties that reflect the seriousness of OHS breaches.
The review, which will begin with the release of an issues paper in early 2027, is intended to modernise Victoria's sentencing laws and improve consistency, transparency and public confidence in the justice system. While it is a broad review of the state's sentencing framework, it also offers another chance to revisit recommendations from the Sentencing Advisory Council's 2024 review of OHS sentencing, released in February 2025 —recommendations that have yet to receive a formal response from the Victorian Government.
The Sentencing Council's report was the first comprehensive examination of OHS sentencing since the Occupational Health and Safety Act 2004 came into operation twenty years prior. Following consultation, the Council concluded that existing sentencing practices often fail to reflect the seriousness of workplace safety offences or community expectations when workers are seriously injured or killed.
Among its twelve recommendations were proposals to significantly increase maximum penalties, broaden opportunities for victims and families to participate in sentencing, improve the recovery of fines imposed on companies, and encourage much greater use of sentencing options beyond traditional financial penalties. It also proposed the development of what would be a world-first legislated OHS sentencing guideline to help courts impose penalties that better reflect the circumstances of each offence while also strengthening deterrence.
Despite broad support from unions and workplace safety advocates, the Victorian Government has not yet responded to the report or the recommendations.
Those recommendations will now be considered as part of the wider review of the Sentencing Act. A potential benefit of this is that instead of examining OHS sentencing in isolation, the broader review allows consideration of how workplace safety offences fit within Victoria's overall sentencing framework and whether additional reforms are required to ensure penalties achieve their intended purpose. It should also be noted that the Advisory Council’s report focused on ‘breach of duty’ offences which make up two-thirds of all OHS offences sentenced in Victoria, As a result, many of the recommendations aimed at reforming the sentencing of offences committed by companies involving breaches of duties, and less towards the sentencing of other offences in the OHS Act. A more comprehensive review would be able to consider a wider range of OHS offences.
Encouragingly, and despite the lack of response from government, at least one of the 2024 report’s recommendations appears to have been noted by the regulator. Last month WorkSafe Victoria released its new Health and Safety Undertakings Policy, formally setting out how it will use health and safety undertakings as a sentencing option under section 137 of the OHS Act.
Health and safety undertakings have always existed in Victorian legislation but have rarely been used. The new policy provides prosecutors with clear guidance on when these court-imposed orders should be sought and clarifies the distinction between health and safety undertakings and the far more familiar enforceable undertakings, which are negotiated directly with WorkSafe.
Unlike enforceable undertakings, which generally avoid prosecution, health and safety undertakings are imposed by a court after an offender has been convicted or found guilty. They allow courts to require offenders to undertake practical measures that directly improve workplace safety, including appointing safety managers, implementing new safety systems, commissioning independent audits, funding industry education campaigns, developing research partnerships or installing improved safety equipment. These undertakings can also be combined with fines, providing both punitive and rehabilitative outcomes.
It should also be recognised that since the recommendations were released, we have seen several prosecutions where WorkSafe sought adverse publicity orders requiring the offender to publish the details of their offending. As the Advisory Council noted “In the context of offending by companies, these orders have the potential to achieve significant deterrent and punitive aims (as a result of the reputational damage inherent in such orders), as well as promote broader awareness about health and safety issues in a particular industry.”
The policy demonstrates that sentencing reform does not have to focus solely on increasing fines. While stronger financial penalties remain important, particularly for serious offences involving fatalities or catastrophic injuries, sentencing should also require offenders to make meaningful contributions to improving workplace safety and preventing similar incidents from occurring again. Nevertheless, unions and safety advocates do not want to see the fulfilling of compliance measures that should have already been in place serving as a significant part of an offending company’s undertaking in place of a financial penalty.
The upcoming Sentencing Act review also provides an opportunity to revisit broader recommendations that remain unresolved. These include increasing maximum penalties, strengthening adverse publicity orders, improving the collection of unpaid fines from companies, expanding victim participation in sentencing, and considering legislative guidance to help courts impose more consistent and proportionate OHS penalties.
For Victorian workers the review is more than a technical exercise in general sentencing law. It is an opportunity to ensure the justice system properly reflects the devastating human consequences of workplace deaths and serious injuries while reminding employers and regulators that breaches of health and safety duties are criminal offences deserving of meaningful penalties.
Read more: Review of the Sentencing Act 1991 | Sentencing Advisory Council