Penalties for serious occupational health and safety offences could rise significantly under a new OH&S model presented to federal and state workplace ministers yesterday.
The “National review into model occupational health and safety laws” first report, if made law, would raise the maximum penalties for the most serious OH&S offences to $3 million for corporations and $600,000 for individuals, along with up to five years imprisonment.
The report, which recommends a national OH&S system, would mean big changes for several states. Under current laws in NSW and Queensland, the burden of proof in an OH&S case lies with the defendant, but the report recommends the burden of proof shift to the prosecutor.
But Deacons OH&S lawyer Michael Tooma says the fines may be an over-reaction.
“My personal view is there are no proportion between greater fines and more compliance. That correlation does not exist; the equation is more complicated than that, and the drivers to compliance by business has as much to do with moral imperatives as it does with legal obligations.”
Other recommendations include changes to liability provisions in NSW, Queensland, Tasmania and Western Australia by making OHS officers liable if they fail to take reasonable care to ensure company compliance. Other proposals include having serious offences heard by juries and a full right of appeal, all the way to the High Court.
“I think when you’re talking about five years jail and $3 million fines, it makes a great deal of sense to have a full right of appeal,” Tooma says.
“However, trials are going to be longer. Matters are going to be less predictable because you’re before a jury, and you are unlikely to get the buildup of case law that you now have – it will be harder to discern what the law actually means.”
But despite some good submissions, Tooma says the report is “a lost opportunity”, and it merely gathers the best legislation from some states and applies them to others.
“When we talk to our clients they tell us they prefer the review had taken a blank-canvas approach… if they had taken that, they might have been tempted to rethink legislation altogether. There are a lot of things that could have been done differently.”
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