The “hodgepodge” of recommendations made for one state’s sentences for health and safety contraventions contains one change that could expose offending employers to further breaches and convictions, according to a senior employment and safety lawyer.
Two weeks ago, the Victorian Sentencing Advisory Council released its final report from its review of the sentencing of offences under the Victorian Occupational Health and Safety Act 2004.
Its recommendations focus on three key areas of change, FCW Lawyers managing principal Andrew Douglas told OHS Alert.
These include addressing a lack of restorative justice that allows victims to be heard and healed in the sentencing process, through facilitating conferences between the offender, victims and any other affected persons to help determine how harm can be repaired and broadening the eligibility of people who can provide victim impact statements, he said.
The second area involves the better utilisation of alternative enforcement or sentencing options, including enforceable undertakings and health and safety undertakings.
This option is rarely utilised by offenders, and the Sentencing Advisory Council recommends it “should be forced upon you by a court”, Douglas said.
While a health and safety undertaking might sound innocuous in light of other options, he explained, it could become expensive and onerous because the offender is committing to not breaching any safety-based legislation.
This is significant because “in any organisation any day of the week”, safety laws are being breached, he stressed.
Douglas says closing this gap will require firms to question why they remunerate productivity so that it becomes the sole focus of all concerned.
“It is a cheaper disposition path but it means the likelihood – because you are being watched by the regulator – that you’ll break the law again is high,” Douglas said.
“Then you end up with two convictions rather than none at all.”
The third part involves increasing the maximum penalty for: a primary duty breach from just under $2 million to nearly $10 million for bodies corporate; and a reckless endangerment offence from five to 10 years’ jail for individuals.
“Insightfully, [the report recognises] that reckless endangerment is almost impossible to prove against an organisation and to limit that to individuals, which it should be,” Douglas said.
According to the lawyer, the review’s “hodgepodge” of recommendations misunderstand that “you either have restorative justice system or you have a punitive justice system”, and “the two don’t fit together”.
“It also misunderstands the paradigm of safety, which is when someone’s hurt in a workplace, everyone gets hurt, not just the injured worker,” he said.
“You won’t get growth by saying ‘If you do the restorative justice things then you get a lesser penalty, but if you don’t, we’re going to hit you with a really big stick’.
“What we do know about sentencing is that big sticks don’t stop bad behaviour… Executing people for murder and serious crimes does not change the incidences of those crimes one iota.”
What will improve safety is a restorative system with a better educational process, Douglas said.
Employers should also be adopting more progressive methods of safety and analysis focused around not getting “stuck in the paperwork”, he added.
“Identify your critical risks, and build competence and knowledge across an organisation, so that people can access and understand how to deal with critical risks as and when they arise,” he advised.
“At the moment there is a battle between the bureaucracy of safety and the need to operationally execute speedily, and operations wins every day of the week,” Douglas said.
Douglas also shared his insights on the State’s incoming psychological health regulations.
Originally published in the OHS Alert on Tuesday 11th March 2025.
Author:
Lu Sun
OHS Alert
www.ohsalert.com.au
