Margaret Diamond, General Counsel; Sophie Redmond, Executive Counsel; Greg Robertson, General Counsel; Harmers Workplace Lawyers
The Model Work Health and Safety Act (the Model Act) states as one of its key objects (s 3(1)(a)):
… protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.
This protection is achieved in a variety of ways. Duties are imposed by the Act on Persons conducting a business or undertaking (and on Officers and Workers and other persons) and the Act requires voluntary compliance.
However, the framers of the Model legislation were realistic enough to recognise that there would need to be a degree of compulsion for the legislation to be effective. Hence, the Model Act provides for various methods of securing and enforcing compliance, including the regulator and Inspectors in each jurisdiction which are given a broad range of powers, and measures such as Infringement notices and voluntary Enforceable undertakings.
Further to this though, for when such methods fail, the Model Act also provides for other significant forms of compliance and enforcement measures which are administered by the courts. One of these is a system of criminal offences and penalties (dealt with in this subtopic), and the other is a civil penalty regime (see Civil penalty provisions).
Criminal framework
Contraventions of the Act are generally made criminal offences. The Explanatory Memorandum to the Model Work Health and Safety Bill states (at item 137) that:
This generally reflects the community’s view that any person who has a work-related duty of care but does not observe it should be liable to a criminal sanction for placing another person’s health and safety at risk. Such an approach is also in line with international practice.
See: Criminal framework for WHS contraventions.
Categories of offences and penalties
The Model Act provides for what is in effect a graduated scale of penalties depending on the seriousness of the offence. The Explanatory Memorandum (at item 145) makes it clear that these penalties, and the possibility of imprisonment in the most serious cases, are a key part of achieving and maintaining a credible level of deterrence to complement other types of enforcement action, stating:
The maximum penalties set in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the most egregious examples of offence.
There are three categories of offences against health and safety duties, with associated penalties. These are, in summary, as follows:
Category
Relevant provision (Model Act)
Description
PenaltiesCategory 1s 31Category 1 offences are the most serious. These involve a breach of a health and safety duty where there is reckless conduct that exposes an individual to a risk of death or serious injury or serious illness without reasonable excuse.Individual who is not a PCBU — up to $300,000 or 5 years imprisonment or bothIndividual who is a PCBU — up to $600,000 or 5 years imprisonment or bothBody corporate — up to $3,000,000Category 2s 32Category 2 offences involve breach of a health and safety duty where the breach exposes an individual to a risk of death or serious injury or illness.Individual who is not a PCBU — up to $150,000Individual who is a PCBU — up to $300,000Body corporate — up to $1,500,000Category 3s 33Category 3 offences involve a breach of a health and safety duty without the requirement of a risk of death or serious injury or illness.Individual who is not a PCBU — up to $50,000Individual who is a PCBU — up to $100,000Body corporate — up to $500,000
See:
Category 1 offences: Reckless conduct;
Category 2 offences: Failure leading to exposure to significant risk; and
Category 3 offences: Failure to comply with health and safety duty.
Exceptions to WHS offences
The three categories of offences against health and safety duties contained in ss 31, 32 and 33 of the Model Work Health and Safety Act (Model Act) are subject to a few important exceptions.
See Exceptions to WHS offences.
Offences by artificial entities
Because artificial legal personalities cannot “act” on their own, but only through the actions of a natural person, the Model Act also makes provision for how conduct of individuals will be imputed to an artificial personality, with the Model Act dealing specifically with bodies corporate, the Crown and public authorities.
See Offences by bodies corporate and other artificial entities — general principles and WHS offences by artificial entities — the Crown and public authorities.