The Sentencing Advisory Council (SAC) has handed down its much anticipated report, ‘Sentencing Occupational Health and Safety Offences in Victoria’. The report makes a series of recommendations to government that could have a significant impact on prosecutors and duty holders alike. The full report can be accessed here.

This extensive report addresses three main ideas:

1. Increasing the participation of people affected by workplace risks or incidents in the sentencing process.
2. Changing current sentencing practises to better align with community expectations, including increasing fines in some cases and greater use of alternative sentencing orders.
3. Addressing the significant number of fines imposed that go unpaid.

Greater role for affected workers and their families in sentencing

SAC has recommended that the threshold for admissibility of victim impact statements be broadened in occupational health and safety matters to capture people who have been clearly affected by a workplace risk or incident where the current legislation and case law does not permit a court to receive their statements.

It also recommends the introduction of restorative justice conferences to move alongside sentencing proceedings and enable duty holders and people who have been harmed to talk about the offending and its effects.

Increasing penalties

For many duty holders, the most significant aspects of the SAC report will be its proposals relating to current sentencing practises.

The report concludes that sentencing for occupational health and safety offences falls below community expectations. This is in two key respects.

First, fines for occupational health and safety offences are too low, both in that they are misaligned with community expectation and also because they are often not capable of achieving the purposes of sentencing. SAC has particular emphasis here on larger companies. It recommends:

• a significant increase in the maximum penalty of the most commonly prosecuted occupational health and safety offences, from 9,000 penalty units for a body corporate to 50,000. In today’s terms, that means moving the maximum penalty increasing from about $1.8 million to almost $10 million;
•  greater guidance be provided to courts emphasising higher penalties for larger companies;
• a legislated sentencing guideline is introduced, to promote consistency in sentencing of occupational health and safety offences and, presumably, increase applicable sentencing ranges; and
• the reckless endangerment offence (s 32 of the OH&S Act) is reformed, so that it applies only to individuals, but doubles the maximum term of imprisonment available and increase the maximum fine five-fold.

Secondly, SAC promotes greater use of other or ancillary orders: It recommends that:

• a new type of order called a health and safety order be introduced. These appear to be a similar idea to the community correction order available for natural persons being sentenced in Victoria. These orders, which could run for up to five years, could include special conditions imposing requirements on duty holders to implement safety measures, and, presumably, be of good behaviour; and
• WorkSafe Victoria should develop a policy relating to applications for adverse publicity orders, which are available under the OH&S Act but are not presently commonly used. From SAC’s consultation, community stakeholders wanted these orders used in 70 percent of cases they assessed. Adverse publicity orders are more common in environment protection prosecutions and are now likely to be a greater feature of occupational health and safety prosecutions if WorkSafe Victoria heeds SAC’s advice.

Addressing unpaid fines

The report reveals that only 67 percent of fines are fully paid. Twenty-seven percent of fines are not paid at all, amounting to almost $2.5 million in unpaid fines each year.

SAC has significant proposals to address unpaid fines:

1. Increasing director accountability: SAC recommends greater use by Fines Victoria of ‘declared director’ notices, which render a director jointly and severally liable for the fine imposed on the company. No declared director notice had been issued prior to 2024. In 2024, four were issued. They may be far more common moving forward.
2. Creating successor liability for ‘phoenix’ companies: It is an increasingly common feature of occupational health and safety prosecutions that liable companies are deregistered during or shortly after prosecutions. A new version of the same company emerges shortly thereafter as a way of avoiding both the reputational and financial hit from the prosecution. SAC has recommended that government ask the Victorian Law Reform Commission to investigate introducing successor liability like that which exists in the United States, where a successor company is made liable for a deregistered company’s sanctions.

Conclusion

There is a lot in this report for occupational health and safety practitioners to consider. It, of course, remains to be seen how government will respond to the recommendations. But it is anticipated that some of the recommendations which do not depend upon legislative change – such as greater use of adverse publicity orders or declared director notices – could become a more common feature of the landscape in the near future.