Page 2829 - Week 09 - Thursday, 27 September 2007
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through establishing a regulatory regime that encourages duty holders to develop a safety culture or run the risk of being found in breach of the legislation. Fostering of this safety culture would be more difficult to accomplish without the use of the strict liability elements in the offences.
It is not appropriate to prove that a defendant intentionally or recklessly failed to comply with the safety duty. This would involve establishing a knowledge or, at the very least, some degree of awareness of the existence of the safety duty, thereby negating the first element of absolute liability. In a work safety context, duty holders must be expected to be aware of the obligations in this legislation.
Under the offences it is still necessary to prove that the defendant was either reckless or negligent about whether his or her conduct would expose or cause serious harm to anyone. In the case of recklessness, the prosecution would be required to prove that the defendant knew or was aware of a substantial risk that their act or omission would expose or cause serious harm to anyone. In the case of negligence it is still necessary to prove that the defendant’s act or omission merits criminal punishment because it involves such a great falling short of the standard of care that a reasonable person would exercise in the circumstances and, as such, a high risk that a person would be exposed to or suffer serious harm.
The test for criminal negligence is high. The acts currently contain a cascade of offences, with the strict liability version of the offence having the lowest penalty. Where an offence involves acts or omissions that are done negligently, recklessly or deliberately, the penalty is higher to reflect the greater degree of culpability. I do not agree with the committee’s suggestion that the proposed offences should be redrafted to exclude the imprisonment term and a third level of offence created. A third offence that attracts fault for each and every element would send the wrong message to duty holders in this context. This is because, in effect, a duty holder who demonstrates an awareness of the first two elements of the offence and yet fails to comply, for whatever reason, would be subject to a greater level of penalty and imprisonment than a duty holder who shows no level of awareness of their health and safety obligations.
In other words, under the committee’s proposal, a duty holder who demonstrates some degree of diligence yet commits an offence could be liable for a term of imprisonment, whereas a duty holder who is criminally negligent and demonstrates no level at all of awareness as to their duty or shows no degree of diligence or responsibility whatsoever would only be subject to a monetary penalty. For example, it would be easier to prove that a defendant who has a safety management system and sound OHS policy in place knows that he or she is required to comply with a safety duty and either knew or was reckless about not complying than it would be for a defendant who has no obvious safety system in place and who has made no attempt whatsoever to develop a safety culture in the workplace.
The committee notes that tiered offences, with a version attracting strict liability with no imprisonment and a version imposing fault and an imprisonment term do not exist in the territory legislation. This is true. However, I am advised that a tiered offence approach along these terms is not appropriate for an OHS regulatory regime. I am about to run out of time so I will return to these matters when we discuss Mr Mulcahy’s amendment.
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