Headline goes here - Clyde & Co · Confusion between negligence and recklessness? 12 Significant...

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Contents

Introduction 1

Industrial Manslaughter: State of the Nation 3

What should organisations be doing to respond to the industrial manslaughter developments? 9

Problems with industrial manslaughter provisions 10

Interfering with the risk based framework of the legislation 11

Confusion between negligence and recklessness? 12

Significant jurisdictional differences 14

Will industrial manslaughter provisions actually result in higher penalties and strengthen deterrence? 15

Just because an offence is on the books, does not mean it will be used 17

What is the problem industrial manslaughter reform is trying to solve? 18

The real problem: Issues in enforcement, penalties and sentencing 19

Recommendations for enforcement and sentencing 23

UK sentencing guidelines in focus: An alternative for more consistency in sentencing 25

Annexure A 28

Annexure B 50

For many years, the appetite for industrial manslaughter offences on the statute books has waxed and waned. But the events in Queensland with multiple fatalities at Eagle Farm and Dreamworld in 2016 gave the push additional impetus, with the Queensland Government announcing a Best Practice Review of Workplace Health and Safety Queensland that would include recommendations for industrial manslaughter provisions. Those provisions commenced in Queensland as of October 2017. Up until that point, only ACT had such a provision on the books. Now it seems other jurisdictions are looking to follow suit.

Unions have taken advantage of this particular moment in history. The ACTU Congress met in Brisbane in mid-July 2018, where the Congress endorsed a proposal titled ‘Kill a worker, Go to Jail – Industrial Manslaughter’ further calling on state and federal governments to amend WHS laws to include “specific provisions relating to gross negligence causing death (industrial manslaughter)” after hearing from CFMEU WA maritime division leader Chris Cain who told delegates that fines in this context ought to be $20 million and 20 years imprisonment.1

At the Federal level, there is also renewed interest in the matter. In March 2018, the Senate referred an inquiry to the Education and Employment Reference Committee into the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia. That inquiry is currently in its public hearing phase and was originally due to report back by 20 September 2018. On 16 August 2018, the Senate agreed to an extension of time for reporting until 4 October 2018.

But is legislative reform that takes the form of industrial manslaughter offences the answer to the problem we are trying to solve? If the point is that the community wishes to see more serious ramifications for the most egregious types of conduct in failing to look after the health and safety during the performance of work, simply introducing industrial manslaughter provisions will not have that result. Indeed, this renewed push for industrial manslaughter offences may represent a step backwards for health and safety outcomes. It may be that these developments cause us to avoid shining a light on areas where real law reform is required if we are to align how the health and safety legal framework practically operates with community expectations.

Introduction

1 Workplace Express, “Unions back 20 years’ jail for industrial deaths”, July 19 2018 cited at https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&nav=11&selkey=56974&utm_source=daily+email&utm_medium=email&utm_campaign=subscriber+email&utm_content=read+more&utm_term=Unions%20back%2020%20years%27%20jail%20for%20industrial%20deaths

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In this discussion paper, we explore:

– the state of play around the country in terms of the current status of the laws on industrial manslaughter, planned reform efforts and issues arising in specific jurisdictions and recommendations for companies in light of these reforms

– the background to the call for industrial manslaughter reform for health and safety laws

– why we say that industrial manslaughter provisions may not be the answer, and

– future directions for a more productive way ahead to solving the true issues at the heart of this particular call for law reform.

As it stands, the ACT and Queensland have current provisions for industrial manslaughter with Victorian and Western Australian Governments in recent months also announcing commitments to the implementation of such provisions. The review of WorkSafe NT being conducted by Tim Lyons which is due to report back by the end of the year has also been asked to explore this issue.

We set out in the diagram at a glance, and in more detail in the table below, the state of play of industrial manslaughter provisions around the country.

Industrial ManslaughterState of the Nation

At a glance: Current status of industrial manslaughter laws around the country

WACurrent Status: NoGovt. has announced it intends to create a criminal IM offence, with 20 years imprisonment for individuals found guilty of acting recklessly

NTCurrent Status: NoLyons Review will address effectiveness of current offences and penalties under WHS legislation and whether IM offences should be introduced

SACurrent Status: NoLabor lost the SA March 2018 election. IM following Qld's lead promised by Labor SA not likely to occur under this Govt

QLDCurrent Status: Yes Where: See s34C and 34D of the Work Health and Safety Act 2011 (Qld) When: Since 23 October 2017Who: PCBUs and senior of�cers negligently causing deathPenalties: $10 million �ne for corporations and 20 years imprisonment for individuals

NSWCurrent Status: NoLabor opposition committed to creating IM criminal offence if elected in March 2019 state election

ACTCurrent Status: Yes Where: See s49C, 49D and 49E of the Crimes Act 1900 (ACT)When: Since 1 March 2004Who: Employers and of�cers for recklessly or negligently causing the death of a worker by their conductPenalties: $1.5 million �ne for corporations (and up to $5 million with court ordered publicity and projects) and $300,000 for individuals and 20 years imprisonment or both

VICCurrent Status: NoGovt. committed to creating criminal IM offence if re-elected in the November 2018 state election

TASCurrent Status: NoLabor opposition intends to consult with unions and other stakeholders on IM provisions, next State election not due until 2022

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0

Graph 1Total �nancial penalties for breach of primary duty to workers *Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

Highest

Average

Lowest

NSW QLD SA

$200,000$60,000$20,000

$390,000$97,500$39,000

$1,000,000$90,000$12,500

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In depth: Current status of industrial manslaughter laws around the country

State/ Territory Status of industrial manslaughter laws

Australian Capital Territory The first industrial manslaughter legislation was passed in the ACT Legislative Assembly on 27 November 2003, with the Crimes (Industrial Manslaughter) Amendment Act 2002 (ACT) taking effect as of 1 March 2004. Industrial manslaughter provisions are set out in the Crimes Act 1990 (ACT) in Part 2A.

Under s49C, an employer commits an offence if a worker dies in the course of employment by, or providing services to, or in relation to, the employer, or is injured in the course of employment by, or providing services to, or in relation to, the employer and later dies, and the employer’s conduct causes the death of the worker.

An employer can only be prosecuted under this provision if the employer has:

– been reckless about causing serious harm to the worker (or any other worker) by the conduct; or

– been negligent about causing the death of the worker (or any other worker) by the conduct.

There is also a provision dealing with industrial manslaughter committed by a senior officer (section 49D). “Senior officer” of an employer is defined as, in relation to an employer that is a Government entity, a Minister, a person occupying a chief executive officer position in relation to the Government or Government entity, a person occupying an executive position in relation to the Government or Government entity who makes, or takes part in making, decisions affecting all, or a substantial part, of the functions of the Government or Government entity. In relation to an employer that is another corporation, a senior officer is an officer of the corporation as under section 9 of the Corporations Act. Finally, in relation to an employer that is another entity, a senior officer is any of the following:

i) a person occupying an executive position in relation to an entity who makes, or takes part in making, decisions affecting all, or a substantial part of the functions of the entity; and/or

ii) a person who would be an officer of the entity if the entity were a corporation.

The current penalties for s49C and s49D offences are up to 2,000 penalty units (currently $300,000 for individuals and $1.5 million for corporations), 20 years imprisonment, or both.

In addition to the monetary penalties available under s49C, the Court may order a corporation to take certain actions under section 49E(2) of the Crimes Act 1900 (ACT). Those court directed actions can include any action to publicise details regarding the offence, the incident and any penalties imposed as well as orders to “do stated things or establish or carry out a stated project for the public benefit even if the project is unrelated to the offence”. Under section 49E(4), the total cost to the corporation of compliance with an order or orders under section 49E(2) in relation to a single offence must not be more than $5,000,000 (including any fine imposed for the offence under s49C).


Queensland The Work Health and Safety and Other Legislation Amendment Act 2017 (WHS Amendment Act) introduced industrial manslaughter provisions into Part 2A of the Work Health and Safety Act 2011 (Qld) for both senior officers and PCBUs. The WHS Amendment Act creates two criminal offences of industrial manslaughter under sections 34C and 34D.

An ‘employer’ and a ‘senior officer’ commit an offence where:

– a worker dies in the course of carrying out work (or is injured and later dies);

– the PCBU or senior officer’s conduct causes the death of the worker;

– the PCBU or senior officer was negligent about causing the death of the worker

by the conduct.

A “senior officer” is defined as an executive officer of the corporation (if the person is a corporation) or, otherwise, the holder of an executive position in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions. This is different from the section 9 Corporations Act 2001 (Cth) definition of an officer for the purposes of officer due diligence obligations in section 27 of the WHS Act and may capture a broader group of individuals than those captured by the due diligence obligation.

An offence is considered a crime and the time limitation periods associated with other offences under the WHS Act do not apply to the industrial manslaughter offence. While a WHS Prosecutor was also established by the WHS Amendment Act, transfer of the prosecutorial role to the WHS Prosecutor will not affect the requirement for indictable offences (which includes both Category 1 and industrial manslaughter offences) to be referred to the DPP for decision and action.

A PCBU found guilty may be liable for a fine of up to $10 million and a senior officer may be liable to a term of up to 20 years imprisonment. These offences commenced on 23 October 2017.

Those provisions have also been incorporated within Part 2B of the Electrical Safety Act 2002 (Qld) and Part 2A of the Safety in Recreational Water Activities Act 2011 (Qld).


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Victoria The Victorian Government announced on 28 May 2018 a commitment to creating a new criminal offence of industrial manslaughter if re-elected in the November 2018 state election, with 20-years’ imprisonment for individuals or a fine of up to approximately $16 million for corporations. This would represent a significant increase in maximum penalties under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) that are currently set for the reckless endangerment offence under section 32 of the OHS Act (five years imprisonment or a fine of $3,171,400 million for corporations and $285,426 for individuals).

The announcement indicated the intent for the provision to involve a “negligence” test rather than recklessness, seemingly taking a lead from the Queensland approach.2

The new offence is also to apply to an employer’s negligent conduct that causes the death of a non-working member of the public. That is, there is clear intent from the public announcements for the provisions to capture public safety contexts.

WorkSafe Victoria will be responsible for prosecuting employers for workplace manslaughter. This is a fresh attempt to introduce such provisions, following the previous Crimes (Workplace Deaths and Serious Injuries) Bill 2001 (Vic) which was ultimately defeated in the Legislative Council in June 2002.

Victoria’s 2004 ‘Maxwell Review’3 had earlier rejected the introduction of a separate offence, stating that manslaughter prosecutions should remain within the ambit of general criminal laws. Instead, section 32 of the OHS Act (reckless endangerment) was introduced to implement Mr Maxwell QC’s recommendation for a potential custodial offence in the context of high culpability.

The introduction of industrial manslaughter provisions are said to be a response to the increasing annual fatalities in Victoria. Upon announcement, Victoria’s Premier Daniel Andrews stated that “Up to 30 people are killed at work in Victoria every year – this is 30 deaths too many”. 4

Victoria’s Premier Daniel Andrews said:

“The penalty must be a strong enough deterrent to make employers take workplace safety seriously, and not rely on deep pockets to avoid accountability while cutting corners on safety.”5

2 See Premier’s announcement which states: “Employers whose negligence leads to the death of an employee will face up to 20 years in jail under tough new laws to be introduced by a re-elected Andrews Labor Government.” Cited here: https://www.premier.vic.gov.au/workplace-manslaughter-laws-to-protect-victorians/.

3 C Maxwell, Occupational Health and Safety Act Review, March 2004, Government of Victoria.

4 See Premier’s Statement, ‘Workplace Manslaughter Laws to Protect Victorians’, 26 May 2018 cited at https://www.premier.vic.gov.au/workplace-manslaughter-laws-to-protect-victorians/.

5 Ibid.



Western Australia The Western Australian Government has also announced that it intends to follow Queensland’s lead on industrial manslaughter offences and amend its draft WHS laws to include union-led prosecutions and 20-year gaol terms for recklessness.

New South Wales Presently, there is no industrial manslaughter offence in NSW.

In July 2018, the NSW Labor opposition indicated that it intends to introduce “a new law to properly address the issue of workplace death where it occurs as a result of breaches of work safety obligations” if it wins the next state election in March 2019. NSW Shadow Industrial Relations Minister Adam Searle indicated that NSW Labor would “will consult with unions, employers and the community about the best model and the level of penalties, including length of jail terms, bearing in mind that manslaughter [in the Crimes Act] has a maximum penalty of 25 years’ jail.” Mr Searle seemed to prefer consistency with general manslaughter provisions on gaol time rather than proposals such as Victoria’s 20 years imprisonment. In making that announcement, Mr Searle said that NSW Labor would carefully draft the laws to ensure “individual workers were not made scapegoats for corporate failures.”6 It remains to be seen if NSW Labor is swayed by the ACTU Congress proposal of $20 million fines and 20 years imprisonment for such offences.

South Australia Presently, there is no industrial manslaughter offence in South Australia. As at February 2018 the Labor party promised to follow Queensland’s lead on industrial manslaughter but subsequently lost the March 2018 state election.

6 See Anna Patty, Labor vows to jail bosses over workplace deaths in NSW, Sydney Morning Herald, 2 July 2018 cited at: https://www.smh.com.au/business/workplace/labor-vows-to-jail-bosses-over-workplace-deaths-in-nsw-20180702-p4zoyr.html.

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7 See Best Practice Review of Workplace Health and Safety in the Northern Territory, Discussion Paper, July 2018 cited at https://justice.nt.gov.au/__data/assets/pdf_file/0005/541814/Best-Practise-Review-of-Workplace-Health-and-Safety-in-the-Northern-Terr....pdf.

8 the Best Practice Review of Work Health and Safety in Queensland Final Report, 3 July 2017.

9 See consultation page of Attorney-General and Justice for the Best practice review of workplace health and safety in the NT cited at https://justice.nt.gov.au/attorney-general-and-justice/law/open-law-reform-consultation.


Northern Territory Presently, there is no industrial manslaughter offence in the Northern Territory. However, former ACTU assistant secretary Tim Lyons has been tasked with determining whether the NT WHS Act should be amended to include an offence of “gross negligence causing death” as part of the Best Practice Review of Workplace Health and Safety in the Northern Territory.7 The Review is being conducted by Tim Lyons, who conducted review into the Queensland WHS Act8 which informed the most recent legislative amendments to the WHS Act (QLD).

Among the Terms of Reference is to:

“consider specific issues such as whether an offence of ‘gross negligence causing death’ should be introduced and whether current penalty levels under the current work health and safety laws act as a sufficient deterrent to non-compliance.”9

Submissions for the WorkSafe NT review close on 31 August 2018 and the Review is due to report back to the Attorney-General and Minister for Justice by December 2018.

Tasmania Presently, there is no industrial manslaughter offence in Tasmania. However, earlier this year the Labor party announced it was committed to pursuing the introduction of industrial manslaughter laws. Despite subsequently losing the election, in April 2018, Shadow Minister for Workplace Relations Sarah Lovell announced that Labor will undertake a detailed consultation with industry and unions looking toward the introduction of industrial manslaughter laws. It seems that Tasmania is likely not to see the introduction of industrial manslaughter laws in the next few years but this may be back on the agenda if there is a change of government in that jurisdiction.

The maximum penalty exposure for companies in the context of a fatality will significantly increase from $3 million to upwards of $10 million in jurisdictions with industrial manslaughter offences. The ramifications for individuals in the context of workplace fatalities involve potential imprisonment increases from five years imprisonment to 20 years. And these imprisonment terms will apply in the context of offences that are potentially easier for prosecutors to make out (see discussion on negligence vs recklessness below).

Training

To date the organisational responses to personal liability under health and safety laws has been primarily to provide training for officers at the Board and senior leadership level in relation to officer due diligence. Any training provided to senior leaders needs to provide updates to leaders on these developments.

As the dual trends of increasing worker prosecutions10 and the introduction of industrial manslaughter offences gather apace around the country, organisations should revisit whether they are providing sufficient leadership training particularly for middle managers and site managers who may find themselves caught by these new industrial manslaughter provisions in the context of a workplace fatality.

Fatal incident response protocols

Given the significant legal ramifications in the context of workplace fatalities, we take the view that organisations need to proactively review their incident response and investigation policies and protocols to determine whether they are sufficient for fatal incident response. It may be that a more sophisticated incident response is required with separate legal representation for the corporate entities and individuals involved at multiple levels as there may be a conflict between the various interests of individuals and organisations given the microscope is now on both the conduct of individuals and organisations. It may be worthwhile proactively considering establishing a panel of different law firms to be immediately available to represent different interests in the event of a fatal incident. Organisations should also review the extent of coverage in their insurance policy arrangements to ensure that lower level workers’ legal representation costs would be covered in the context of fatal incidents.

Industrial manslaughter provisions may not be good for health and safety at all as the natural consequence of these reforms will be for everyone to “lawyer up” in the context of fatal incidents and not share information with other parties, limiting the potential for lessons to be shared and learnt from those unfortunate events.

What should organisations be doing to respond to the industrial manslaughter developments?

10 A trend we reported in our 2017 WHS Year in Review publication.

9

There are a number of reasons why simply introducing industrial manslaughter provisions are an ineffective solution for the problem it is trying to resolve. These include:

1. They interfere with the objectives of, and risk-based preventative framework established by, health and safety laws.

2. They further entrench the myth that health and safety laws are somehow ‘quasi’ criminal in nature and not ‘real crime’ which further undermines the objectives of the health and safety laws.11

3. Introduced on a jurisdiction by jurisdiction basis with different tests, defences and penalties they pose a threat to the general proposition at law that the law should apply to all people equally.

4. The potential for less consistent outcomes because there will be multiple potential offences at play in the context of fatal incidents that occur during the course of work.

5. Just because an offence is on the statute books, does not mean that it will be used for enforcement action or that penalties imposed by Courts will be consistent with community

Problems with industrial manslaughter provisions

11 For discussions surrounding the various characterisations of WHS offences see Neil Gunningham and Richard Johnstone, Regulating Workplace Safety: Systems and Sanctions (Oxford University Press 1999), chapter 1, 6 – 11, chapters 6 & 7 and chapter 8, 323 – 329, Richard Johnstone, ‘Work health and safety and the criminal law in Australia’ Policy and Practice in Health and Safety (2013) 11.2, 25 – 44.

Australia’s health and safety laws adopt a risk-based principles approach to statutory obligations for the health and safety of workers and others. The approach can be seen in the risk management principles that inform the duties12 as well as in the test for reasonable practicability. That proactive risk based approach flows through to the design of the offences. This means that organisations and their leaders can easily understand what is required: they must ensure that they proactively and effectively identify and manage the risks in the work they conduct.

By way of example, the three categories of offence under the model WHS Laws jurisdictions are as follows:

Interfering with the risk based framework of the legislation

12 See for example section 4 of the OHS Act in Victoria and section 17 in model WHS Laws jurisdictions.

Category Breach Corporation Officer Worker

Category 1 Offence Engaging in conduct, without reasonable excuse, that exposes an individual to whom a duty is owed, to a risk of death or serious injury or illness and the duty holder was reckless as to that risk.

$3,000,000 $600,000 and/or 5 years imprisonment

$300,000 and/or 5 years imprisonment

Category 2 Offence Engaging in conduct, without reasonable excuse, that exposes an individual to whom a duty is owed, to a risk of death or serious injury or illness

$1,500,000 $300,000 $150,000

Category 3 Offence Fails to comply with the duty $500,000 $100,000 $50,000

The tiered offences regime increases maximum financial penalties where there is evidence that a contravention is committed in the context of a person being exposed to the risk of death or serious injury or illness where there is also an element of recklessness (category one offences). This approach matches the preventative legislative framework established by the WHS Laws.

That risk based approach is also reflected in the most serious type of offence under the Victorian OHS Act (section 32 – duty not to recklessly endanger persons at workplaces).

That risk based approach is undermined by the introduction of industrial manslaughter provisions that are based purely on consequences (that is, because a fatality occurs).

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In the case of both Queensland and potentially Victoria, we have a potentially perverse position where there are higher penalties for lower standards of proof.

In Queensland to prove industrial manslaughter, a prosecutor needs to establish that:

i) a worker died in the course of carrying out work for the accused (or later died from injuries suffered in the course of carrying out work for the accused);

ii) the accused’s conduct caused the death; and

iii) the accused was negligent about causing the death of the worker (emphasis added).

In Queensland, the intent for the industrial manslaughter amendments is that: “the existing standard of proof in Queensland for criminal negligence will be applied to both offences”.13

In other jurisdictions, it is not entirely clear whether the relevant standard of negligence that will apply to the proposed industrial manslaughter offences is civil negligence or criminal negligence. To establish civil negligence, a duty holder must fall short of the standard of care that a reasonable person would be expected to exercise in the circumstances. Criminal negligence is a higher standard that requires proof of conduct which falls so far short of the relevant standard that it merits criminal punishment.

Irrespective of whether the standard is civil or criminal negligence, both types of negligence represent a lower standard than that required to establish a defendant’s recklessness. The concept of recklessness requires actual foresight of the probability or likelihood of the consequences of the contemplated act or omission and willingness to run the risk of the consequences becoming reality.14 That is, for recklessness, the prosecutor must be able to establish that the defendant had knowledge that their act or omission would have or could have placed a person at risk of serious

Confusion between negligence and recklessness?

13 See Work Health and Safety and Other Legislation Amendment Bill 2017, Explanatory Notes.

14 See Penble v The Queen (1971) 124 CLR 107 per McTiernan and Menzies JJ; La Fontaine v The Queen (1976) 136 CLR 62; R v Crabbe (1985) 156 CLR 464; R v Sergi [1974] VR 1; Nydam v The Queen [1977] VR 430; R v Windsor [1982] VR 89.

15 See Orbit Drilling Pty Ltd v R [2012] VSCA 82, [24].

16 R v Nuri [1990] RV 641, 643.

injury and continued on with that conduct regardless of that risk. Recklessness requires a prosecutor to prove “ foresight on the part of the offender that the conduct engaged in would probably have the consequence that another person at the workplace was placed, or could be placed, in danger of serious injury”15 and that the offender displayed “indifference as to whether or not those consequences occur.”16

The industrial manslaughter provisions based on a negligence test with their higher penalties, will, perversely, be easier to prove than category one offences with their recklessness test and lower penalties.

Further, the offences in Queensland, do not account for circumstances of accident, involuntariness, reasonable excuse or acts independent of the will of a defendant, and do not afford other defences which would otherwise be available under the Criminal Code Act 1899 (Qld) for other criminal offences involving homicide.17 The absence of such defences, combined with the low standard of proof of negligence and the high maximum penalties (20 years imprisonment for an individual or $10 million for a corporation) has the potential to result in unjust unintended consequences.

In the case of Victoria, if it follows Queensland’s lead and utilises negligence in its proposed industrial manslaughter offences, it risks repeating the perverse position of having higher penalties for a lower standard of offence within its laws. Under section 32 of the OHS Act, a person commits an offence if they recklessly engage in conduct that places or may place another person who is at a workplace in danger of serious injury. That offence comes with potential penalties of a fine of up to $3,171,400 million for corporations and $285,426 and/or five years imprisonment for individuals.

The Review in the Northern Territory appears to be asking Tim Lyons to explore a gross negligence test, whereas Western Australia’s announcements on industrial manslaughter have used the term ‘recklessness’.

17 As outlined by the Queensland Law Society’s Submission re the Work Health and Safety and Other Legislation Amendment Bill 2017 21 September, 2.

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As can be seen by the above discussion, we are now seeing different tests (recklessness vs negligence), different levels of officer (senior officer with a lower bar vs officer under Corporations Law) and different penalties ($1.5 million, $10 million, $16 million) creeping in on a jurisdiction by jurisdiction basis which is problematic for consistency of laws and the general rule that the law should apply to all people equally. Irrespective of jurisdiction and whether these requirements live within the general criminal laws or health and safety laws, consistent standards are required.

There are also inconsistencies created within individual jurisdictions in the case of the ACT. The maximum penalty in terms of a fine for a corporation’s breach of the industrial manslaughter offence under the ACT Crimes Act by a corporation ($1.5 million18), is half the maximum penalty for a corporation’s breach of a category 1 offence of the Work Health and Safety Act 2011 (ACT) ($3 million), the latter reflecting the Model WHS Laws. In most circumstances either offence would be available to a prosecutor where an employer’s conduct caused the death of a work and the employer had been reckless as to the harm that would be caused to an employee.

Significant jurisdictional differences

What we have learnt from the first six or so years of the model WHS Laws is that just because there are categories of offences with higher penalties attached, does not mean that higher penalties will be imposed.

In model WHS Laws jurisdictions where maximum penalties are based on three tiers of offences, the majority of prosecutions have involved category two prosecutions. To date, across the country there has only been one successful category one prosecution with judgment handed down on 26 February 2018 in the case of Stephen James Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 52. The penalty handed down to the organisation charged in that first completed category one prosecution was $900,000 from a maximum of $3 million. While it is too early to establish a trend, we are seeing higher penalties imposed in serious category two offences than in category one offences.

The high water marks for category two prosecutions (where the maximum penalty for a corporation is $1.5 million) have included $1 million and $1.1 million penalties. See for example, the $1 million penalty imposed in Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92 (5 May 2017) and the $1.1 million penalty handed down against Kenoss Contractors in relation to Brett McKie v Munir Al-Hasani & Kenoss Contractors Pty Ltd (In Liq) [2015] ACTIC 1.19

In many ways, we have not seen the full extent of enforcement under the current available offences within the WHS Laws given that we only have one successful completed case of a category one offence since the introduction of the model WHS Laws.

Will industrial manslaughter provisions actually result in higher penalties and strengthen deterrence?

18 That $1.5m maximum penalty figure in terms of the fine, can however be supplemented with publicity orders or project orders so that the total sum of money to be paid by an employer (including a fine) can be anything up to $5 million. See section 49E(4) of the Crimes Act 1900 (ACT) in that regard.

15

19 See Michael Inman, Kenoss Contractors fined AUD 1.1 million for workplace death (19 August 2015), The Canberra Times.

New South Wales: only successful category one prosecution to dateOrr v Cudal Lime Products Pty Ltd [2018] NSWDC 52

26 February 2018

KEY LESSON: Ensure that i) personnel are qualified for the work they provide; and ii) notices issued by regulators are taken seriously and effectively close out issues raised. Failing to have systems and processes in place for these matters may be considered reckless.

Cudal Lime Products Pty Ltd (Cudal) operated an open-cut limestone mine in NSW. The incident followed several electrical faults at the mine which occurred between 2007 and 2013. It was held that electrical work had been conducted by an unqualified Cudal employee on the site.

Mr Perceval, a worker, resided 200 metres from the mine with his de facto partner. On 27 August 2014, Mr Perceval left the cottage to commence work at the mine. He had turned on an electric motor which powered a crusher to pulverise rock. On his return, Mr Perceval found his partner deceased in the shower. She had suffered electrocution.

The court heard that Cudal was issued notices by the regulator in 2007, 2009 and 2013 with respect to maintenance issues involving electricity. Furthermore, in an attempt to save costs, Cudal instructed Mr Shannon (an employee) to complete electrical work on the switchboard which he was not qualified to do.

The court held that the risks were foreseeable and deficiencies in the maintenance of cabling were ‘obvious’. The instruction to Mr Shannon was found to be reckless and it was reasonably practicable for Cudal to implement steps to eliminate or minimise the risks to workers, which they failed to do.

Cudal pleaded guilty to the Category 1 offence in respect of breaching section 19(2) (the primary duty of care to other persons) of the Work Health and Safety Act 2011 (NSW) (WHS Act (NSW)). Cudal was fined $900,000 from a maximum of $3 million. This is the first successful Category 1 prosecution under the WHS Act.

Mr Shannon also pleaded guilty and was convicted of a Category 2 offence in respect of breaching sections 28 (the worker duty) of the WHS Act, and was fined $48,000 from a maximum of $150,000.

Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27

As outlined above, the ACT has had industrial manslaughter provisions on its statute books since 2004 and yet there have been no prosecutions under those provisions.

That is a particularly interesting point to note given that earlier this year, 9 defendants (both a mix of corporations and individuals) were charged under the ACT’s WHS Laws and general criminal laws for conduct arising in the context of a workplace fatality involving a crane during the construction of the University of Canberra hospital. None of those 9 prosecutions instituted by the prosecutor have included an election by the prosecutor to charge under the ACT’s industrial manslaughter provisions. They have however, included one offence of general manslaughter under section 15 of the Crimes Act 1900.

Just because an offence is on the books, does not mean it will be used

Australian Capital Territory case updateMultiple parties charged in relation to fatality at a construction site

Proceedings commenced 18 April 2018

On 4 August 2016 at the University of Canberra Hospital construction site, a crane which was being used to move an 11-tonne generator overturned and killed a worker at the site. Proceedings were commenced on 18 April 2018.

Multiplex Constructions Pty Ltd (Multiplex), the principal contractor at the site, has been charged with Category 1 and Category 2 offences under the Work Health and Safety Act 2011 (ACT) (the WHS Act (ACT)). A separate subcontractor, RAR Cranes Pty Ltd (RAR Cranes), has also been charged with Category 1 and Category 2 offences.

Additionally, proceedings have been brought against the following individuals: the CEO of Multiplex (for a Category 2 offence), 3 of its employees (the site manager for a Category 2 offence, the senior site supervisor for Category 1 and Category 2 offences and the site safety officer for Category 1 and Category 2 offences). In respect of RAR Cranes, the Managing Director (for a Category 2 offence) and a crane dogman (for a Category 1 offence) have also been charged.

The crane driver operating the crane at the time of the incident has been charged with general manslaughter under the Crimes Act 1900 (ACT).

Multiplex’s CEO and RAR Cranes’ Managing Director both face Category 2 prosecutions for breaching the officers’ duty with fines of up to $300,000 under the WHS Act (ACT). WorkSafe ACT is alleging significant and systemic failures in relation to safety following the WorkSafe ACT and police investigations into the incident.

17

When one analyses the calls for industrial manslaughter provisions, the arguments presented in favour of such offences are largely related to the idea that penalties are not significant enough in the context of workplace fatalities.

That argument can be seen in the motion introduced (and agreed) at the ACTU’s Congress 2018 just last week. The motion was written in the following terms:

Title: Kill a worker, Go to Jail – Industrial Manslaughter

Text: Too many workers are killed at work. No industry is exempt. For too long big business has escaped responsibility for deaths that occur at work. To simply fine employers where workers have lost their lives is totally unacceptable. Congress calls on state and federal governments to amend Workplace Health and Safety laws to include specific provisions relating to gross negligence causing death (industrial manslaughter) to ensure that an unscrupulous employer or entity found to have been negligent or otherwise culpable for causing serious injury or death are prosecuted to the full extent of the law. This amendment is the criminal deterrent needed to save more workers lives and protect the public. Kill a worker: go to jail.20

What is the problem industrial manslaughter reform is trying to solve?

20 See the ACT Congress Motion here: https://cdn.workplaceexpress.com.au/files/2018/18manslaughter.pdf.

If the problem is that the community wants to see tougher penalties in the context of serious fatal incidents, then perhaps what is required is to further explore the way the current provisions are enforced, and the potential available and actual penalties imposed under current health and safety offences.

We are only just beginning to see $1 million plus penalties being imposed around the country. The highest penalty, $1,300,000, was handed down in Victoria in December 2017 against Downer EDI Works Pty Ltd, a $1,137,525 penalty was imposed against CK Crouch Pty Ltd (in liquidation) in Victoria, a $1 million penalty imposed in Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92 (5 May 2017) and a $1 million penalty imposed in DPP v Toll Transport Pty Ltd [2016] VCC 1975 (14 December 2016).

The early days of prosecutions arising in the model WHS Laws jurisdictions have not seen consistency in sentences imposed. To illustrate the lack of consistency in sentencing, we undertook a review of a sample of cases in New South Wales, Queensland and South Australia for section 32 (category two offences) involving a breach of section 19(1) of the WHS Laws (the primary duty to workers) in those jurisdictions, breaking down the penalties handed down between January 2017 and July 2018 for those offences. The complete table is provided at Annexure A to this discussion paper.

When you review the financial penalties in terms of lowest penalties, median and highest penalties across those three jurisdictions, there are significant disparities as can be seen in Graph 1 below. The Y axis represents the penalty imposed by the court, ranging $0 to $1,000,000 (the highest penalty imposed being $1,000,000 in NSW). The X axis shows the outcomes for these three metrics according to state.

The real problem: Issues in enforcement, penalties and sentencing

19

21 It should be noted that between Jan 2017 – July 2018 there were 8 cases which the judge deemed to be of “low” seriousness, 8 cases which the judge deemed to be of “high” seriousness and 14 cases which the judge deemed to be of “medium” seriousness. We have selected a sample size of 8 for the medium seriousness cases in order to match the low and high seriousness case numbers and allow us to present the data graphically. See Annexure B to this discussion paper for individual trend lines in each of high, medium and low seriousness of harm of the sample cases used in Graph 2 according to severity of incident.

Deeper analysis based on the NSW cases highlights that there are also discrepancies in terms of penalties imposed when analysed against the key sentencing criteria of ‘seriousness of harm’ as indicated within each of the judgments in the sample cases. Graph 2 below shows penalties imposed in NSW focussing on ‘seriousness of harm’ in relation to breaches of section 19(1) in contravention of section 32 of the Work Health and Safety Act 2011 (NSW). In Graph 2 the Y axis represents the penalty imposed by the court, ranging $0 to $1,000,000 (the highest penalty imposed being $1,000,000). The X axis represents the individual cases.21

At a glance: Current status of industrial manslaughter laws around the country

WACurrent Status: NoGovt. has announced it intends to create a criminal IM offence, with 20 years imprisonment for individuals found guilty of acting recklessly

NTCurrent Status: NoLyons Review will address effectiveness of current offences and penalties under WHS legislation and whether IM offences should be introduced

SACurrent Status: NoLabor lost the SA March 2018 election. IM following Qld's lead promised by Labor SA not likely to occur under this Govt

QLDCurrent Status: Yes Where: See s34C and 34D of the Work Health and Safety Act 2011 (Qld) When: Since 23 October 2017Who: PCBUs and senior of�cers negligently causing deathPenalties: $10 million �ne for corporations and 20 years imprisonment for individuals

NSWCurrent Status: NoLabor opposition committed to creating IM criminal offence if elected in March 2019 state election

ACTCurrent Status: Yes Where: See s49C, 49D and 49E of the Crimes Act 1900 (ACT)When: Since 1 March 2004Who: Employers and of�cers for recklessly or negligently causing the death of a worker by their conductPenalties: $1.5 million �ne for corporations (and up to $5 million with court ordered publicity and projects) and $300,000 for individuals and 20 years imprisonment or both

VICCurrent Status: NoGovt. committed to creating criminal IM offence if re-elected in the November 2018 state election

TASCurrent Status: NoLabor opposition intends to consult with unions and other stakeholders on IM provisions, next State election not due until 2022

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0

Graph 1Total �nancial penalties for breach of primary duty to workers *Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

Highest

Average

Lowest

NSW QLD SA

$200,000$60,000$20,000

$390,000$97,500$39,000

$1,000,000$90,000$12,500

As can be seen in Graph 2, there are a number of instances where penalties imposed in cases where the seriousness of the harm was assessed as medium by the court have outstripped penalties imposed in cases where the seriousness of harm was assessed as high. There have also been cases where penalties imposed for low seriousness of harm have been greater than the lower end of penalties imposed for medium and high seriousness of harm offences.

We have also seen a number of cases where the sentences imposed by the courts at first instance appealed by prosecutors as being manifestly inadequate.22

In addition to issues in sentencing once brought before the courts, a number of high profile prosecutions arising from fatalities have not resulted in the types of outcomes expected by the community with examples including significant back-downs in enforcement action requiring withdrawal of charges initially laid by prosecutors in fatalities.

22 See for example the tripling of the penalty from $50,000 to $150,000 on appeal imposed on Kalafatis Packing Pty Ltd in DPP v Kalafatis Packing Pty Ltd [2018] VCC 638 (3 May 2018) or the Queensland decision where District Court Judge Tracy Fantin increased Mac Farms Pty Ltd’s fine from $1,000 to $10,000 (from a maximum of $30,000), and Mac Plant Pty Ltd’s fine from $2,000 to $35,000 (from a maximum of $500,000), after finding their initial penalties were “manifestly inadequate” in relation to an incident where a seasonal worker on the farm suffered minor injuries when the tractor he was driving left a road and ran into a drain and he was thrown from the operators seat as there was no seatbelt (see Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20 (2 March 2018)).

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0

Graph 3Financial penalty imposed for incidents of ‘high’ seriousness of harm (NSW)*Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

Penalty

Sample Case

$300,000

$275,000

$250,000

$225,000

$200,000

$175,000

$150,000

$125,000

$100,000

$75,000

$50,000

$25,000

$0

Graph 4Financial penalty imposed for incidents of ‘medium’ seriousness of harm (NSW)*Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

Penalty

Sample Case

$100,000

$90,000

$80,000

$70,000

$60,000

$50,000

$40,000

$30,000

$20,000

$10,000

$0

Graph 5Financial penalty imposed for incidents of ‘low’ seriousness of harm (NSW)*Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

Penalty

Sample Case

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0

Graph 2Financial penalty imposed according to ‘seriousness’ of harm (NSW)*Breach of s19(1) in contravention of s32 of Work Health & Safety Act 2011 (NSW) Category 2 Offense

High

Sample Case

Med

Low

21

Case examples include:

1. WorkSafe ACT’s withdrawal of category one offence charges against Schwing Australia Pty Ltd and the NSW engineer Phillip James O’Rourke in relation to the concrete pump collapse on July 21 2012 that resulted in the death of Ben Catanzariti on a construction site at Kingston Foreshore, and

2. the public scrutiny that arose in the context of the plea deal prosectuors accepted with Grocon in the context of three members of the public (two teenagers and a 33 year old woman) being killed at a Swanston Street building site in Melbourne’s CBD on 20 March 2013 as a result of being crushed by part of a collapsed hoarding wall.23 The plea deal involved a Grocon subsidiary, Grocon Victoria Street Pty Ltd pleading guilty to the charges, and receiving a $250,000 penalty in relation to that incident. The maximum penalty available was $305,000 rather than $1.1 million as the Victorian WorkCover Authority applied for the matter to be heard in the Magistrate’s Court summary jurisdiction rather than proceeding to the County Court.

As the Law Council of Australia indicated in its submission to the current Senate Inquiry into the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia:

“Inadequacies in the implementation of current criminal offences or WHS laws can be remedied by clear guidelines and adequate training and resources for effective prosecution and enforcement. If there is evidence to suggest that those who are culpable within a business are unable to be prosecuted, then a review of duty holders and duties should be undertaken with a view to the potential for amendment that would not be limited to situations involving fatalities.”24

23 See for example, the media coverage in WorkCover drops claim Grocon caused deadly wall collapse, The Australia, November 12, 2014 cited here: https://www.theaustralian.com.au/news/nation/workcover-drops-claim-grocon-caused-deadly-wall-collapse/news-story/cfdadb81cdd7fc27cb3cebb1ed3f1e38 and subsequent coverage in Grocon subsidiary fined $250,000 for fatal wall collapse in Melbourne, The Guardian, 21 November 2014, cited here: https://www.theguardian.com/australia-news/2014/nov/21/grocon-subsidiary-fined-250000-for-fatal-wall-collapse-in-melbourne.

24 See Law Council of Australia, Submission to Senate Inquiry on Industrial Manslaughter, paragraph 11.

There are a number of potentially more effective alternatives to introducing industrial manslaughter provisions to solve the chasm between community expectations and current trends in enforcement and sentencing. These are recommendations that ought to be considered as part of the National Review of the Model WHS Laws currently being undertaken by Marie Boland, due to report back to Ministers in early 2019. Some potential solutions in that regard include:

1. Review effectiveness of investigation training and procedures for inspectors – It may be that more detailed guidance is required for inspectorates in relation to the evidence that must be gathered to meet the standard of proof in the most serious types of offences.

2. Revisit the maximum penalties for existing categories of offences under health and safety laws – If the problem is one of the community not seeing a significant enough deterrent factor in the penalties available under the offences that currently exist, it would be simple enough to increase the available maximum penalties in the higher categories of offences in the model WHS Laws regimes and maximum penalties for reckless endangerment under section 32 of the OHS Act in Victoria (or indeed in relation to penalties available for the other duties). There would still be the capacity for general manslaughter provisions to be used in the context of the most egregious conduct that resulted in workplace fatalities which has always existed.25

3. Increasing consistency in sentencing through the introduction of sentencing guidelines for the courts – It may be worthwhile considering the approach adopted by the UK in introducing sentencing guidelines for Courts, tying penalties to both the seriousness of the offence and revenue of the corporation. From 1 February 2016, under the UK’s Coroners and Justice Act 2009, courts are required to follow the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (UK Sentencing Guidelines).

Recommendations for enforcement and sentencing

25 Consider cases such as the 2015 sentence handed down to a managing director of a trucking company, Peter Colbert, who initially received a 13 and a half year gaol term (and then after appeal and retrial, a ten and a half year gaol sentence) after being sentenced for manslaughter associated with the death of a driver operating in a vehicle with faulty brakes.

26 See the Clyde & Co Report, Sentencing in Health & Safety: Headlines and High Fines, July 2017, cited here: https://www.clydeco.com/uploads/Blogs/brexit/Clyde__Co_Health__Safety_Enforcement_report_2017.pdf

23

The UK Sentencing Guidelines link financial penalties to the turnover of the defendant’s business so that penalties have a real impact on the companies concerned and have had an immediate effect on the business community. In the 12 months following the introduction of the UK Sentencing Guidelines, the UK saw more £1 million penalties and above than in the previous twenty years combined (there were 19 such cases of fines exceeding that figure in 2016 in the UK).26 In September 2016, a £4 million penalty was imposed against rail operator Network Rail in the context of a fatal incident involving the death of an 82 year old member of the public when she was hit by a train at a level crossing in Suffolk while walking to feed her chickens at a nearby farm. The prosecution occurred in circumstances where Network Rail had received recommendations to implement warning signs at the crossing on two previous occasions. The rail operator subsequently looked at a footbridge redesign for the crossing. Interestingly, the UK Sentencing Guidelines also saw a September 2016 £5 million penalty imposed against Merlin Attractions Operations Limited in the Stafford Crown Court in the context of a non-fatal incident involving a rollercoaster crash at the popular Staffordshire Alton Towers amusement park on June 2 2015 when a loaded train collided with an empty test train, causing serious injuries to a number of riders27 (which has become known as the Smiler Incident).

Construction company, Manovon Construction was fined GBP £550,000 for two offences of corporate manslaughter and one health and safety breach arising from an incident during the renovation of a London basement flat where two men fell through plyboard hoardings around the site in the early hours of 19 October 2013. This figure represented 27.5% of the company’s annual turnover. Clyde & Co’s exclusive survey of clients in the 12 months following the introduction of the UK Sentencing Guidelines found that there had been a positive impact on health and safety at their organisation arising from the introduction of the UK Sentencing Guidelines for 46.6% of respondents.28

27 11 riders required medical treatment, five were seriously injured with two of the riders requiring partial leg amputations in the weeks following the Smiler Incident.

28 See footnote 23, page 4.

UK sentencing guidelines in focus: An alternative for more consistency in sentencing

Under the UK Sentencing Guidelines, there are separate guidelines for organisations and individuals guilty of different types of offences but essentially a 9 step process whereby the court determines the following:

Step 1: culpability + harm = offence category - This is the main battleground for pre-sentence discussions between prosecution and defence. Culpability can be very high, high, medium or low with the vast majority of cases falling within the “high” or “medium” categories. Fortunately cases where culpability is truly “very high” are rare and few cases properly meeting the description of “low” culpability are prosecuted. Once culpability is determined, the Court must look at the harm risked (not caused) and reach a conclusion as to how likely it was that the harm would eventuate. Only then can it consider whether the offence was a significant cause of actual harm and, if it is, an increase in penalty is likely.

Step 2: starting point and category range - At this point, the financial position of the organisation becomes part of the equation as the Court looks to the available accounts to identify the turnover or equivalent of the defendant. Organisations fall into one of the following categories:

– Micro: turnover not exceeding GBP 2m

– Small: turnover between GBP 2m and GBP 10m

– Medium: turnover between GBP 10m and GBP 50m

– Large: turnover exceeding GBP 50m

Each size banding has a corresponding table setting out the possible offence categories, which are accompanied by a financial starting point and a category range between which the Court will generally sentence. The Court retains the discretion to move outside of those

ranges in the case of “very large” organisations (“VLOs”) where it is necessary to do so in order to achieve a proportionate penalty. VLOs are identifiable as having turnover that “very greatly” exceeds GBP 50m, albeit the UK Sentencing Guidelines does not prescribe a specific level at which this threshold will be passed.

Once a starting point has been identified, the court may adjust that figure upwards or downwards depending upon the presence of aggravating and mitigating features. In particular the presence of previous convictions will likely result in a substantial uplift in the fine.

Step 3: step back – consider proportionality - It is here that the Court looks to make adjustments to achieve a sentence proportionate to the overall means of the offender. This means looking beyond turnover to other financial indicators including profitability and any quantifiable economic benefit derived from the offence. It is also relevant to consider whether the fine will put the offender out of business, the UK Sentencing Guidelines noting that, “in some bad cases this may be an acceptable consequence”. The Court is assisted in setting a proportionate fine by the ability to order payment in instalments, sometimes over several years; a facility increasingly in use.

Step 4: factors indicating reduction - Here the Court must consider the wider impacts of the proposed fine both within the organisation and on innocent third parties. This will include the ability of the defendant to make restitution to victims and to achieve compliance going forwards. The effect on staff, service users, customers and the local economy is also relevant but not the impact on directors and shareholders. Where the organisation is either charitable or public in nature, fines should “normally” be substantially reduced if a significant impact on the provision of services can be demonstrated.

25

Step 5: other factors warranting adjustment - Further adjustment is possible using the principles of criminal law, where an offender has pleaded guilty but has also entered into a written agreement with the prosecution to assist it in some way.

Step 6: credit for any guilty plea - Entering an early guilty plea presents a significant opportunity to achieve a substantial reduction in the level of fine. Done at the first stage of proceedings, the defendant will see a one third discount on sentence. After this point, the maximum available credit is one quarter, which reduces on a sliding scale the nearer a defendant gets to trial, with just one tenth available for the guilty plea at the door of the Court.

Step 7: compensation and ancillary orders - Health and safety prosecutions are typically accompanied by a civil process for compensating injured parties. Where that is absent, the Court may make an order for compensation. Other orders that can be made at this stage include one for remediation; to remedy the deficiencies highlighted by the offending. In most cases, defendants will have dealt with this prior to sentence.

Step 8: totality - Where there is more than one offence in consideration, the Court has to ensure the sentence is proportionate to all the offending behaviour.

Step 9: give reasons - Finally, the Court must give reasons for the sentence imposed and must explain the effect of it. To date, Courts have stuck mechanistically to the task passing each and every staging post along the way. This is perhaps neither surprising nor unwelcome, bearing in mind the need for clarity, consistency and guidance that became so evident at the consultation stage.

The slavish adherence of the Courts has received support in the Court of Appeal, which has made it clear that the UK Sentencing Guidelines is now the only source of reference when setting the level of fine. The practice of drawing comparisons with other cases previously sentenced is now specifically discouraged as the judiciary place the UK Sentencing Guidelines front and centre of its deliberations on penalty.

4. Allowing third party prosecutions if the regulator declines to prosecute – Predecessor health and safety laws allowed for third party prosecutions (such as by unions) and it looks as though Western Australia will also introduce third party prosecutions for unions upon introduction of its version of the model WHS Laws. While we would not support third party prosecutions only being available for union prosecutions (as they are only one type of interested party in a workplace context), allowing any third parties with a sufficient interest in the matter to commence third party prosecutions where health and safety prosecutors have declined to exercise their discretion to prosecute may be another way of increasing community confidence in the legislative regime.

5. Consider whether there is a need to rationalise the courts hearing health and safety prosecutions – There is a lack of consistency across the country in terms of which courts hear health and safety prosecutions. This may also impact upon the consistency of outcomes in such prosecutions. Health and safety prosecutions are heard in magistrates, industrial magistrates, county, district and supreme courts around the country (as well as the Federal Court in some Commonwealth cases), each with varying levels of understanding of the jurisprudence in the area. Sentencing guidelines will go a long way to improving consistency in penalties handed down but it may also be useful to consider whether there should be a rationalisation of the courts that hear health and safety offences so that a more consistently applied jurisprudence may develop.

6. Ensuring that courts are required to make health and safety prosecution judgments available to the public – If general deterrence is one of the intended consequences arising from health and safety prosecutions, the community must have access to all judgments across the country irrespective of the court in which they are heard. Many of the lower courts do not publish judgments and there is limited guidance on reasons for judgment that can easily be applied by the business community at large to improve their health and safety management through lessons from case law.

27

Annexure A: Analysis of penalties and sentences in sample of 2017 and 2018 prosecutions in Qld, NSW and SA

No. Case Citation

Decision Date

Legislation Provision(s) Incident Type Seriousness of Harm (Low/Medium/ High)

Foreseeability of harm (Y/N)

Early guilty plea discount? (Y/N)

Reduction/ discount for presence of mitigating factors? (Y/N)

Total level of discount applied (%)

Penalty

Queensland

1 E197168 12 January 2017

Work Health and Safety Act 2011 (QLD);

Work Health and Safety Regulation 2011 (QLD)

s 19(1) and 32 Falling object Multiple displaced lower leg fractures

Information not provided

Y Y Information not provided

$40,000

2 E222285 27 February 2017

Work Health and Safety Act 2011 (QLD)

s 19(1) and 32 Work at height Fractured left humerus, vertebrae and ribs plus punctured lung



$25,000

3 E194727 27 February 2017


s 19(1) and 32 Falling object Fractured ankle, torn ligaments and tendons



Y Information not provided

$35,000

4 VH & MG Imports Pty Ltd

17 March 2017


s 19(1) and 32 Plant Fatality Y Y Y Information not provided

$125,000

5 E206667 22 March 2017


s 19(1) and 32 Plant; work at height Fatality Information not provided

N Y Information not provided

$80,000

6 E201680 22 March 2017


s 19(1) and 32 Plant; work at height Rib, vertebrae and knee fractures Information not provided


$77,500

7 E210681 19 April 2017


s 19(1) and 32 Plant Left thumb amputated at first knuckle



$32,500

8 E206238 22 May 2017


s 19(1) and 32 Excavation; work at height Fractures to ribs, back and pelvis, displaced shoulder, injury to sternum and right wrist, eye haemorrhage, collapsed lung and nerve damage to back

Y Y Y Information not provided

$75,000

9 E219134 25 May 2017


s 19(1) and 32 Plant Finger Amputation Information not provided


$30,000

No. Case Citation

Decision Date






Penalty

Queensland

1 E197168 12 January 2017

Work Health and Safety Act 2011 (QLD);

Work Health and Safety Regulation 2011 (QLD)

s 19(1) and 32 Falling object Multiple displaced lower leg fractures



$40,000

2 E222285 27 February 2017


s 19(1) and 32 Work at height Fractured left humerus, vertebrae and ribs plus punctured lung



$25,000

3 E194727 27 February 2017


s 19(1) and 32 Falling object Fractured ankle, torn ligaments and tendons




$35,000

4 VH & MG Imports Pty Ltd

17 March 2017


s 19(1) and 32 Plant Fatality Y Y Y Information not provided

$125,000

5 E206667 22 March 2017


s 19(1) and 32 Plant; work at height Fatality Information not provided


$80,000

6 E201680 22 March 2017


s 19(1) and 32 Plant; work at height Rib, vertebrae and knee fractures Information not provided


$77,500

7 E210681 19 April 2017


s 19(1) and 32 Plant Left thumb amputated at first knuckle



$32,500

8 E206238 22 May 2017


s 19(1) and 32 Excavation; work at height Fractures to ribs, back and pelvis, displaced shoulder, injury to sternum and right wrist, eye haemorrhage, collapsed lung and nerve damage to back


$75,000

9 E219134 25 May 2017


s 19(1) and 32 Plant Finger Amputation Information not provided


$30,000

29

No. Case Citation

Decision Date






Penalty

10 E221750 - Officer

25 May 2017


s 27 and 32 Plant Fatality N Y Y Information not provided

$3,000

11 E221750 – Company

25 May 2017


s 19(1) and 32 Plant Fatality N Y Y Information not provided

$60,000

12 Roofmasters Pty Ltd

20 June 2017


s 19(1) and 32 Asbestos Potential exposure Information not provided




$100,000

13 E202336 20 June 2017


s 19(1) and 32 Falling object Fatality Y Y Y Information not provided

$80,000

14 E223927 6 July 2017 Work Health and Safety Act 2011 (QLD)

s 19(1) and 32 Plant Finger Amputation Y Y Y Information not provided

$35,000

15 E207098 – Company 1

11 July 2017


s 19(1) and 32 Work at height Head injuries and fractures to rib and vertebrae


$60,000

16 E165293 24 July 2017




$175,000


27 July 2017


s 19(1), 32 Plant Fatality Y Y Y Information not provided

$200,000


27 July 2017


s 27 and 32 Plant Fatality Y Y Y Information not provided

2 year court ordered undertaking

19 E220848 30 August 2017


s 19(1) and 32 Plant Amputation and crush injuries to left hand



$40,000


8 September 2017


s 27 and 32 Work at height Permanent Paraplegia Y Y Y Information not provided

$25,000 I/D 30 days imprisonment. 6 months to pay.

No. Case Citation

Decision Date






Penalty


25 May 2017


s 27 and 32 Plant Fatality N Y Y Information not provided

$3,000


25 May 2017


s 19(1) and 32 Plant Fatality N Y Y Information not provided

$60,000

12 Roofmasters Pty Ltd

20 June 2017






$100,000

13 E202336 20 June 2017


s 19(1) and 32 Falling object Fatality Y Y Y Information not provided

$80,000

14 E223927 6 July 2017 Work Health and Safety Act 2011 (QLD)

s 19(1) and 32 Plant Finger Amputation Y Y Y Information not provided

$35,000

15 E207098 – Company 1

11 July 2017


s 19(1) and 32 Work at height Head injuries and fractures to rib and vertebrae


$60,000

16 E165293 24 July 2017




$175,000


27 July 2017


s 19(1), 32 Plant Fatality Y Y Y Information not provided

$200,000


27 July 2017


s 27 and 32 Plant Fatality Y Y Y Information not provided

2 year court ordered undertaking

19 E220848 30 August 2017


s 19(1) and 32 Plant Amputation and crush injuries to left hand



$40,000


8 September 2017


s 27 and 32 Work at height Permanent Paraplegia Y Y Y Information not provided

$25,000 I/D 30 days imprisonment. 6 months to pay.

31

No. Case Citation

Decision Date






Penalty


13 September 2017


s 27(1) and 32 Work at height Cuts, abrasions, laceration to the scalp and concussion



$30,000

22 E215674 - Company

13 September 2017





$75,000


24 October 2017


s 19(1) Plant Traumatic amputation of forearm Information not provided



$42,500


13 December 2017


s 19(1) and 32 Work at height Skull, cheekbone and vertebral fractures and brain injury




$65,000

25 E240551 - Worker

16 January 2018


s 28 and 32 Work at height Traumatic brain injury, skull fractures and psychological harm





$15,000

26 E229031 2 February 2018


s 19(1) and 32 Work at height Various fractures injuries Y Y Y Information not provided

$20,000 fine plus a 12 Month court ordered undertaking as per s.239 Work Health and Safety Act 2011 with $15,000 recognisance

27 E220316 9 February 2018


s 19(1) and 32 Plant Fatality Information not provided



$200,000

28 E202276 28 February 2018


s 28 and 32 Plant Chemical burns Information not provided



12 month good behaviour bond with $2,000 recognisance

No. Case Citation

Decision Date






Penalty


13 September 2017





$30,000


13 September 2017





$75,000


24 October 2017


s 19(1) Plant Traumatic amputation of forearm Information not provided



$42,500


13 December 2017


s 19(1) and 32 Work at height Skull, cheekbone and vertebral fractures and brain injury




$65,000

25 E240551 - Worker

16 January 2018


s 28 and 32 Work at height Traumatic brain injury, skull fractures and psychological harm





$15,000

26 E229031 2 February 2018


s 19(1) and 32 Work at height Various fractures injuries Y Y Y Information not provided

$20,000 fine plus a 12 Month court ordered undertaking as per s.239 Work Health and Safety Act 2011 with $15,000 recognisance

27 E220316 9 February 2018


s 19(1) and 32 Plant Fatality Information not provided



$200,000

28 E202276 28 February 2018


s 28 and 32 Plant Chemical burns Information not provided



12 month good behaviour bond with $2,000 recognisance

33

No. Case Citation

Decision Date






Penalty

29 E218233 – Company 2

2 March 2018


s 19(1) and 32 Plant Minor injuries Y Y Y Information not provided

$35,000

30 E235345 28 March 2018


s 19(1) and 32 Plant Finger amputation injuries Y Y Y Information not provided

$40,000

31 E228435 13 April 2018


s 19(1) and 32 Fall from height Dislocation and fracture injuries Y Y Y Information not provided

$60,000

32 E222782 24 May 2018


s 19(1) and 32 Plant Extensive spinal injuries, cracked thorax, multiple breaks both hips and internal injuries

Y Y Y 40% $104,000

No. Case Citation

Decision Date






Penalty

29 E218233 – Company 2

2 March 2018


s 19(1) and 32 Plant Minor injuries Y Y Y Information not provided

$35,000

30 E235345 28 March 2018


s 19(1) and 32 Plant Finger amputation injuries Y Y Y Information not provided

$40,000

31 E228435 13 April 2018


s 19(1) and 32 Fall from height Dislocation and fracture injuries Y Y Y Information not provided

$60,000

32 E222782 24 May 2018


s 19(1) and 32 Plant Extensive spinal injuries, cracked thorax, multiple breaks both hips and internal injuries

Y Y Y 40% $104,000

35

No. Case Citation Decision Date






Penalty

New South Wales

1 SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2017] NSWDC 9

2 February 2017

Work Health and Safety Act 2011 (NSW); Work Health and Safety Regulations 2011 (NSW)

s 19(1) and 32 Falling object Lower end of mid range seriousness

Y Y Y 25% $90,000

2 afeWork NSW v United Roof Tiling Pty Ltd [2017] NSWDC 14 (14 February 2017)

14 February 2017

Work Health and Safety Act 2011 (NSW); Work Health and Safety Regulation 2011 (NSW)

s 19(1) and 32 Work at height High Y Y Y 20% $120,000

3 Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex No 2 [2017] NSWDC 20

21 February 2017

Work Health and Safety Act 2011 (NSW)

s 19(1) and 32 Falling object Medium Y Y Y 20% $220,000

4 SafeWork NSW v Thermal Electric Elements Pty Ltd [2017] NSWDC 62

24 March 2017


s 19(1) and 32 Plant High Y Y Y 25% $250,000

5 Safe Work (NSW) v Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68

31 March 2017


s 19(1) and 32 Work at height Medium Y Y Y 25% $135,000

6 Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92

5 May 2017 Work Health and Safety Act 2011 (NSW)

s 19(1) and 32 Electricity High Y N (plea of not guilty entered)


$1,000,000

7 SafeWork NSW v Grant [2017] NSWDC 99


s 19(1) and 32 Falling object Medium – High Y Y Y Information not provided

$80,000







Penalty

New South Wales

1 SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2017] NSWDC 9

2 February 2017

Work Health and Safety Act 2011 (NSW); Work Health and Safety Regulations 2011 (NSW)

s 19(1) and 32 Falling object Lower end of mid range seriousness

Y Y Y 25% $90,000

2 afeWork NSW v United Roof Tiling Pty Ltd [2017] NSWDC 14 (14 February 2017)

14 February 2017

Work Health and Safety Act 2011 (NSW); Work Health and Safety Regulation 2011 (NSW)

s 19(1) and 32 Work at height High Y Y Y 20% $120,000

3 Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex No 2 [2017] NSWDC 20

21 February 2017



4 SafeWork NSW v Thermal Electric Elements Pty Ltd [2017] NSWDC 62

24 March 2017



5 Safe Work (NSW) v Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68

31 March 2017



6 Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92


s 19(1) and 32 Electricity High Y N (plea of not guilty entered)


$1,000,000

7 SafeWork NSW v Grant [2017] NSWDC 99


s 19(1) and 32 Falling object Medium – High Y Y Y Information not provided

$80,000

37







Penalty

8 SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169

22 June 2017


s 19(1) and 32 Plant Low Y Y Y 25% $90,000

9 Safe Work (NSW) v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191

31 July 2017


s 19(1) and 32 Work at height Low N Y Y 25% $36,000

10 Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192

31 July 2017


s 19(1) and 32 Plant; hazardous or flammable substance

Medium – High N Y Y 25% $45,000

11 SafeWork NSW v Macleay River Protein Pty Limited [2017] NSWDC 204

11 August 2017



12 Safe Work NSW v Grip Asia Pacific Pty Ltd [2017] NSWDC 210

14 August 2017



13 SafeWork NSW v Carroll Springs Pty Ltd [2017] NSWDC 222

23 August

2017


s 19(1) and 32 Plant Upper end of low range Y Y Y 25% $75,000







Penalty

8 SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169

22 June 2017


s 19(1) and 32 Plant Low Y Y Y 25% $90,000

9 Safe Work (NSW) v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191

31 July 2017


s 19(1) and 32 Work at height Low N Y Y 25% $36,000

10 Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192

31 July 2017


s 19(1) and 32 Plant; hazardous or flammable substance

Medium – High N Y Y 25% $45,000

11 SafeWork NSW v Macleay River Protein Pty Limited [2017] NSWDC 204

11 August 2017



12 Safe Work NSW v Grip Asia Pacific Pty Ltd [2017] NSWDC 210

14 August 2017



13 SafeWork NSW v Carroll Springs Pty Ltd [2017] NSWDC 222

23 August

2017


s 19(1) and 32 Plant Upper end of low range Y Y Y 25% $75,000

39







Penalty

14 Safe Work NSW v New South Wales Sugar Milling Co-operative Limited [2017] NSWDC 230

28 August 2017


s 19(1) and 32 Hazardous or flammable substance

Low Y Y Y 15% $42,000

15 SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264

22 September 2017



16 SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66

27 October 2017


s 19(1) and 32 Work at height Upper level of low range Y N Y Information not provided

$80,000

17 SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299

2 November 2017


s 19(1) and 32 Plant Medium Y Y Y 15% $300,000

18 SafeWork NSW v Billyard Homes Pty Limited [2017] NSWDC 336 (24 November 2017)

24 November 2017


s 19(1) and 32 Work at height Low Y Y Y 25% $60,000

19 SafeWork NSW v CTN Construction Pty Limited [2017] NSWDC 340

29 November 2017



20 SafeWork NSW v Auschem (NSW) Pty Limited [2017] NSWDC 338 (27 November 2017)

27 November 2017



High end of the low end range Y Y Y 25% $60,000







Penalty

14 Safe Work NSW v New South Wales Sugar Milling Co-operative Limited [2017] NSWDC 230

28 August 2017



Low Y Y Y 15% $42,000

15 SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264

22 September 2017



16 SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66

27 October 2017


s 19(1) and 32 Work at height Upper level of low range Y N Y Information not provided

$80,000

17 SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299

2 November 2017



18 SafeWork NSW v Billyard Homes Pty Limited [2017] NSWDC 336 (24 November 2017)

24 November 2017


s 19(1) and 32 Work at height Low Y Y Y 25% $60,000

19 SafeWork NSW v CTN Construction Pty Limited [2017] NSWDC 340

29 November 2017



20 SafeWork NSW v Auschem (NSW) Pty Limited [2017] NSWDC 338 (27 November 2017)

27 November 2017



High end of the low end range Y Y Y 25% $60,000

41







Penalty

21 SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349 (11 December 2017)

11 December 2017



22 SafeWork NSW v City Projects Pty Limited [2017] NSWDC 364 (15 December 2017)

15 December 2017


s 19(1) and 32 Falling object High end of the medium range Y Y Y 25% $150,000

23 SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited [2017] NSWDC 365

15 December 2017


s 19(1) and 32 Plant; Falling object High end of the low range Y Y Y 25% $90,000

24 SafeWork NSW v Harry Zizikas [2017] NSWDC 299

2 November 2017


s 27 and 32 Plant Medium Y Y Y 25% $60,000

25 SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312

3 November 2017


s 27, 32 Hazardous or flammable substance

Medium Y Y Y 20% $40,000

26 SafeWork NSW v Broadspectrum (Australia) Pty Ltd [2018] NSWDC 7

2 February 2018


s 19(1), 32 Falling object High Y Y Y 25% $240,000

27 SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman [2018] NSWDC 6

2 February 2018


s 19(1), 32 Plant High Y Y Y 20% Defendant 1 $160,000 Defendant 2 $32,000 Defendant 3 $32,000







Penalty

21 SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349 (11 December 2017)

11 December 2017



22 SafeWork NSW v City Projects Pty Limited [2017] NSWDC 364 (15 December 2017)

15 December 2017


s 19(1) and 32 Falling object High end of the medium range Y Y Y 25% $150,000

23 SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited [2017] NSWDC 365

15 December 2017


s 19(1) and 32 Plant; Falling object High end of the low range Y Y Y 25% $90,000

24 SafeWork NSW v Harry Zizikas [2017] NSWDC 299

2 November 2017


s 27 and 32 Plant Medium Y Y Y 25% $60,000

25 SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312

3 November 2017


s 27, 32 Hazardous or flammable substance

Medium Y Y Y 20% $40,000

26 SafeWork NSW v Broadspectrum (Australia) Pty Ltd [2018] NSWDC 7

2 February 2018


s 19(1), 32 Falling object High Y Y Y 25% $240,000

27 SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman [2018] NSWDC 6

2 February 2018


s 19(1), 32 Plant High Y Y Y 20% Defendant 1 $160,000 Defendant 2 $32,000 Defendant 3 $32,000

43







Penalty

28 SafeWork NSW v Powell [2018] NSWDC 104

12 February 2018


s 32, 27(1) Work at height High Y Y Y 25% $20,000

29 Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19

20 February 2018


s 19(1), 32 Work at height Medium Y Y Y 25% $135,000

30 Safe Work NSW v Modern Touch Marble and Granite Pty Ltd; Safe Work NSW v Johnne Khouri [2018] NSWDC 20

20 February 2018


s 19(1), 32 Falling object Medium Y Y Y 25% Defendant 1 $75,000

Defendant 2 $12,500







Penalty

28 SafeWork NSW v Powell [2018] NSWDC 104

12 February 2018


s 32, 27(1) Work at height High Y Y Y 25% $20,000

29 Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19

20 February 2018


s 19(1), 32 Work at height Medium Y Y Y 25% $135,000

30 Safe Work NSW v Modern Touch Marble and Granite Pty Ltd; Safe Work NSW v Johnne Khouri [2018] NSWDC 20

20 February 2018


s 19(1), 32 Falling object Medium Y Y Y 25% Defendant 1 $75,000

Defendant 2 $12,500

45







Penalty

South Australia

1 Boland v Saxon Energy Services Australia Pty Ltd [2017] SAIRC 12

14 April 2017

Work Health and Safety Act 2012 (SA)


2 Boland v Kentucky Fried Chicken Pty Ltd [2017] SAIRC 16

4 May 2017 Work Health and Safety Act 2012 (SA)

s 19(1) and 32 Trip hazard High Y Y Y 40% $105,000

3 Boland v NDA Australia Pty Ltd [2017] SAET 63

7 July 2017 Work Health and Safety Act 2012 (SA)

s 19(1) and 32 Plant High end of the low range Y Y Y 40% $39,000

4 Boland v Jenny-Lee Sullivan [2017] SAET 68 (13 July 2017)

13 July 2017


s 27 and 32 Plant High Y Y Y 30% Count 1 $85,000

Count 2 $3,500

5 Boland v CJ & Sons Amusements Pty Ltd [2017] SAET 68 (13 July 2017)

13 July 2017



Count 2 $10,500

6 Boland v Balhahn Pty Ltd t/as Balhannah Mitre 10 [2017] SAET 112

28 September 2017


s 19(1) and 32 Falling object Low – Medium Y Y Y 15% $85,000

7 Boland v Thomas Foods International Lobethal Pty Ltd [2017] SAET 115

28 September 2017









Penalty

South Australia

1 Boland v Saxon Energy Services Australia Pty Ltd [2017] SAIRC 12

14 April 2017



2 Boland v Kentucky Fried Chicken Pty Ltd [2017] SAIRC 16

4 May 2017 Work Health and Safety Act 2012 (SA)

s 19(1) and 32 Trip hazard High Y Y Y 40% $105,000

3 Boland v NDA Australia Pty Ltd [2017] SAET 63

7 July 2017 Work Health and Safety Act 2012 (SA)

s 19(1) and 32 Plant High end of the low range Y Y Y 40% $39,000

4 Boland v Jenny-Lee Sullivan [2017] SAET 68 (13 July 2017)

13 July 2017



Count 2 $3,500

5 Boland v CJ & Sons Amusements Pty Ltd [2017] SAET 68 (13 July 2017)

13 July 2017



Count 2 $10,500

6 Boland v Balhahn Pty Ltd t/as Balhannah Mitre 10 [2017] SAET 112

28 September 2017


s 19(1) and 32 Falling object Low – Medium Y Y Y 15% $85,000

7 Boland v Thomas Foods International Lobethal Pty Ltd [2017] SAET 115

28 September 2017



*No penalty imposed as defendants had no capacity to pay.


47







Penalty

8 Soulio v Rota-Forma Pty Ltd t/as Olympic Industries [2017] SAET 123 (14 August 2017)

6 October 2017



9 Soulio v Unifresh Processors Pty Ltd [2017] SAET 167 (8 December 2017)

8 December 2017


s 19(1) Plant Medium Y Y Y 30% $52,500

10 Soulio v Duraform Products (Australia) Pty Ltd [2017] SAET 166 (8 December 2017)

8 December 2017


s 19(1) and 32 Plant Medium - High Y Y Y 40% $60,000

11 Boland v BHP Billiton Olympic Dam Corporation Pty Ltd [2017] SAET 165 (8 December 2017)

8 December 2017


s 19(1) and 32 Falling object High Y Y Y 40% $390,000

12 Soulio v Laszlo Bajtek [2018] SAET 42 (2 March 2018)

2 March 2018


s 19(1) and 32 Struck by vehicle High Y Y Y 20% $96,000

13 Campbell v Jarrad MacGillvary Pty Ltd and Callan MacGillvary Pty Ltd [2018] SAET 87 (11 May 2018)

11 May 2018


s 19(1) and 32 Falling object High Y Y Y 40% $105,000 for each defendant







Penalty

8 Soulio v Rota-Forma Pty Ltd t/as Olympic Industries [2017] SAET 123 (14 August 2017)

6 October 2017



9 Soulio v Unifresh Processors Pty Ltd [2017] SAET 167 (8 December 2017)

8 December 2017


s 19(1) Plant Medium Y Y Y 30% $52,500

10 Soulio v Duraform Products (Australia) Pty Ltd [2017] SAET 166 (8 December 2017)

8 December 2017


s 19(1) and 32 Plant Medium - High Y Y Y 40% $60,000

11 Boland v BHP Billiton Olympic Dam Corporation Pty Ltd [2017] SAET 165 (8 December 2017)

8 December 2017


s 19(1) and 32 Falling object High Y Y Y 40% $390,000

12 Soulio v Laszlo Bajtek [2018] SAET 42 (2 March 2018)

2 March 2018


s 19(1) and 32 Struck by vehicle High Y Y Y 20% $96,000

13 Campbell v Jarrad MacGillvary Pty Ltd and Callan MacGillvary Pty Ltd [2018] SAET 87 (11 May 2018)

11 May 2018


s 19(1) and 32 Falling object High Y Y Y 40% $105,000 for each defendant


49

Graphs 3, 4 & 5 below show the individual trend lines of the sample cases used in Graph 2 in the body of this Discussion Paper, according to severity of incident.

Annexure B – Graphical Representation of Trend Lines for Penalties Imposed in Sample of NSW Cases according to Seriousness of Harm involved in Offence

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0


Penalty

Sample Case

$300,000

$275,000

$250,000

$225,000

$200,000

$175,000

$150,000

$125,000

$100,000

$75,000

$50,000

$25,000

$0


Penalty

Sample Case

$100,000

$90,000

$80,000

$70,000

$60,000

$50,000

$40,000

$30,000

$20,000

$10,000

$0


Penalty

Sample Case

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0


High

Sample Case

Med

Low

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0


Penalty

Sample Case

$300,000

$275,000

$250,000

$225,000

$200,000

$175,000

$150,000

$125,000

$100,000

$75,000

$50,000

$25,000

$0


Penalty

Sample Case

$100,000

$90,000

$80,000

$70,000

$60,000

$50,000

$40,000

$30,000

$20,000

$10,000

$0


Penalty

Sample Case

$1,000,000

$900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

$0


High

Sample Case

Med

Low

51

J436706 - August 2018

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