The Sentencing Advisory Council is an independent statutory authority which is currently reviewing how OHS offences committed by individuals and companies are sentenced in Victoria.

The Council will be considering whether sentencing laws and practices could be changed to promote the objectives of the Occupational Health and Safety Act 2004 (Vic) and improve workplace health and safety in Victoria.

Part of the reason for the reform is that sentencing of OHS offences in Victoria and Australia has reviewed repeatedly over the last 30 years or so, with themes from these revealing that:

• fines for OHS offences are too low to change companies’ behaviour
• sentencing orders other than fines should be available and used in a wider range of OHS cases
• there should be some improved guidance for courts about the sentencing of OHS offences.

“In order for the criminal justice system to play its small but important role in ensuring workplace health and safety standards in Victoria, it’s critical that the sentencing of OHS offences is fit for purpose,” the Council notes.

“If sentencing standards are too inconsistent with community expectations, if injured workers and their loved ones feel improperly excluded from the process, or if fines for unsafe work practices are just ‘the cost of doing business’, then the system is not working.”

Key statistics in the consultation process found:

• breach of duty offences made up the majority (78 per cent) of all OHS offences;
• sentencing of companies (as opposed to individuals), made up 83 per cent of 1,197 OHS offenders
• nearly all offenders were men, with only six females (0.5 per cent) sentenced for OHS offences, though one was also the only person to receive a prison sentence for an OHS offence (for recklessly endangering serious injury in a workplace)
• 67 per cent of all fines were fully paid and 27 per cent of offenders never pay their fines at all (including companies in liquidation or ‘phoenix’ companies).

The aim of the consultation paper is to explore afresh potential reforms to improve the sentencing of OHS offences in Victoria.

Some of the questions in the consultation paper are around what objective factors should be when courts are determining an appropriate sentence in OHS cases, the extent to which the size of the company should dictate fine amounts, what subjective factors (guilty pleas, good character, prior history, remedial actions) should determine an appropriate sentence, the use of alternative sentencing orders (fines, programs and safety undertakings) and more.

Consultation is available to all relevant stakeholders and lasts from 13 February 2024 to 31 May 2024. Consultation review and analysis will take place in June 2024, with a final report and recommendations marked for February 2025.

More information and submissions are available via Sentencing Occupational Health and Safety Offences in Victoria.

How the Victorian Chamber can help

The Victorian Chamber is a leading provider of quality OHS training and consulting services that cover all of your safety needs, no matter the size of your business or where you are on your safety journey. More information is available via our Occupational Health & Safety (OHS) suite.