By TOM HAYES
A NEW consultation paper has been released by the Sentencing Advisory Council (SAC), detailing and examining sentencing practices for occupational health and safety offences in Victoria.
The paper provides information that will form the basis for forums in Gippsland and greater Victoria that aim at community feedback on OHS and sentencing practices, which will be taken into account in the final recommendations.
The council was formed in 2004 to bridge gaps between the community and the court system, educating the wider population on sentencing issues.
The council’s responses have previously resulted in changes to maximum penalties for offences or breaches of intervention orders, abolition of suspended sentences, the introduction of the Sentence Indication Scheme, and the addition of hatred and prejudice as a factor of sentencing.
This paper is the first in the council’s history, examining sentencing practices since the inception of Victoria’s Occupational Health and Safety Act 2004 (Vic), which came into effect in July 2005, up until June 2021.
The most common offences against that Act involve employers who fail to take all reasonably practicable steps to ensure the safety of employees and those in the public.
The Attorney-General, Jaclyn Symes, gave the council terms of reference into OHS offences committed by individuals and organisations separately.
Those terms were to:
Examine OHS offences sentencing practices;
Consult with stakeholders and the community;
Consider whether sentencing practices align with community expectations;
Consider the role of injured workers and their families in sentencing proceedings, and;
Examine the enforcement of sentencing orders, especially payment rates for court fines.
The council’s first step was to consult with employee representatives and unions, industry groups and employers, the legal profession, and the broader community to identify potential areas for reform, in response to the Attorney-General’s terms, finalised in September 2023.
The latest to be released, the consultation paper and statistical report, is just the second step in the council’s four-step strategy.
Next, the council will undertake community consultation, calling for written submissions and hosting a series of consultations from February to May this year in regional Victoria, as well as suburban and metropolitan Melbourne.
The council has been asked to deliver its final report with recommendations to the Attorney-General and the Minister for WorkSafe and TAC, Danny Pearson, by December 31, 2024, as the final step.
The council’s consultation paper examined court data from OHS offences, including fine repayment rates, with the help of WorkSafe Victoria, the courts and Fines Victoria. The paper, written by Sentencing Advisory Council Chief Executive, Dr Paul McGorrery, Octavian Simu, Zsombor Bathy and Melanie Hull, identified a number of key findings.
“The Sentencing Advisory Council at the moment is exploring whether sentencing practices for these offences need to change, and you can’t know whether something needs to change unless you know where they are now,” Dr McGorrery said.
“So what we’ve done is explored 16 years of court data, brought it together in as successful format as we can to share it with the community and all of our stakeholders, to hopefully put them in the best position to help tell us ‘Do current sentencing practices align with community expectations, or is there a change that needs to be made?’
“There is a lot of issues in here that we think a lot of Victorians will feel strongly about, and we are looking to hearing what their views are.”
Along with the council’s paper, a statistical report based on OHS offences was released to help inform their consultations.
The consultation report highlighted that from the 400,000 workplaces in Victoria, 40,000 WorkSafe inspections are conducted each year.
It was found that OHS offences are most common in the construction (36 per cent) and manufacturing (30 per cent) industries.
Over the 16 years of data that was collated, the council looked at 1197 cases – about 75 cases per year – and found that someone was injured in 64 per cent of cases, someone was killed in 11 per cent of cases, or no one was killed or injured in 25 per cent of cases.
The most common OHS offence is an employer breaching safety duties to employees.
The most frequent sentence for OHS offenders has been a fine, which occurred in 87 per cent of cases; 11 per cent of cases result in a good behaviour order; and the remaining two per cent result in a Community Corrections Order, diversion or prison.
Previous reviews have come to the conclusion that fines were too low to deter any unsafe work practices, especially in large companies.
The average fine over the past 10 years in Victoria is $69,000. The smallest was $600, while the largest was $1 million. The maximum fine that can be issued is $1.7 million for a company, or $350,000 for an individual.
It was also discovered that from all cases resulting in a fine, only 67 per cent were paid in full. In the four-and-a-half year period up until June 2021, about $10.3 million in fines went unpaid, about $2.3 million per year over that period.
Dr McGorrery found this to be the most surprising finding from the data.
“We saw about two thirds in fines from OHS cases are fully paid, and that’s actually pretty consistent with what you see in other types of cases,” he said.
“But when you look at it in dollar terms in OHS cases, that’s over $10 million in unpaid fines in a four-and-a-half year period, and you’ve got to wonder ways to improve fine payment rates.”
The most significant predictor of a fine going unpaid is the fact that the offender is now a deregistered company.
“We looked into what was causing fines to go unpaid, and overwhelmingly the strongest predictor of a fine for an OHS case going unpaid was the offender being a company that get deregistered around the same time of, or soon after receiving the fine,” Dr McGorrery said.
In Gippsland, there were 58 OHS cases – 4.8 per cent of OHS cases in Victoria between July 2005 and June 2021 – resulting in 104 OHS charges, 5.5 per cent of OHS charges in Victoria.
From that, there was a total of 32 non-aggregate fines for companies in Gippsland during that period, the smallest fine being $3000, the average fine was $30,000, and the largest fine was $388,650.
Later this month, the Sentencing Advisory Council is hosting a plethora of community forums to gauge expectations on sentencing, in order to keep people safe at work.
“We will literally be asking the community to be the judge,” Dr McGorrery said.
The council will be sharing real OHS cases, asking those in attendance what punishment they would give the offending company and why they made their decision, all before hearing what the judge in that case gave the offender.
Those in attendance will share how they feel about the real sentence after getting that information.
The council is set to visit Morwell, Ballarat, Shepparton, Bendigo, Geelong, Lilydale, Dandenong, Melbourne and Werribee to conduct these consultation events.
Morwell is have its event on Wednesday, February 21 from 5.30pm until 7pm at the Morwell Bowling Club.
To register for the free community consultation event go to tinyurl.com/5yj3p962
For examples of recent OHS cases in the Latrobe Valley, the WorkSafe Victoria website allows users to filter by the Court in which their prosecutions were sentenced. Go to worksafe.vic.gov.au/prosecution-result-summaries-enforceable-undertakings
The consultation report is available to view on the Sentencing Advisory Council’s website at sentencingcouncil.vic.gov.au/
An Engage Victoria survey is also now live at engage.vic.gov.au/sentencing-ohs-offences-in-victoria
