Media Release
Embargoed until 00:01 a.m. (AEDT) Wednesday 26 February 2025
The Victorian Sentencing Advisory Council has today published a report with 12 recommendations to change how occupational health and safety (OHS) offences are sentenced in Victoria. For cases involving OHS offences, the recommendations aim to enhance the role of victims in sentencing, change sentencing practices, and improve payment rates for fines imposed on companies.
Last year, the Victorian Government asked the Sentencing Advisory Council for advice about whether the sentencing of offences in the Occupational Health and Safety Act 2004 (Vic) needs to change. This is the first such review since that Act came into operation 20 years ago.
Since receiving the terms of reference, the Council has:
- consulted with dozens of key stakeholders to understand areas of concern
- published a statistical report, based on 16 years of court sentencing data, to understand current sentencing practices
- published a consultation paper, based on a review of academic research and case law, seeking stakeholder views on potential areas of reform
- received written submissions from the legal profession, unions, employer groups and others, about which reforms are most needed
- hosted a survey on Engage Victoria to seek community views about possible changes and
- facilitated a series of community consultation events around Victoria, asking participants to sentence a real-life OHS case themselves, to gauge community expectations.
The results of this research and consultation has led the Council to conclude that there is a significant need for reform to how OHS offences are sentenced in Victoria. Sentencing practices in certain cases are not currently capable of achieving the purposes of sentencing in the Sentencing Act, and those practices are out of alignment with community expectations, especially in cases involving larger companies. There is a clear need for higher fines in some cases, and even more importantly, there is a need to use a wider range of sentencing orders other than fines. In particular, health and safety undertakings (which can involve conditions requiring companies to do certain things) and adverse publicity orders (which require companies to publicise their offending) are both extremely underutilised at the moment. The Council also found that there are millions of dollars in unpaid fines for OHS offences each year, most commonly in cases involving companies that have been deregistered since the offending.
To achieve the necessary changes, the Council has recommended a package of 12 reforms, including:
- expanding the opportunities for people affected by OHS offences to participate in sentencing, including broadening the eligibility for who can submit an ‘impact statement’ telling the court about how an offence has affected them, and enabling people to participate in a victim-centred restorative justice conference, with important safeguards such as informed consent
- a fivefold increase in maximum penalties for companies and individuals who breach their health and safety duties
- new policies at WorkSafe Victoria that encourage prosecutors to advocate for increased use of health and safety undertakings and adverse publicity orders
- new mechanisms to improve accountability for penalties imposed, including making more company directors personally liable for fines in appropriate circumstances, and investigating the potential introduction of successor liability in Victoria, which would mean a phoenix company could be held accountable for fines imposed on the deregistered company that it replaced and
- developing a world-first legislated sentencing guideline to include in the Occupational Health and Safety Act. That guideline would provide courts with guidance on how to calibrate penalties to the relative financial circumstances of offenders and would include ranges of indicative sentences based on key factors in the case, such as the fact that someone was killed or injured as a result of the offence.
Quotes Attributable to Sentencing Advisory Council Director Stan Winford
‘The Council’s work over the last two years leads to the inescapable conclusion that the current approach to sentencing for workplace health and safety breaches in Victoria needs to change. Injured workers and their families, and other people affected by an OHS offence, should be able to tell a court how they have been affected by the offending.
‘It’s also very clear that fines need to increase so that they represent a meaningful deterrent or punishment, and give effect to community expectations. And there is more that can be done to ensure fines intended to deter and punish OHS offences are actually paid by offenders.
‘During our substantial consultations on this government reference, there was a strong consensus that more effective sentencing for OHS offences will make workplaces safer. The Council’s proposed legislated sentencing guideline can achieve this aim by ensuring that employers are appropriately punished when they fail in their duties to protect employees and others from risks. Even more importantly, these sentencing reforms have the potential to encourage better safety practices in all Victorian workplaces.’
The report will be available on the Council’s website on Wednesday 26 February 2025.
About the Sentencing Advisory Council: The Council is an independent statutory body established in 2004. It has a number of legislative functions, including conducting research on sentencing, consulting on sentencing matters, publishing sentencing statistics, and advising the Attorney-General on sentencing matters.
