Victoria tightens the noose in light of non-compliance with OHS prosecutions

The Victorian Sentencing Advisory Council is an independent statutory body established in 2004 under amendments to the Sentencing Act 1991 (Vic).

Section 108C of the Act states that the functions of the Council are to:

• provide statistical information on sentencing, including information on current sentencing practices to members of the judiciary and other interested persons

• conduct research and disseminate information to members of the judiciary and other interested persons on sentencing matters

• gauge public opinion on sentencing

• consult on sentencing matters with government departments and other interested persons and bodies as well as the general public

• advise the Attorney-General on sentencing issues

• provide the Court of Appeal with the Council's written views on the giving, or review, of a guideline judgment.

Review of sentencing practices

In 2024, the Sentencing Advisory Council was tasked with reviewing and reporting on sentencing practices for offenses under the Occupational Health and Safety Act 2004 (Vic) (OHS Act), and to propose appropriate reforms.

This marked the first review of sentencing practices for OHS offences since the OHS Act was implemented in Victoria on 1 July 2005.

The Sentencing Advisory Council was tasked with:

• reviewing current sentencing practices;

• engaging with stakeholders and the wider Victorian community;

• assessing whether existing sentencing practices meet community expectations;

• considering the role of injured workers and families in the sentencing for OHS offences; and

• analysing the enforcement of sentencing orders, particularly court fines.

In early 2025, the Council released its report with 12 recommendations.

Council Findings

One of the findings by the Council was that current sentencing practices for OHS offenses do not align with community expectations, particularly in cases involving larger corporations. The council found that many fines issued don't get paid despite over 90% of sentences being fines. Further, the council found that sentencing options other than monetary fines, were under-utilised.

Council Recommendations

The Council advocated for higher fines in certain cases and the adoption of a broader range of sentencing orders beyond fines, including enforceable undertakings and forcing greater public exposure, in effect more harshly "naming and shaming" offenders.

It is the state regulator, WorkSafe VIC, that has the role of enforcing compliance with OHS laws. The Council suggested the following to WorkSafe VIC:

• that there be a 500% increase in maximum penalties for businesses and individuals that violate their OHS duties;

• that WorkSafe Victoria implement new policies that encourage prosecutors to not "take the easy way out" of just issuing fines but instead push for increased use of enforceable undertakings and adverse publicity orders;

• that WorkSafe VIC develop new and improved mechanisms that enable them to enforce compliance with penalties issued for offences and bear greater pressure on company directors to pay their fines.

• that the OHS Act be amended to include a sentencing guideline to provide courts with guidance on scaling penalties to the seriousness of the offenses.

The Council also considered, but ultimately did not recommend, diversion activities, which the Council is otherwise familiar with through its Criminal Justice Diversion Program. In the criminal system "diversion notices" may be issued to offenders in a similar way that enforceable undertakings are issued to businesses. Such notices given to individual offenders may require them to do such things as pay for damages, apologise to victims, write a letter of thanks to the police, donate to a charity, participate in counselling, or undertake a course in rehabilitation as an alternative to other sentencing measures. Diversion notices have deadlines for each item on the list. Acceptance and participation in this type of program implies that the offender is expressing accountability and responsibility for their crimes. Statistics in Victoria suggest that individuals receiving diversion are about half as likely to reoffend as people receiving other court outcomes. Diversionary initiatives are also more cost-effective for the parties and reduce burdens on the justice system.

On this subject the Council stated in their report:

One of the key drivers behind our initial enthusiasm for increased use of diversion was that we heard how inaccessible enforceable undertakings were for most companies accused of OHS offences. One legal professional told us that, anecdotally, the legal fees associated with negotiating an enforceable undertaking will usually be in the realm of $250,000. That is clearly unaffordable for the vast majority of businesses, meaning that only larger companies, with the financial means, can afford to negotiate an enforceable undertaking and avoid a finding of guilt. Enforceable undertakings are already effectively a form of diversion that occurs outside court processes.

Victorian government response

By May 2025, the Victorian Government has not yet addressed the recommendations put forth by the Sentencing Advisory Council. Several of these proposals are significant. The Council's strategy clearly aims to impose stricter measures on offenders, a step considered necessary due to the non-compliance and defiance shown by some businesses and individuals in Victoria regarding OHS prosecutions.

The Council clearly sees the need to "tighten the noose" on non-compliance. This can only benefit the health and safety standards of workplaces in Victoria. If actioned by the Victorian government, the recommendations may influence other jurisdictions if ultimately successful. Historically, Victorian health and safety initiatives have contributed to changes in other jurisdictions, e.g. industrial manslaughter laws and psychological health. Victorian OHS legislation played a major part in the development of the harmonised Model WHS Laws which, with the exception of Victoria, have been adopted by every other jurisdiction in Australia since 2012.

For more information on OHS and WHS training or OHS and WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us by email at train@courtenell.com.au or phone us on 02 9552 2066