Australian Capital Territory Numbered Acts

OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT 2004 (NO. 29 OF 2004) - SECT 14

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Division 3.2     Failure to comply with safety duties

35B     Meaning of safety duty for div 3.2

In this division:

"safety duty" means a duty under any of the following provisions:

              •     section 27 (Duties of employers in relation to employees)

              •     section 28 (Duties of employers in relation to third parties)

              •     section 29 (Duties of people in control of workplaces)

              •     section 30 (Duties of employees)

              •     section 31 (Duties of self-employed people)

              •     section 32 (Duties of manufacturers in relation to plant and substances)

              •     section 33 (Duties of suppliers in relation to plant and substances)

              •     section 34 (Duties of people erecting or installing plant in workplace).

35C     Failure to comply with safety duty—general offence

    (1)     A person commits an offence if—

        (a)     the person is required to comply with a safety duty; and

        (b)     the person fails to comply with the safety duty.

Maximum penalty: 100 penalty units.

    (2)     Absolute liability applies to subsection (1) (a).

    (3)     Strict liability applies to subsection (1) (b).

35D     Failure to comply with safety duty—exposing people to substantial risk of serious harm

    (1)     A person commits an offence if—

        (a)     the person is required to comply with a safety duty; and

        (b)     the person fails to comply with the safety duty; and

        (c)     the failure exposes anyone to a substantial risk of serious harm; and

        (d)     the person either—

              (i)     was reckless about whether the failure would expose anyone to a substantial risk of serious harm; or

              (ii)     was negligent about whether the failure would expose anyone to a substantial risk of serious harm.

Maximum penalty: 1 500 penalty units, imprisonment for 5 years or both.

    (2)     Absolute liability applies to subsection (1) (a).

35E     Failure to comply with safety duty—causing serious harm to people

    (1)     A person commits an offence if—

        (a)     the person is required to comply with a safety duty; and

        (b)     the person fails to comply with the safety duty; and

        (c)     the failure causes serious harm to anyone; and

        (d)     the person either—

              (i)     was reckless about whether the failure would cause serious harm to anyone; or

              (ii)     was negligent about whether the failure would cause serious harm to anyone.

Maximum penalty: 2 000 penalty units, imprisonment for 7 years or both.

    (2)     Absolute liability applies to subsection (1) (a).

35F     Alternative verdicts for failure to comply with safety duties

    (1)     This section applies if, in a prosecution for an offence for a failure to comply with a safety duty, the trier of fact—

        (a)     is not satisfied beyond reasonable doubt that the defendant is guilty of the offence; but

        (b)     is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence.

    (2)     The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to the finding of guilt.

    (3)     In this section:

"alternative offence", for an offence mentioned in the table of alternative verdicts, column 2, means an offence mentioned in table 35.F.1, column 3 for the offence.

Table 35F.1     Alternative verdicts

column 1 item	column 2 prosecuted offence	column 3 alternative offence
1	section 35D (which is about exposing people to substantial risk of serious harm)	section 35C (Failure to comply with safety duty—general offence)
2	section 35E (which is about causing serious harm to people)	section 35C section 35D