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NEW PENALTIES
The COR amendments impose a primary duty upon all members of the supply chain to minimise potential risks by doing all that is ‘reasonably practicable’ to ensure safety. These new amendments closely resemble the national work health and safety laws ( Work Health and Safety Act 2011 (Cth)) and associated regulations ( WHS ). The COR amendments will also impose a primary duty upon company executive officers to exercise due diligence to ensure that a corporation complies with its duties under the HVNL. In defending a claim for breach of the COR, all participants in the supply chain will need to demonstrate the measures that were in place, at the time of the breach, to prevent breaches of the HVNL from occurring. In addition, it will be necessary to provide evidence that a party did all that was ‘reasonably practicable’ to minimise risks and ensure safety. In determining whether an entity has ensured safe practices, as far as is ‘reasonably practicable’, the regulator will consider factors such as the likelihood of the risk occurring; the degree of harm; the entity’s knowledge of the risk; ways to remove the risk and whether this is feasible, as well as whether the costs of removing the risk are proportionate. DEFENCES
The investigative powers of the regulator will be extended and the regulator will have the ability to prosecute companies for both breaches of the HVNL and for a failure to implement practices which would prevent a breach from occurring. The penalties for breach of the new laws will be a maximum fine of AUD 3 million for a company and a maximum fine of AUD 300,000 or five years’ imprisonment (or both) for an individual.
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