Conclusions
116 The overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all, the relevant circumstances: Coochey v Commonwealth (2005) 149 FCR 312 and the cases there cited.
117 The relevant circumstances will vary from case to case and by reference to the objects of the particular legislation which has been contravened.
118 Pursuant to s 3 of the OHS Act the objects of the Act include:
(a) to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities; and
…
(d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety;
…
(f) to encourage and assist employers, employees and other persons to whom obligations are imposed under the Act to observe those obligations; and
(g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.
119 The applicant contends that guidance may be had from decisions relating to penalty under State occupational health and safety laws which import like obligations on employers.
120 Decisions under the cognate New South Wales Act refer to the following considerations among others:
(i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;
(ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;
(iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;
(iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;
(v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;
(vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;
(vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;
(viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;
(xi) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;
(x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.
121 The applicant contends that the above approach is particularly relevant in the context of the subject OHS Act. The evident purpose of making the Commonwealth liable to a penalty for a breach of s 16(1) of the OHS Act is to mark the seriousness of the conduct and act as a deterrent to the Commonwealth, Commonwealth agencies and other persons who may be subject to the OHS Act.
122 The respondent submitted:
Care must be taken in the use of criminal cases arising under occupational health and safety legislation in the various State jurisdictions. Unlike subsection 16(1) of the OHS Act, the New South Wales equivalent imposes an absolute obligation on an employer to secure the health and safety of its employees, a circumstance that has guided the New South Wales courts in their approach to penalties in criminal proceedings under the NSW legislation. Subsection 11(2) of the OHS Act very deliberately excludes the Commonwealth and Commonwealth authorities (other than Government business enterprises) from liability for prosecution for an offence under the Act. The reasons for this exclusion must go beyond simply easing the procedural and evidentiary burdens faced by Comcare and its investigators in making the Commonwealth accountable for occupational health and safety breaches. As Giles JA observed in Adler v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504, [658]: 'Civil penalties can be regarded as punitive, with a resemblance to fines imposed on criminal offenders, but the resemblance is not identity'.
123 I nevertheless consider that, despite the differences between the New South Wales and the Commonwealth legislation, and bearing in mind that these are civil and not criminal proceedings, the considerations enumerated above, mainly enunciated in decisions of the New South Wales Industrial Commission, provide useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act.
124 The maximum penalty is 2,200 "penalty units", a penalty in money terms of less than $250,000. While this is, relatively speaking, very low, and would itself be likely to have no deterrent (or otherwise useful) effect, it provides, as does the Court's declaration, an occasion for what I hope is a properly measured denunciation, on behalf of the Australian people, of the Army's breaches of the law.
125 I cannot impose the maximum penalty for the reason suggested by Mr Maurice QC for the respondent, namely that there was no conscious decision to flout the law, this is not quite in the worst class of case. The seriousness of the breaches of the law mean, however, that the case is close to being in the worst class. There were systemic failures of the most serious kinds.
126 I must also abate the penalty to a degree on account of the Army's frank and honest acceptance of its shortcomings and its commendable efforts to mend them.
127 About eight years before Trooper Lawrence died, a sensible and senior expert trainer reported that it would be "folly" to train soldiers in field work in the wet season in the Northern Territory. Among other things, the likely discomfort to participants would prejudice their learning process. Army personnel were at pains to prepare and issue SAFETYMAN in 2002. SAFETYMAN, as it existed before the Corporal Course, was not criticised by Comcare as then being inadequate. Had that manual been followed it is likely that a fine young soldier would be alive today. SAFETYMAN in particular ordered that routine training, "getting the job done", was not to take precedence over the serious and difficult risks of heat stroke. In 2004, over an appreciable period and not just a single day, the Army failed its legal obligations in the ways admitted and in circumstances fairly characterised in the submissions of both parties.
128 It is true that the Army made, through Brigadier Bornholdt an "abject" apology to Trooper Lawrence's family. No less was called for. It is a bitter irony that it fell to the same officer who, had his 1996 (or 1997) warning been listened to in 2004, would have avoided Trooper Lawrence's death, to tender the apology on behalf of the Army.
129 On the other side of the record there was, as submitted, no conscious and deliberate disregard of the soldiers' safety. Rather, on quite inadequate grounds, despite the great experience of those involved, it was decided that the risks could be satisfactorily managed. A broad general experience of living and working, and even Army service, in tropical areas of Australia and elsewhere would not necessarily equip a person with an understanding of all the mechanics of when and how heat illness might be caused, and how serious and unpredictable heat injury might be. Trooper Lawrence does not seem to have had any inherent physical characteristics that might have predisposed him to the fatal injury as mentioned. This was no "eggshell skull" case. The risks were greatly underestimated.
130 The decision to proceed with the Corporal Course in November 2004 was influenced by the "culture" identified by Colonel Rudzki. To the extent that limited resources contributed, as I think they did, to that culture and to the decision to hold the course in November 2004, it is no answer to rely on such a limitation. Resources are always limited. If the law obliges employers (as it does) that, as far as is reasonably practicable, they must take steps to protect employees' health and safety, they must allocate resources so as to acquit that obligation. In the judgment of what is "reasonable", the effects on life and limb and on actual resources, if health and safety is not protected, need to be weighed. It was not suggested here that resources could not reasonably have been found to avoid the felt necessity to embark on the November 2004 course or to continue with it after the dire warning implicit in Private Scott's heat injury.
131 The post-accident response of the Army, while it shows how much more might have been done before Trooper Lawrence's death, does deserve, in an imperfect world, the praise given to it by the Coroner. In such a world, one cannot reasonably ask for more. There appears to have been no cover-up, no protection of any officer, senior or otherwise, but on the contrary, a well-organised, expert and determined set of initiatives taken to discover and redress the significant deficiencies and mistakes and to institute new and better forms of protection against heat injury and illness. On such evidence as is before me, the ADF has sought to enter what is hoped to be a new era of service safety, both as to heat illness and generally.
132 I will order a penalty of 1800 penalty units. (That translates, on the somewhat outdated scale of money equivalents for penalty units provided by the Crimes Act 1914 (Cth) and in force as at the hearing, to a money sum of $198,000. Anything less would invite a lack of confidence in the Court as well as concern about the state of the law.
133 I respectfully suggest that consideration be given by the decision-makers for the recipient of the penalty to payment thereof to Trooper Lawrence's family by way of a modest, concrete gesture of consolation.