Australia: Increased Penalties For Subsequent Offenders

In April 2009, the SAIRC in Hillman v Paperlinx Australia Pty Ltd [2009] SAIRC 31 convicted and fined an employer for failing to ensure that an employee was safe from injury and risks to health while at work, in breach of section 19(1) Occupational Health and Welfare Act 1986 (SA) (OHW Act). The defendant, Paperlinx Australia Pty Ltd (Paperlinx), carried on business as a stationery products manufacturer.

An employee of Paperlinx, Mark Barton (Barton), was injured when his right hand became trapped between two unguarded rollers in a printing machine which were 15 to 20mm apart. The injury occurred when Barton was attempting to remove twisted paper from the rollers while the machine continued to operate at normal running speed. Barton suffered a crush and degloving injury to his dominant right hand as a result of the incident. The charge was based upon two failures by Paperlinx: firstly, a failure to provide plant in a safe condition and secondly, a failure to provide and maintain reasonably practicable safe systems of work.

Failure to provide plant in a safe condition

In relation to the first failure, Paperlinx had failed to guard the rollers and failed to guard or regulate access to the top of the machine rollers and nip points. Furthermore, the access ladder and platform which allowed easy access to the top of the machine were not subject to any guarding or interlocking mechanisms. It was found that Paperlinx was aware that its employees were exposed to a risk of injury from the unguarded points and although engineering controls had been identified as the most appropriate method to reduce risk, repeated recommendations were not acted upon by Paperlinx. Paperlinx had administrative controls in the form of safe operating procedures in place; however, those procedures were not enforced.

Failure to maintain safe systems of work

The second failure was a failure by Paperlinx to provide and maintain reasonably practicable safe systems of work. In particular, Paperlinx failed to develop or implement adequate safe operating procedures for clearing paper from the printing machine before a jam had occurred. Paperlinx had posted a warning sign on the machine and told its employee not to remove paper from the machine while it was running. However, supervisors, managers and the site engineer at Paperlinx were aware that it was common practice to remove paper from the machine while it was still running.

Previous conviction

When considering an appropriate penalty, the court took into consideration a similar incident that occurred at Paperlinx two and a half years prior to Barton's injury and in respect of which a conviction under section 19(1) OHW Act was recorded only two months prior to the second incident. The previous incident involved a similar machine and a hand injury which also involved fingers being drawn between unguarded rollers.

Magistrate Hardy noted his concern that Paperlinx had learned little or nothing from the previous incident and that Paperlinx had dealt with the risk by implementing safe operating procedures which were inadequately applied. Magistrate Hardy observed that even though the guarding and preventative measures were expensive, not simple to achieve and required some resources, they were actioned fairly quickly once the machine was subject to a prohibition notice and had to be guarded. Magistrate Hardy convicted Paperlinx and imposed a penalty of $35,000, reduced by 25% in respect of demonstrable contrition and an early guilty plea.

Sentencing considerations

OHS legislation in Australian states and territories provides maximum fines for OHS offences. In South Australia the maximum penalty for a subsequent OHS offence by a company is $600,000 (although it was $200,000 at the time the incident occurred). The penalty range for OHS offences varies across jurisdictions, for example in Queensland the maximum penalty which may be imposed on a corporation for an incident which causes death or grievous bodily harm is $500,000 and in Tasmania the maximum penalty for an OHS offence by a corporation is $180,000.

Australian states and territories also have legislation which sets out sentencing principles which guide the courts in determining an appropriate sentence. For example, in Queensland, a court must have regard to sentences imposed on the offender in another State or Territory for an offence committed at, or about the same time, as the offence for which the court is considering an appropriate sentence. In South Australia, a court in determining a sentence for an offence may have regard to other offences (if any) that are to be taken into account.

In effect, where an obligation holder is found guilty of a subsequent offence, there is an increased likelihood that:

  • a conviction will be recorded; and
  • the fine imposed will be higher than for a similar offence which is a first offence.

In some states and territories such as South Australia and Western Australia, the OHS legislation expressly provides a higher maximum penalty for subsequent offences.

Lessons for employers

This decision demonstrates the importance of implementing more effective controls to address risks in the workplace where administrative controls are disregarded by employees and supervisors in practice. It is common across all jurisdictions that subsequent OHS offences are more likely to result in a conviction being recorded and higher fines being imposed against obligation holders. It is therefore important that obligation holders take positive steps to rectify inadequate procedures identified by the court in an OHS prosecution and further ensure that all safe work procedures are implemented, monitored and enforced in order to decrease the risk of further injury or death.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.