Organizations are often charged with regulatory offences and defending them requires a precise and aggressive approach.

Generally speaking, it is up to the organization charged to prove due diligence.

Below is an outline of the involvement of due diligence recently provided to a client regarding an OH&S charge.

The following are the important features:

• Charges under the OH&S Act, as well as other regulatory offences are known as "absolute liability" offences in that the prosecution doesn't have to prove intent to get a conviction.  The incident plus causation is enough to nail it down;
• As one case points out "the primary defence in the prosecution of a health and safety offence is the defence of due diligence".  I can tell you that this defence is often used but not well by defence lawyers, partly because most lawyers defending regulatory charges have not been involved in more serious criminal trials before tough judges and juries. JP courts are simply too civilized. These are serious charges and they should be seriously challenged;
• The onus is on the company charged to prove that it took "all reasonable steps" to prevent the occurrence. This usually requires that the employer establishes, on a balance of probabilities that it has established a system of procedures intended to ensure a safe workplace and that the system is implemented, monitored and enforced internally by the employer. This is the type of system that we put in place with Strategic Risk Control so we are very familiar with its requirements;