Industrial manslaughter laws have been in place in the Australian Capital Territory and Queensland for a number of years now. More recently, there has been a drive to introduce industrial manslaughter offences in the Northern Territory, Western Australia and Victoria. These legislative changes are now imminent and will likely come into force early this year.
Notwithstanding the push in other States and Territories, there are no specific industrial manslaughter laws in place in South Australia, New South Wales or Tasmania. However, employers can be prosecuted for workplace fatalities under general workplace safety legislation and this position appears unlikely to change in the near future.
There are longstanding opposing views as to whether industrial manslaughter laws are necessary. Some States and Territories have taken the view that there was a gap under general criminal law in circumstances of a workplace fatality and have introduced industrial manslaughter laws as a major deterrent (with much higher penalties) for serious safety breaches resulting in a workplace death. However, other States and Territories consider a specific offence is inconsistent with the overall objective of safety legislation, being to prevent workplace deaths and injuries, rather than just imposing punishment after the event.
Given that each State and Territory has taken a different approach to the implementation of industrial manslaughter laws, we examine below the state of play in each of the Australian jurisdictions where these laws are, or are soon to be, in place.
Australian Capital Territory
The ACT was the first territory to introduce an industrial manslaughter regime. The offence was introduced by the Crimes (Industrial Manslaughter) Act 2003 (ACT), which amended the Crimes Act 1900 (ACT) effective from 1 March 2004.
Under the Crimes Act 1900 (ACT) an employer or a senior officer of an employer commits the offence of industrial manslaughter if:
- A worker of the employer dies in the course of employment by, or providing services to, or in relation to, the employer or is injured in the course of employment by, or providing services to, or in relation to, the employer and later dies;
- The employer or senior officer’s conduct causes the death of the worker; and
- The employer or senior officer is reckless about causing serious harm to the worker, or any other worker of the employer, by the conduct; or negligent about causing the death of the worker, or any other worker of the employer, by the conduct.
Maximum penalties for each offence are 2,000 penalty units (currently $1.62 million for a body corporate and $320,000 for an individual), imprisonment for 20 years or both.
The Queensland industrial manslaughter laws were introduced through the Work Health and Safety and Other Legislation Amendment Act 2017 (QLD), which amended the Work Health and Safety Act 2011 (QLD) (QLD Act). These amendments took effect on 23 October 2017.
Parallel provisions are contained within the Electrical Safety Act 2002 (QLD) and the Recreational Water Activities Act 2011 (QLD). The Queensland Government has also recently sought to extend the offence to the Coal Mining Safety and Health Act 1999 (QLD), Explosives Act 1999 (QLD), Mining and Quarrying Safety and Health Act 1999 (QLD) and Petroleum and Gas (Production and Safety) Act 2004 (QLD).
Under the QLD Act, a person conducting a business or undertaking (PCBU), or a senior officer commits the offence of industrial manslaughter if:
- A worker dies in the course of carrying out work for the business or undertaking or is injured and later dies;
- The PCBU or senior officer’s conduct causes the death of the worker; and
- The PCBU or senior officer is negligent about causing the death of the worker by the conduct.
The maximum penalties under the QLD Act are 20 years imprisonment for an individual or 100,000 penalty units for a body corporate (being $10 million).
The NT Government has recently introduced the offence of industrial manslaughter by way of amendments to the Work Health and Safety (National Uniform Legislation) Act 2011 (NT Act). The amending legislation, known as the Work Health and Safety (National Uniform Legislation) Amendment Act 2019 (Amendment Act), received royal assent on 10 December 2019 but is yet to commence. It is likely the new legislation will start operating in early 2020.
The Amendment Act provides that a person (being either a PCBU or an officer of a PCBU) commits the offence of industrial manslaughter if:
- The person has a health and safety duty;
- The person intentionally engages in conduct;
- The conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and
- The person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.
The introduction of the industrial manslaughter offence in the NT will not impose additional duties on duty holders under the NT Act. However, these legislative changes will increase the maximum penalties under the NT Act to life imprisonment for an individual or 65,000 penalty units (currently $10,205,000) for a body corporate if found guilty of industrial manslaughter.
After years of consultation and discussion, WA has recently taken steps to harmonise its safety laws with the national model by introducing the Work Health and Safety Bill 2019 (WA Bill) to replace the existing Occupational Safety and Health Act 1984 (WA). This is further explained in our article published on 27 November 2019 which can be accessed here.
Under the WA Bill, the industrial manslaughter offences are separated into two categories, described as “crime” (being the more serious offence with higher penalties) and “simple offence”.
The WA Bill provides that a person commits a “crime” if:
- The person has a health and safety duty as a PCBU;
- The person engages in conduct that causes the death of an individual;
- The conduct constitutes a failure to comply with the person’s health and safety duty; and
- The person engages in the conduct “knowing that the conduct is likely to cause the death of an individual” and “in disregard of that likelihood”.
In comparison, a person commits a “simple offence” if the person has a health and safety duty as a PCBU, the person fails to comply with that duty and the failure causes the death of an individual. There is, therefore, no requirement for the person to have “caused” the death nor disregarded their “knowledge” that the conduct was likely to cause the death.
An officer of a PCBU may also be found guilty of a “crime” or “simple offence” where the PCBU’s conduct that constitutes the failure is attributable to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance.
The “crime” offence carries maximum penalties of 20 years imprisonment plus a penalty of $5 million for an individual and $10 million for a body corporate, whereas the “simple offence” carries maximum penalties of 10 years imprisonment plus a penalty of $2.5 million for an individual and $5 million for a body corporate.
The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 (Vic Bill) was passed by the Victorian Parliament on 26 November 2019 and is expected to come into effect on a day to be proclaimed or, at the latest, 1 July 2020. The Vic Bill amends the Occupational Health and Safety Act 2004 (VIC) (Vic Act) to include the offence of “workplace manslaughter”.
The Vic Bill provides that a person (including an officer) must not engage in conduct that is negligent, involves a breach of an occupational health and safety duty under the Vic Act and causes the death of a person. Conduct is negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances and involves a high risk of death or serious illness or injury.
Maximum penalties for workplace manslaughter are 100,000 penalty units (currently $16,522,000) for a body corporate and imprisonment for 20 years for an individual. However, the Victorian Government has also recently introduced legislation to increase this maximum penalty from 20 to 25 years imprisonment.
South Australia, New South Wales and Tasmania
As stated above, currently there are no specific industrial manslaughter laws in South Australia, New South Wales or Tasmania. However, employers can be prosecuted for workplace fatalities under general workplace safety laws and penalties can be imposed of up to $3 million or imprisonment for up to 5 years.
What should my business be doing now to prepare for manslaughter laws?
The aftermath of any serious workplace safety incident can be challenging but in the case of a workplace fatality can also have long-lasting effects on the deceased person’s family, colleagues and the business’ reputation.
With no completed prosecutions under industrial manslaughter laws in any jurisdiction, there is no guidance to date as to how these laws will be applied in practice.
We therefore recommend businesses take the following steps to encourage a culture of safety compliance with a view to preventing incidents from occurring:
- Review and update (as necessary) your organisation’s work health and safety policies and procedures to ensure compliance with the applicable safety legislation;
- Undertake a safety audit of your workplace practices, controls and systems to identify any potential hazards or risks to safety;
- Conduct a formal review of all safety systems and controls currently in place and ensure they are fully effective;
- Conduct training sessions and provide information to workers, managers and officers on a regular basis (and especially where there have been operational changes) to ensure everyone is aware of their safety obligations and to update management on any new laws;
- Ensure that all new workers undergo a proper induction concerning any relevant safety matters;
- Prepare, collate and keep up to date records on work health and safety matters and incidents and review those records to identify any trends and areas of risk;
- Review workplace health and safety leadership and culture to ensure any alleged negligent conduct is not permitted or condoned by the company or its culture;
- Review the insurance arrangements for the company and its officers and ensure there is appropriate coverage; and
- Take proactive steps to identify, assess and eliminate (or at the least minimise) risks and hazards to the health and safety of workers and other persons in the workplace.
If you would like to know more about these laws and how they will affect your business, please contact a member of our national group.
This article was written by Clare Raimondo, Partner and Jessica Nicholls, Senior Associate