Industrial Manslaughter Laws In Australia.
Legal News & Analysis - Asia Pacific - Australia - Regulatory & Compliance
6 August, 2019
What you need to know
- Industrial manslaughter laws are currently in place in Queensland and the ACT.
- Industrial manslaughter laws are proposed for introduction in Victoria and the Northern Territory.
- The possible introduction of industrial manslaughter laws is being discussed in Western Australia.
- The Federal Coalition government has previously taken the position that specific industrial manslaughter laws are not required.
- It is unlikely that industrial manslaughter laws will be introduced in New South Wales, South Australia or Tasmania at this stage.
What you need to do
- Consider whether your organisation's WHS systems address these duties.
- Consider what information is (and should be) given to officers about these laws and what support may be necessary to assist officers to comply with their personal duties.
- Keep an eye out for legislative developments in jurisdictions in which your organisation conducts business, and stay up to date on how it could impact your organisation.
- Watch for government responses to the 2018 National Review of the Model WHS Laws. That review included a recommendation to amend the model WHS Act to provide for a new offence of industrial manslaughter.
- Consider making a submission to SafeWork Australia in response to its Consultation Regulation Impact Statement on the National Review's recommendations. Public submissions can be made until 5 August 2019.
What put industrial manslaughter on the national agenda?
High profile incidents in Queensland in 2016 were the catalyst for work health and safety reform in Queensland.
At Eagle Farm Race Course two workers were crushed to death by a toppling concrete slab. Three weeks later, an incident at Dreamworld resulted in four fatalities due to the failure of an amusement ride.
Following these incidents, the Queensland Government commissioned an independent Best Practice Review of Workplace Health and Safety Queensland. That review recommended the introduction of industrial manslaughter offences in the Queensland work health and safety legislation.
Industrial manslaughter has since become a matter of national interest.
Industrial manslaughter laws by jurisdiction
The ACT was the first state to enact an industrial manslaughter regime, although it strictly sits outside the WHS legal framework. This was introduced by the Crimes (Industrial Manslaughter) Act 2003 (ACT), which amended the Crimes Act 1900 (ACT) effective from 1 March 2004.
Until recently, there had not been any prosecutions under these provisions. In 2018, a prosecution was commenced against a crane driver in the context of an incident on a Canberra construction site. This matter is still on foot.
The Queensland industrial manslaughter laws were introduced in the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld), which amended the Work Health and Safety Act 2011 (Qld). These amendments took effect on 23 October 2017.
There have not yet been any prosecutions under these provisions.
There has been some talk about introducing industrial manslaughter laws in Western Australia.
Whilst there is no formal Western Australian Government statement on this issue, Industrial Relations Minister Bill Johnston was recently reported in the media as endorsing the position that industrial manslaughter be included in the State’s harmonised WHS legislation.
The Greens lobbied for industrial manslaughter laws to form part of the Criminal Code, introducing the Criminal Code Amendment (Industrial Manslaughter) Bill 2017 into Parliament two years ago. However, that Bill has not progressed passed the Legislative Council's second reading.
We will need to wait until later this year, when it is now anticipated that the Western Australian Government will release its draft Work Health and Safety Bill, to know whether such provisions will be included.
The Northern Territory Government is considering recommendations to introduce industrial manslaughter laws, but has not yet expressed a clear intention to do so.
Last year, the Northern Territory commissioned an independent report on the Best Practice Review of Workplace Health and Safety in the NT. The report was published in January of this year and recommends the introduction of industrial manslaughter offences in the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
On 31 July 2019, a media statement was released by the Northern Territory Government, which published the government's responses to the recommendations of the Best Practice Review. The media statement and responses confirmed that the government would create a new offence of industrial manslaughter in the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
Earlier this year, the Victorian Government established a Workplace Manslaughter Implementation Taskforce as a first step towards developing industrial manslaughter laws to be included in the Occupational Health and Safety Act 2004 (Vic).
An earlier attempt to introduce industrial manslaughter offences in Victoria via the Crimes (Workplace Deaths and Serious Injury) Bill 2001 was unsuccessful.
Commonwealth, New South Wales, South Australia, Tasmania
The only State governments not actively considering the introduction of industrial manslaughter laws are New South Wales, South Australia and Tasmania. The Federal Coalition government has previously taken the position that specific industrial manslaughter laws are not required.
Effects of industrial manslaughter laws on penalties
We can expect that industrial manslaughter laws will come with significant penalties.
In Queensland, the maximum penalties for an offence of industrial manslaughter are 20 years' imprisonment for an individual (no fine is available) or $10 million for a body corporate.
In the ACT, the maximum penalties are $320,000 for an individual, $1.62 million for a corporation and 20 years' imprisonment (or both in the case of individuals).
In Victoria, a media statement released by the Minister for Workplace Safety's office stated that "under the proposed new laws, employers will face fines of almost $16 million and individuals responsible for negligently causing death will be held to account and will face up to 20 years in jail".
In the Northern Territory, it is proposed that the industrial manslaughter laws will carry a maximum penalty of life imprisonment for an individual or a fine of up to $10 million for a body corporate.
For further information, please contact:
Julia Sutherland, Partner, Ashurst