Is industrial manslaughter back on the agenda in NSW
30 March 2023
What you need to know:
- The recently elected NSW Labor Government attempted to introduce industrial manslaughter legislation in 2021. It is likely to make further attempts to pass these laws now that it is back in power.
- Almost all Australian jurisdictions now have industrial manslaughter legislation in force, with only the Commonwealth, NSW, South Australia and Tasmania yet to pass such laws.
What you need to do:
- Closely follow developments in this area. Change may happen quickly.
- Remain vigilant in identifying hazards and assessing and controlling risks in your workplace.
- Encourage a proactive safety culture with your organisation.
What is the current NSW legal landscape?
Although there are currently no industrial manslaughter laws in NSW, the Work Health and Safety Act 2011 already contains provisions akin to the offence of industrial manslaughter in other jurisdictions.
In particular, a Category 1 offence in NSW criminalises 'Gross negligence or reckless conduct' which is the same type of conduct addressed by the previously proposed industrial manslaughter provisions.
One key difference between the existing Category 1 offence and any new industrial manslaughter laws is likely to be the penalties. A contravention of a Category 1 offence in NSW currently carries a maximum penalty of 5 years' imprisonment for an individual or a person conducting a business or undertaking (PCBU), and a maximum penalty of $3,721,686* for a body corporate.
In 2021, a Private Member's Bill titled the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 was tabled by the then Labor Opposition. The Bill proposed maximum penalties of 25 years' imprisonment for an individual, and $10,747,000* for a body corporate.
The 2021 Bill passed the Legislative Council, but subsequently lapsed in 2022. It is anticipated that any new industrial manslaughter Bill will propose the same significant penalties as contained in the 2021 Bill.
Another key difference between a Category 1 offence in NSW and any new industrial manslaughter offence is likely to be the fact that a Category 1 prosecution can occur even if no person has actually been injured or killed. The current Category 1 provisions apply where a risk of death or serious injury arising from gross negligence or recklessness occurs. By contrast, the previously proposed industrial manslaughter laws are focussed on the consequence and will only be triggered following a fatality.
Industrial manslaughter in other Australian jurisdictions
Five of the nine jurisdictions in Australia already have industrial manslaughter laws in place, with the Commonwealth and Tasmania being the only other jurisdictions apart from NSW yet to introduce such laws. South Australia introduced their Work Health and Safety (Industrial Manslaughter) Bill late last year.
| Jurisdiction |
Industrial manslaughter law |
Maximum penalties (as at: 29 March 2023) |
|---|---|---|
| Commonwealth |
No law in force |
N/A |
| NSW | No law in force | N/A |
| TAS | No law in force | N/A |
| SA | Law being considered in parliament | Individual: 20 years' imprisonment Body corporate: $15,000,000 |
| ACT | Law in force | Individual: 20 years' imprisonment Body corporate: $16,500,000 |
| NT | Law in force | Individual: life imprisonment Body corporate: $10,530,000 |
| QLD | Law in force | Individual: 20 years' imprisonment Body corporate: $10,000,000 |
| VIC | Law in force | Individual: 25 years' imprisonment Body corporate: $18,492,000 |
| WA | Law in force | Individual: 20 years' imprisonment and $5,000,000 Body corporate: $10,000,000 |
What does this mean for employers?
While any new industrial manslaughter laws in NSW will not change the nature of any safety duties currently owed by employers, the significant penalties that could apply following a workplace death should heighten the importance of taking a proactive approach to meeting such duties.
*Figures based on penalty unit value as at 29 March 2023.
Authors: Scarlet Reid, Partner; Angus Mullins, Graduate.
