What you need to know
Both Victoria and the Northern Territory have very recently passed industrial manslaughter laws, and Western Australia has now also proposed similar new laws. NSW has proposed amendments to confirm the general criminal law of manslaughter will apply rather than introduce any new provisions, but proposes to amend its "category one" offence.
The new Victorian and NT laws:
- include offences that apply to negligent conduct by persons, including an employer and its officers or self-employed persons which causes the death of an employee or member of the public;
- for Victoria, include maximum fines of about $16.5 million for a body corporate and 20 years' imprisonment for individuals. For the NT, include maximum penalties of imprisonment for life for an individual, and about $10.2 million for a body corporate;
- provide no statutory limitation period to bring proceedings for workplace manslaughter offences as against an employer and/or its officers and self-employed persons. However, expressly under the NT laws, limitation periods do apply for alternative offenc5 milles to industrial manslaughter if the proceedings for industrial manslaughter were not commenced within the applicable limitation period for the alternative offence; and
- may have extra territorial application.
The proposed WA law will:
- include two levels of offences (labelled "crime" and "simple offence") that apply to conduct by a PCBU that causes the death of an individual; and
- provide for fines of $10 million for body corporates, and for individuals 20 years' imprisonment, and a fine of $5 million or $2.5 million respectively for the "simple offence".
The proposed NSW amendments will:
- confirm that the general criminal law of manslaughter will apply, with imprisonment of up to 25 years;
- amend the most serious "category one" offence to provide for breach due to "gross negligence" in addition to "recklessness" effectively lowering the threshold for the offence; and
- provide for increases in penalties in line with CPI movements.
What you need to do
Mindful of the relatively short time until these laws come into effect (by 1 July 2020 for Victoria), affected organisations should now:
- Raise awareness about these new laws.
- Review your current safety management systems to ensure they are legally compliant, manage fatality risks appropriately, and are being implemented for all workers including contractors.
- Consider whether the safety culture within your business supports the systems in place to manage its fatality risks (including psychosocial hazards and occupational illnesses that may lead to a risk of death).
- Ensure that officers in your business are supported to discharge their safety obligations.
Why is this relevant now?
Both Victoria and the Northern Territory have recently passed industrial manslaughter laws.
Western Australia has now also proposed similar new laws. NSW has proposed to amend its WHS laws to confirm that the general criminal law on manslaughter will apply, but will strengthen the most serious "Category one" offence provisions to provide for "gross negligence or recklessness", amongst other amendments to implement the recommendations of the 2018 National Review of the Model WHS Laws.
This means that four of the eight Australian States and Territories now have or propose industrial manslaughter offences as follows:
|
Nature of offence |
who it applies to |
maximum penalties |
VIC
|
Negligent conduct of a person which constitutes a breach of an applicable duty they owe to that person or that the entity owes to another person and causes the death of that other person
|
Bodies corporate and applicable entities including unincorporated bodies and associations and partnerships |
100,000 penalty units (presently a fine of about $16.5 million) for a body corporate
|
Officers of an applicable entity or other persons (who are not a volunteer or employees)
|
20 years' imprisonment
|
| NT |
Intentionally engages in conduct that breaches their health and safety duty and causes the death of an individual to whom that duty was owed, and is reckless or negligent about the conduct breaching their safety duty
|
Individuals |
Imprisonment for life
|
| Bodies corporate |
65,000 penalty units (presently a fine of about $10.2 million) |
| WA* |
PCBU engages in conduct that fails to comply with a health and safety duty which causes the death of an individual, and the conduct is engaged in knowing that it is likely to cause the death of an individual and in disregard of that likelihood (called a "crime" offence) |
PCBUs |
Individuals – 20 years' imprisonment and a fine of $5 million
Bodies corporate – fine of $10 million
|
| Officers of PCBUs – where the PCBU's conduct is attributable to the officer's neglect, or engaged in with the officer's consent or connivance and the officer knew that the PCBU's conduct was likely to cause the death of an individual and acted in disregard of that likelihood |
20 years' imprisonment and a fine of $5 million |
| PCBU fails to comply with a health and safety duty and the failure causes the death of an individual (called a "simple offence") |
PCBUs |
Individuals – 10 years' imprisonment and a fine of $2.5 million
Bodies corporate – a fine of $5 million
|
| Officers of PCBUs - where the PCBU's conduct is attributable to the officer's neglect, or with the officer's consent or connivance |
10 years' imprisonment and a fine of $2.5 million |
| NSW* |
Crimes Act 1900 (NSW) manslaughter provisions apply*
(Amendments also proposed to Category 1 offence to provide for "gross negligence" or "recklessness")
|
Under Crimes Act provisions, primarily individuals |
25 years' imprisonment |
| ACT^ |
Reckless or negligent conduct of an employer or senior officer causing serious harm to the worker |
Employers and senior officers |
2,000 penalty units ($1.62 million for corporations; $320,000 for individuals), 20 years' imprisonment, or both |
| QLD^ |
Negligent conduct that injures or causes the death of a worker |
Persons conducting business or undertaking |
For individuals – 20 years' imprisonment
For a body corporate, fines up to 100,00 penalty units (presently up to $13.3 million)
|
| Senior officers |
20 years' imprisonment |
* Proposed laws at Bill stage only
^ Laws already in place
The laws for the NT come into effect on a date to be proclaimed, and for Victoria, also on a date to be proclaimed or 1 July 2020.
The Victorian safety regulator will be expected to issue charges under the new provisions as soon as possible. The Victorian Government also recently announced a $10 million package to bolster WorkSafe Victoria's investigative and prosecutorial capabilities and family support function in light of the Bill.
The NT safety regulator may bring proceedings for industrial manslaughter only with the consent of the Director of Public Prosecutions. A person can request the DPP to bring a prosecution no more than 12 months after the occurrence of the relevant act.
The passage of the Western Australian and NSW Bills should be closely monitored.
The new offences in Victoria and NT
Key matters of interest for each of the new Victorian and NT laws are:
|
Victoria |
nt |
Offence status
|
Indictable
(Not heard and determined summarily)
|
Indictable
(Not strict liability, except in respect of the WHS duty element)
|
| Crown immunity |
No |
No |
| Exclusions |
Yes – volunteers and employees (who are not officers)
|
Yes – volunteers
|
| Statute of limitations |
No - two year limitation period does not apply to new provisions |
No - two year limitation period does not apply to new provisions, except for alternative offences prosecuted |
| Conduct |
Negligent conduct (involving a great falling short of the standard of care that would be taken by a reasonable person), where there is a high risk of death, serious injury or illness
Conduct can include acts or omissions
For body corporates the standard of care is that of a reasonable body corporate in the circumstances
|
Intentional conduct
Conduct is "reckless" or "negligent" as to breach of a WHS duty and causing death of an individual
|
| Causation |
Burden on prosecution to prove:
- the accused's conduct was negligent
- the accused breached a duty owed under the OHS Act; and
- it was the accused's negligence that caused the death
(Common law test of causation will apply – the conduct must have contributed significantly to or been a substantial and operating cause of the death)
|
Burden on prosecution to prove:
- the accused owed a healthy and safety duty;
- the accused intentionally engaged in conduct that breaches their duty and causes the death of an individual to whom it was owed; and
- the accused was reckless or negligent about the conduct breaching their duty
|
| Body corporate liability |
May be direct (conduct of the body corporate) or indirect (conduct of its employees and officers) |
|
| Defences |
Common law defences for manslaughter will apply |
Criminal Code defences will apply |
Extra territorial application
(Conduct outside the jurisdiction causing a death inside; and conduct inside the jurisdiction causing a death outside)
|
Implied |
Implied |
| Coercive power of investigators and inspectors |
Unchanged |
Unchanged |
The Victorian laws
The Victorian Bill as passed creates a new Part 5A of the Occupational Health and Safety Act 2004 (Vic) comprising sections 39A to 39G. Section 39G is the offence provision.
It provides for two offences of workplace manslaughter and excludes volunteers and employees.
The NT Laws
The NT Bill inserts a new Division 6 for industrial manslaughter into the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Section 34B is the offence provision applying to a 'person'.
Other changes
The new Victorian workplace manslaughter offences necessitate additional legislative changes. The most significant of these is that the maximum fine for an officer of a body corporate for the corresponding manslaughter offence increases from 2,400 penalty units to 10,000 penalty units where a company commits workplace manslaughter and it can be attributed to an officer failing to exercise reasonable care under sections 144 or 145 of the OHS Act.
Likely impact for national industrial manslaughter laws?
Given the staggered and varied approach by the States and Territories on industrial manslaughter laws, the idea of uniform laws (as recommended by in the Final Report of the National Review of the Model WHS Laws in February 2019) has seemingly passed by. At least in respect of industrial manslaughter, there will be inconsistency for businesses operating nationally. Laws for industrial manslaughter, adopting somewhat different approaches, have been enacted in Queensland, Victoria and the NT, with the ACT already having such laws in place, and WA proposing to introduce them. With NSW and the Commonwealth confirming that specific industrial manslaughter laws will not be adopted, only Tasmania and SA remain without such laws – and they are not being actively considered in these States (see our Safety Matters Alert – July 2019). The proposal for Safe Work Australia to develop industrial manslaughter provisions in the model WHS Act may have limited effect given these developments.
A 2018 SafeWork Australia Report also revealed that the number of Australian worker fatalities decreased by 62% from its recent peak in 2007 to 2018. While the Report does not explore why this is the case, it is an encouraging development and has occurred in the absence of any successful workplace manslaughter prosecutions to date.
Industrial manslaughter has become a matter of national interest in recent times, particular following a series of high profile and tragic workplace deaths. It is yet to be seen if the advent of industrial manslaughter laws across the States and Territories will have the intended preventative and deterrent effects.
Authors: Trent Sebbens, Partner; Paul Fowler, Counsel.
