2020 update: industrial manslaughter

The introduction of industrial manslaughter legislation is the biggest shift in work health and safety (WHS) policy and regulation since the (partial) harmonisation of WHS laws in the first part of the 2010s. But is the move to industrial manslaughter necessary? And most importantly, will it reduce the number of workplace fatalities? Lawyers SAM JACKSON, MADELEINE ARMSTRONG and SAM GRAY set out the case and provide a state-by-state, 2020 update.

Queensland and the Australian Capital Territory (ACT) and Northern Territory (NT) all have industrial manslaughter offences as part of their WHS regulatory regime, while Victoria’s “workplace manslaughter” offences will commence this year and Western Australia’s (WA) Parliament is currently considering a similar proposal. Debate over whether industrial manslaughter laws are necessary re-entered the national consciousness following the tragic Eagle Farm Race Course and Dreamworld incidents in Queensland in 2016. Some suggested the penalties for breaching WHS laws no longer reflected societal expectations and lacked the necessary deterrent or retributive effect. Significant pressure also fell on WHS regulators, who were often criticised for failing to appropriately investigate and prosecute companies and senior officers following workplace fatalities.

Heightened public awareness and a broad-based campaign has ultimately led to the introduction of industrial manslaughter offences in a number of jurisdictions. However, the approach has not been uniform. States and territories have imposed different tests and thresholds for the offences, resulting in yet another move away from WHS harmonisation. But the question remains, in circumstances where most jurisdictions moved to introduce “culpability offences” with substantial penalties into their WHS laws in the past 20 years (eg, offences requiring proof of “recklessness”), is the move to industrial manslaughter necessary? And most importantly, will it reduce the number of workplace fatalities?

Workplace fatalities: what does the data say?

There has been a steady decline in the number of workplace fatalities since national workplace fatality statistics started to be recorded in 2003. Safe Work Australia data shows the highest number of fatalities was 310 in 2007 and the lowest was 144 in 2018 (see Figure 1). This trend is likely contributed to by safer workplace practices, the implementation of the model WHS laws, increased prosecution and enforcement activity in some jurisdictions, the move away from manufacturing and agriculture to an economy focused on the services industry and increased automation.

Figure 1. Source: Safe Work Australia, ‘Work-related traumatic injury fatalities Australia’ 2018, 6, 8.

Victoria is the only jurisdiction to specifically state that the purpose of its workplace manslaughter offences is to reduce workplace fatalities. However, it is unclear whether this can be met given the experience in other jurisdictions. For example, the number of workplace fatalities in the ACT has remained constant since the introduction of industrial manslaughter. Queensland, however, saw a decline in workplace fatalities in the year following the introduction of the offences. But this decline is consistent with the broader trend in other jurisdictions and advanced economies across the world where workplace deaths have declined at similar rates without the offence.

Recent developments

There have been no recent changes to WHS laws relating to industrial manslaughter in the Commonwealth, New South Wales, South Australia or Tasmania. Each of those jurisdictions claim existing laws are sufficient to protect workers’ health and safety.

ACT

The ACT was the first jurisdiction to introduce industrial manslaughter in March 2004. The offences sit within the Crimes Act 1900 (ACT) and do not apply to workers. There have been no prosecutions in the ACT since 2004. However, as is the case in all jurisdictions, workers can still be charged with traditional criminal manslaughter — one such prosecution is currently underway.

NT

The NT introduced industrial manslaughter in November 2019. The offence sits within the Workplace Health and Safety (National Uniform Legislation) Act 2011 (NT) and commenced operation on 1 February 2020. It is an offence for persons conducting a business or undertaking (PCBU) or an officer (excluding volunteers) to intentionally engage in conduct that causes the death of an individual owed a duty, where the PCBU or officer was “reckless” or “negligent” in causing the death. Maximum penalties are life imprisonment for an individual or a fine of $10.075 million for a body corporate.

Queensland

Queensland introduced industrial manslaughter in 2017. The offences sit within the Work Health and Safety Act 2011 (Qld), as well as the Electrical Safety Act 2002 (Qld) and the Safety in Recreational Water Activities Act 2011 (Qld). The first WHS prosecution began in 2019, with further hearings expected this year. In February 2020, Queensland introduced a Bill to align mining and resources safety laws with WHS legislation. If passed, the amendments will insert industrial manslaughter offences into a number of Queensland mining and resources safety laws.

Victoria

Victoria introduced industrial manslaughter in November 2019, creating two offences in the Occupational Health and Safety Act 2004 (Vic): one for “duty-holders” and one for “officers”. The offences begin operating on 1 July 2020 (unless proclaimed earlier). They impose a modified “criminal negligence” standard. They require proof of a breach of an existing duty and conduct that constitutes “a great falling short” of the expected standard by the duty holder, in circumstances where that conduct caused a death at a workplace. Maximum penalties are 20 years’ imprisonment for an individual or $16.22 million for a body corporate. However, on 4 February 2020 the Victorian Government announced it would introduce laws to increase the maximum penalty for manslaughter offences, including workplace manslaughter, to 25 years’ imprisonment.

WA

WA recently introduced the Work Health and Safety Bill 2019 (WA), seeking to implement a modified version of the model WHS laws, including offences of industrial manslaughter. If the Bill passes, the first offence (Crime) will apply to PCBUs and officers. It is committed where a duty holder engages in conduct that causes the death of an individual, the conduct constitutes a failure to comply with their health and safety duty, and the person engaged in the conduct knowing it was likely to cause death, in disregard of that likelihood. The Simple offence also applies to PCBUs and officers and is committed where a duty holder fails to comply with a duty and the failure causes the death of an individual. Maximum penalties for the Crime offence are 20 years’ imprisonment and $5 million for an individual or $10 million for a body corporate. Maximum penalties for the Simple offence are 10 years’ imprisonment and $2.5 million for an individual or $5 million for a body corporate.

National snapshot

What’s next?

Except in WA, where debate is ongoing, the introduction of further industrial manslaughter offences now appears on hold. The success or otherwise of the new offences will be difficult to measure against a backdrop of a falling fatality rate and likely low prosecution rates for the new offences, as already seen with existing industrial manslaughter and “culpability” offences. What is clear, though, is that the introduction of industrial manslaughter serves as a stark reminder for organisations and their officers to satisfy themselves that appropriate systems and procedures are in place to identify, assess and manage the organisation’s critical risks, particularly those that may lead to a fatality. The laws also reinforce the importance of having effective systems in place for the reporting and resolution of hazards and risks, particularly those identified through prior incidents and near misses.

Sam Jackson is a Special Counsel, Madeleine Armstrong is an Associate and Sam Gray is a Lawyer at Sparke Helmore Lawyers, an NSCA Foundation partner.

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Case study: Could this have been industrial manslaughter?

In February 2017, Maria Jackson, a Victorian scrap metal business owner, was driving a forklift (unlicensed) when a worker died after falling from a skip bin being carried three metres in the air on the tynes of the forklift. In December 2018, she pleaded guilty to failing to comply with her duty under the OHS Act (Vic) as a self-employed person, not to expose others to risks. Ms Jackson also pleaded guilty to the offence of recklessly engaging in conduct that places a person in danger of serious injury. Ms Jackson was sentenced to six months’ imprisonment and a $10,000 fine.

Had the incident occurred after workplace manslaughter laws begin in Victoria, Ms Jackson may have been charged with the offence as a self-employed person. It would ultimately be up to a jury to decide whether her conduct involved a great falling short of the standard of care that a reasonable person would have exercised in the circumstances, and whether her conduct caused the death of the worker. But given Ms Jackson was aware of the unstable state of the bin, failed to restrain it and made a deliberate decision to use the forklift without a licence, these circumstances may have satisfied the elements of workplace manslaughter.

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