NSCA Foundation

National industrial manslaughter offence likely?


By Susan Withycombe-Taperell, Senior Associate, and Jennifer Williams, Lawyer
Monday, 10 June, 2019


National industrial manslaughter offence likely?

Following two major reviews, a national industrial manslaughter offence is back on the agenda. So what is the likelihood of a national approach to industrial manslaughter? We review the status quo.

In March 2018, the Senate referred the framework surrounding the prevention, investigation and prosecution of industrial deaths to the Senate Education and Employment References Committee (Committee) for inquiry and report.

In October 2018, the Committee tabled its report ‘They Never Came Home — the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia’ (the Report). The 135-page Report made 34 recommendations about how industrial deaths are investigated and dealt with in Australia, with most recommendations directed towards Safe Work Australia (SWA) working with each jurisdiction to amend the work health and safety (WHS) framework.

The federal government released its response in December 2018, titled ‘Australian Government Response: They Never Came Home’ (Response). The government acknowledged “there are problems with how the WHS framework is being implemented… and [there is] significant room for improvement in how WHS laws are enforced…”

The timing of the Report and Response coincided with an independent review of the model WHS laws commissioned by SWA (on behalf of the Commonwealth, State and Territory ministers responsible for WHS) and led by independent reviewer, Marie Boland (Boland Review).

The Boland Review’s scope was broader than the Committee’s inquiry and Report. However, they share some of the following key recommendations:

  • Introducing a national industrial manslaughter offence.
  • Prohibiting insurance for WHS fines and creating an offence to enter into such a contract.
  • Increasing WHS penalties to reflect the increase in consumer price index since 2011.
  • Introducing provisions allowing for cross-border information gathering and sharing by regulators.
  • Amending the category 1 offence under the WHS Act (the most serious offence under the harmonised WHS Act, excluding industrial manslaughter) to include that a duty holder commits a category 1 offence if they are reckless and/or is grossly negligent in exposing an individual to serious harm or death.
  • Introducing a greater focus on, and regulation for the management of, psychological health, including expanding incident notification categories.
  • Increasing union officials’ powers to enter worksites to assist HSRs without an entry permit under the Fair Work Act or other industrial law.
     

The Boland Report has been provided to the WHS ministers to consider and a response is expected to be tabled later in 2019. A consultation regulation impact statement and a call for submissions on the Boland Report should be released later this year.

Industrial manslaughter

The introduction of a nationally consistent industrial manslaughter offence has been one of the most notable recommendations made in both reports, and has been a popular agenda item in many jurisdictions for more than 25 years. The ACT was the first jurisdiction to implement this when the Crimes (Industrial Manslaughter) Amendment Act 2002 commenced in 2004.

More recently, an industrial manslaughter offence was introduced into the Queensland WHS Act in response to the high-profile fatalities at Eagle Farm and Dreamworld in 2016.

The implications of the industrial manslaughter offence are yet to be seen as, to date, no charges have been publicly laid under the industrial manslaughter laws.

What’s the status of industrial manslaughter provisions in Australia?

Jurisdiction Applicable What you need to know
Queensland Yes Introduced in October 2017.
ACT Yes Introduced in 2003.
Victoria No Proposal by Victorian ALP if re-elected to introduce an industrial manslaughter offence. Has been re-elected but no steps taken yet.
WA No 2018 — State Government considering introduction of industrial manslaughter amendment.
Tasmania No Leading up to the March 2018 election, Tasmanian ALP promised to introduce an industrial manslaughter offence.
NSW No NSW ALP has pledged to introduce the country's toughest industrial manslaughter laws, but lost the state election.
South Australia No Two Bills introduced, without success.
Northern Territory No Recent recommendation for introduction, but no steps taken yet.
Commonwealth No Senate Education and Employment Review Committee — recommendation (October 2018). Coalition opposed.

It’s worth noting that manslaughter is still available to a prosecutor as a charge against a PCBU or an individual in all jurisdictions.

Recently, regulators have been prosecuting existing laws more aggressively, and sentences of increasing severity are being handed down by the courts. For example, in the recent prosecutions against Maria Jackson in Victoria and Gary Lavin in Queensland, both individuals were imprisoned. This represents the first non-suspended custodial sentences for a breach under the WHS laws (that we are aware of), despite imprisonment being an available sentencing option to the courts for a number of decades.

In addition to the above, in all jurisdictions, a charge of manslaughter is available in relation to a workplace incident. For example, SafeWork NSW’s compliance policy and prosecution guidelines, which outline the matters considered when determining whether to prosecute, stipulate that where there has been a work-related death, the police and SafeWork NSW should consider whether the circumstances justify a charge of manslaughter under the Crimes Act 1900 (Cth). At the time of writing, a trial is being heard in the NSW District Court whereby two persons have been charged with involuntary manslaughter offences arising in connection with a workplace incident that occurred in May 2010.

Conclusion

While these reports had differing purposes — one to review how adequately the current WHS laws deal with industrial deaths, the other to review the effectiveness of the harmonised WHS law — they provide similar recommendations. Of note is the recommendation for a national industrial manslaughter offence to be introduced. Thirty Australian workers have already been killed at work between January and early April 2019. This is a considerable number for the first quarter of the year and is likely to be considered by the relevant WHS ministers in Australia in determining whether to implement any of the recommendations.
 

The following summarises the key recommendations in the Report and the federal government’s response.
Senate committee recommendation Federal government response Comments
Updating the model WHS framework to cover precarious and non-standing working arrangements (including labour hire). Noted The broad coverage provisions of the model WHS laws were noted including the definition of ‘worker’ already recognising contemporary work arrangements that extend beyond employer–employee relationships.
Developing a policy to formalise collaboration and evidence sharing between WHS regulators and law enforcement agencies during investigations following an industrial death. Supports  
Amending model WHS laws to enable cross-border collaboration and assistance between WHS regulators and law enforcement agencies, including sharing evidence and other relevant information. Supports in principle This is already being conducted, however greater collaboration could be provided.
Introducing a national industrial manslaughter offence. Noted only

The federal government referred to the ACT’s introduction of industrial manslaughter laws in 2004 and highlighted that no-one has been prosecuted under that offence to date, nor has there been any evidence that workplace deaths have been reduced due to the introduction of these laws.

The federal government considers the current WHS model, together with the criminal manslaughter laws, as adequate — provided it is applied appropriately.
Unions, injured workers and their families be able to commence proceedings against PCBUs. Not supported Criminal proceedings are complex and require expertise in the relevant laws, procedural requirements and court proceedings. The federal government noted a potential conflict of interest arising as proceedings may be initiated to advance industrial or other interests.
Reviewing the level of monetary penalties in the model WHS laws. Supports in principle This was supported in principle, particularly as the penalties have not increased since 2011. If the penalty was expressed as a penalty unit, the maximum penalty for a category 1 offence would now be approximately $5,727,000.
Vetoing corporations that repeatedly breach WHS obligations and cause death or serious injury from being awarded Commonwealth, State or Territory Government contracts. Noted only The federal government is already undertaking steps to monitor companies in this respect and encourages State and Territory Governments to do the same.
Establishing a register of directors with WHS convictions to prevent ‘phoenix’ companies. Supports  
Amending WHS laws to make it unlawful to insure against fines, investigation costs and defence costs for alleged breaches of WHS laws. Supports in principle  

Image credit: ©stock.adobe.com/au/prathaan

NSCA Foundation is a member based, non-profit organisation working together with members to improve workplace health and safety throughout Australia. For more information and membership details click here
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