As reported in an earlier article on this blog, Marie Boland (former Executive Director of SafeWork SA) undertook the first review of the model Work Health and Safety (WHS) laws and delivered her report on 25 February 2019 (Report).

The Report concluded that the model WHS laws are operating as intended and the “three-tier framework” (the model Work Health and Safety (WHS) Act, model WHS regulations and the model Codes) was effective and widely supported as being flexible enough to accommodate the changing nature of work.

Of the 34 recommendations in the report, the recommendations concerning the introduction of an industrial manslaughter offence and addition of ‘gross negligence’ to the category 1 offence, were the subject of our previous article.

The national WHS Ministers are expected to respond to the Report’s recommendations later this year.

In addition to the Report’s recommendation, the Senate (Education and Employment References Committee) inquiry into industrial deaths report from October 2018 (Senate inquiry report) also recommended the introduction of an industrial manslaughter offence.  The Senate inquiry report states that the committee were of the “…strong view that there needs to be a nationally consistent industrial manslaughter provision introduced into the model WHS legislation” and that the Queensland model was “…worthy of consideration” for drafting purposes.

In that context it is useful to briefly review the current position around Australia with respect to industrial manslaughter offences.  Queensland’s industrial manslaughter offence, contained in the WHS Act, attracts maximum penalties of 20 years’ imprisonment and a fine of over $10 million (100,000 penalty units) for body corporates.  The ACT provisions are contained in the Crimes Act 1900 (ACT) and provide for a maximum penalty of 20 years’ imprisonment and a fine of $320,000 for individuals or $1.6 million for employers.

The current Victorian government announced in 2018 that it will introduce an industrial manslaughter offence with employers potentially facing up to $16 million fines and individuals up to 20 years jail.  It recently announced a new Implementation Taskforce, whose members will come from victims’ families and representatives of unions and business, to consult on the proposed industrial manslaughter legislation.

The Northern Territory government is considering the recommendations contained in the recently released Tim Lyons’ report regarding the best practice review of WHS (delivered on 10 January 2019) which recommended the introduction of an industrial manslaughter offence with maximum custodial sentence of life imprisonment for an individual and a fine of over $10 million for a body corporate.

The Western Australian Premier Mark McGowan commented in August 2018 that industrial manslaughter laws “are worthwhile” and that consultation was required as to the model that would be introduced.  No Bill has been introduced by the WA government.

The South Australian parliament has rejected the introduction of this offence multiple times (most recently in 2016).  While a private member’s bill was introduced into the Western Australian Legislative Council in 2017 it has not proceeded through to the Legislative Assembly.  The current Tasmanian and New South Wales governments have not made any recent public comment on the issue.

Various Australian states and territories are moving towards considering or implementing industrial manslaughter provisions and substantial penalties.  It continues to be very important for all employers to ensure they are aware of and comply with their obligations as the enforcement and compliance implications may be significant for individuals and organisations.

The author acknowledges the contribution of Ross Watkins and Nadeem Hekmat to this article.

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