Following our recent updates regarding the introduction of workplace manslaughter laws in Victoria (see our blog article here) and proposed legislative changes in New South Wales (see our blog article here), there have now been further developments, with industrial manslaughter laws being passed in the Northern Territory (NT) and proposed in Western Australia as part of a mirror work health and safety (WHS) Bill.
Industrial manslaughter laws passed in NT
In September 2019, the NT government introduced an Amendment Bill to introduce a new offence of industrial manslaughter to the NT WHS Act. The Bill was passed on 27 November 2019 and will commence on the day fixed by Gazette notice.
The Bill provides for a new offence of reckless or negligent conduct causing the death of a person to whom a duty is owed, and applies to organisations and senior officers.
The offence carries a maximum penalty of life imprisonment for senior officers and $10 million for organisations.
The limitations period for WHS offences does not apply to the industrial manslaughter offence.
The regulator is required to obtain the consent of the Department of Public Prosecutions before commencing proceedings, and the Bill also provides a mechanism for families and other interested parties affected by a fatality to request the regulator to initiate a prosecution and obtain information about the status of the investigation and any potential prosecution.
If a Court is not satisfied beyond reasonable doubt that a person is guilty of the industrial manslaughter offence, the Court can find the person guilty of the alternative offence, and there is no limitations period for such a finding.
Western Australia introduces mirror WHS Bill
After being flagged in the State budget more than seven years ago, Western Australia finally introduced a mirror Work Health and Safety Bill 2019 to parliament on 27 November 2019.
As with the national model WHS laws, the Bill includes a primary duty of care requiring persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings, due diligence duties for officers, WHS consultation and issue resolution provisions and protections against discrimination.
The Bill also introduces two industrial manslaughter offences. These offences apply to PCBUs who fail to comply with their health and safety duties where that failure causes the death of an individual. Where a PCBU commits this offence, officers will also be liable where the PCBU’s conduct is attributable to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance.
There are two categories of offences provided for – the first category carries a maximum penalty of 20 years’ jail and $5 million for officers, and $10 million for bodies corporate and applies where the PCBU or officer engages in the conduct knowing that it is likely to cause the death of an individual and in disregard of that likelihood. The second category applies where there has simply been a breach of duty (with no requirement to establish knowledge that the conduct was likely to cause a death) and carries a maximum penalty of 10 years’ jail and $2.5 million for officers, and $5 million for bodies corporate.
The proposed industrial manslaughter offences are different to the approaches that have been followed in other jurisdictions, including most recently Victoria (see our blog article here) and the NT (as set out above), in that they do not include a requirement for negligent conduct, but rather a failure to comply with a health and safety duty which causes a death. The proposed offences also carry significant monetary penalties for officers which have not been introduced in other jurisdictions.
Other key reforms included in the Bill, include prohibiting insurance against WHS fines, similar to what is proposed in New South Wales (see our blog article here), and which was recommended by the Marie Boland Report.
Further, the Bill introduces a specific duty of care for providers of WHS services, requiring them to take appropriate care to ensure, so far as is reasonably practicable, that the health and safety of persons isn’t put at risk by the provision of the service. A number of exceptions are provided for the definition of “WHS services”, including services provided by health and safety representatives, health and safety committees, emergency services and services covered by legal professional privilege. This duty of care only applies to services that are provided from one PCBU to another, and does not cover services provided internally to PCBU.
If passed, most of the WHS Bill will commence on a day fixed by proclamation.
In August 2019, when confirming the government’s plan to introduce industrial manslaughter laws, the Western Australian Industrial Relations Minister and Premier also announced an additional 24 full time equivalent staff to be allocated to WorkSafe WA, including an additional 21 inspectors.