We have seen significant developments in the implementation and application of industrial manslaughter laws, particularly in Victoria and Queensland, in the last couple of months. Two significant developments in industrial manslaughter laws include:
11 June 2020: First prosecution of an offence of industrial manslaughter was finalised in the Brisbane District Court when a defendant company was sentenced — a fine of $3 million was imposed. Two company directors were also sentenced for reckless conduct and received terms of suspended imprisonment.
As the company pleaded guilty to the offence, the allegations were not defended at trial nor were the elements of the offence scrutinised by a judge and jury. Although the decision does provide insight into sentencing of a company for the offence, the offence remains untested at trial. This matter is discussed in more detail below.
1 July 2020: Offence of workplace manslaughter came into effect in Victoria.
The Victorian legislation attracts the highest financial penalty nationwide, with a maximum fine of $16.5 million for employers, whereas prison terms for company officers of up to 20 years are the same as other jurisdictions (Queensland and the Australian Capital Territory [ACT]).
Unique to Victoria is that the offence applies to anyone who is owed a duty under the Occupational Health and Safety Act 2004 (OHS Act), which extends to members of the public. The duty in Queensland and the ACT is limited to “workers”.
It will be interesting to monitor the application of the legislation in Victoria.
Brisbane Auto Recycling Pty Ltd (BAR) operated an auto wrecking business. On 17 May 2019, a worker, Mr Barry Willis, was struck by a reversing forklift being operated by another worker. Mr Willis died the following week from the injuries he sustained. The incident was captured on CCTV and viewed by the sentencing Judge, His Honour Judge Rafter SC.
BAR was the first company to be prosecuted for the offence of industrial manslaughter under s 34C of the Work Health and Safety Act 2011 (Qld) (Act). BAR was convicted and fined $3 million.
Two directors of BAR, Mr Asadullah Husseini and Mr Mohammad Ali Jan Karimi (directors) were each charged with an offence of reckless conduct under s 31 of the Act — not with industrial manslaughter. Although not the first prosecution in Queensland for an offence of reckless conduct, it is an offence that is infrequently prosecuted in this jurisdiction. Each director was convicted and sentenced to 10 months’ imprisonment, wholly suspended for 20 months, meaning they were not sentenced to serve actual custody.
Industrial manslaughter and reckless conduct both attract maximum penalties of imprisonment — 20 years’ and 5 years’ respectively — as well as significant fines. Both offences are defined in the Act as a “crime”, which means the offence must be prosecuted on indictment in the District Court. Guilty pleas were entered at the presentation of the indictment and the matters were listed for sentence. This means that no pre-trial arguments were made about the sufficiency or admissibility of the evidence and no judicial consideration was required. If the matter had been defended at trial, a jury would have determined whether BAR was guilty or not guilty.
From what has been published about the incident, including the judgment, it appears that pleading guilty was an entirely appropriate course given the evidence against the company was overwhelming.
At sentence BAR was convicted and fined $3 million. The determination of the fine was a matter of judicial discretion exercised in accordance with established sentencing principles in Queensland.
The maximum penalty for industrial manslaughter is $10 million; no minimum penalty is prescribed. Given this was the first instance in which a company was convicted of such an offence following a guilty plea, there was no yardstick in Queensland against which to compare the offending conduct. The maximum fine would likely be imposed for the most egregious offending in which multiple fatalities occurred. In the given circumstances of this case, a fine that amounts to nearly one-third of the maximum penalty is not a surprising outcome.
The period of offending was nearly 18 months, during which no safety systems were in place at the workplace. By their guilty pleas, the directors accepted that they knew of the risk to the safety of their workers, but consciously disregarded that risk.
As indicated above, however, the unique circumstances of the matter put the directors in a position where a penalty of actual imprisonment was available. Readers are encouraged to review the decision to make an informed assessment of the facts and circumstances for themselves.
While debate continues about the efficacy of these new laws, and their place in the general safety and broader regulatory landscape, especially when it comes to deterrence — a debate that as we see it is set to continue for some time yet — the fact remains the proceedings are entirely in the criminal realm and can result in severe consequences.
With respect to industrial manslaughter and the recent Queensland prosecution, given the elements of the offence were not challenged in the BAR case, and the strength of the prosecution case was not tested in open court, the offence is yet to be fully and judicially scrutinised at trial. As for the sentence imposed on BAR, it may serve as a useful precedent in future cases in Queensland where a person conducting a business or undertaking pleads guilty to a charge of industrial manslaughter. It remains to be seen how frequently this charge will be prosecuted in a workplace accident involving a fatality.
The maximum penalty in Victoria will be significantly higher as compared to that in Queensland ($16.5 million and $10 million respectively). Additionally, the duty in Victoria is owed to others (for example, visitors, bystanders or customers). Whereas in Queensland the offence can only apply to a fatality of a worker.
Only time will tell whether these aspects of the Victorian legislation will serve as an additional deterrent, so companies and officers ensure they fulfil their duties.
Jackson Inglis is a Partner and Eric Halden is an Associate at Sparke Helmore Lawyers, an NSCA Foundation partner.
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