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