Industrial Manslaughter Laws across Australia

Though not widely publicised many workers lose their lives in workplace incidents in Australia. Some of these incidents made the headlines for the wrong reasons and the community outrage at these deaths and prompted government intervention to assist in placing something in the legislation to curb the number of clearly avoidable deaths.

During this intervention there have been many discussions as to how to reduce the deaths with one proposal to introduce a level of charge where the person as opposed to the business was found reckless and negligent ad as a result the person or persons died. This was the introduction of the industrial manslaughter legislation. Safe Work Australia continues to provide the Model Laws for the harmonised legislation across Australia. A proposal was made to add Industrial Manslaughter however the DRIS Recommendation was to implement Model Law Review Recommendation 23a only and include ‘Gross Negligence’ as a fault element in the Category 1 offence.

The initial outcome of this has been an uptake in the industrial manslaughter legislation. Slowly each state has taken on the hard question as to if they would introduce this law where persons in accountable positions could be jailed or face personal fines. The insurance loophole has also been closed for these instances where it is unlawful to rely on an insurance company paying the fine should a person be convicted.

What is industrial manslaughter?

Industrial manslaughter is generally understood to be an offence where the Person Conducting a Business or Undertaking (PCBU), knew or should have known, that doing or not doing something about a particular workplace situation would create a significant risk of serious harm to a person. If this breach of duty resulted in the death or a person this would establish the criteria to move the Regulator to seek to prosecute the person or persons responsible, for industrial manslaughter.

Cases in Industrial Manslaughter

Two example industrial manslaughter prosecutions

In June 2020, Brisbane Auto Recycling Pty Ltd was found to have committed industrial manslaughter and ordered to pay a fine in the sum of $3 million. The directors were also sentenced to 10 months’ imprisonment (suspended for 20 months) for the category 1 offence of reckless conduct.
In May 2021, Western Australia recorded its first conviction for industrial manslaughter against Mark Withers, director of MT Sheds (WA) Pty Ltd, who was sentenced to 26 months’ imprisonment.

Industrial Manslaughter Laws across the states and territories

ACT – The maximum penalty is 20 years’ imprisonment for an individual and a fine of approximately $17M for a company.
QLD – The maximum penalty is 20 years’ imprisonment for an individual or a fine of approximately $10M for a company.
NSW – The maximum penalty is 25 years’ imprisonment for an individual and fines of approximately $10M for a company.
VIC – The maximum penalty is 25 years’ imprisonment for an individual or a fine of approximately $18M for a company.
WA – The maximum penalty is 20 years’ imprisonment and fines of approximately $5M for an individual and a fine of approximately $10M for a company.
NT – The maximum penalty is imprisonment for life for an individual and a fine of approximately $10M for companies.
SA – (Considering feedback on the Draft Bill) The maximum penalty will be 20 years imprisonment for individuals and $15 million for body corporates.
TAS – Industrial manslaughter is not currently an offence in Tasmania. There are no Bills before the Tasmanian Parliament to introduce an industrial manslaughter offence.

Officers’ duties and Industrial Manslaughter

With the introduction of this Industrial Manslaughter provision into the WHS legislation across Australia we will how the new industrial manslaughter offences are being trialed in the courts. Businesses and the individual liability of company directors is being closely monitored understanding the risk of significant penalties being imposed for failures to comply with WHS duties. It is critical that persons who control all or a significant part of a business remain vigilant and ensure that the health and safety of workers is in focus when making decisions where a worker may be put at risk.

Though there are slight inconsistencies in the Industrial Manslaughter provision into the WHS legislation across Australia, people in positions of responsibility should be aware of their duty under the provisions of due diligence being specifically,

(a) to acquire and keep up-to-date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

(f) to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).

If you are interested in our WHS Consultancy services, you can contact David, Andrew or Mark to discuss your Health and Safety Issues.

We have qualified and certified Safety Consultants that can assist you in your business and offer a range of WHS consulting services along with general and specific health and safety training courses.

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Industrial Manslaughter Laws across Australia