There have been major developments involving industrial manslaughter laws across Australia:
- Queensland: On 27 November 2019 the mines Minister announced he will introduce new legislation to extend Queensland’s industrial manslaughter offences to the mining and quarry industries.
- Victoria and the Northern Territory: Overnight on 26 November 2019 the Victorian parliament passed industrial manslaughter legislation, and the Northern Territory parliament followed suit on 27 November 2019.
If found guilty of industrial manslaughter employers and contractors will face millions in fines and individuals (senior officers in Queensland and officers in Victoria and the Northern Territory) will face imprisonment.
In short employers and contractors should act to:
- identify their officers who will face new liability under industrial manslaughter laws for breaches resulting in fatalities;
- ensure they, and their officers, understand their work health safety duties and the liabilities they face under the new and proposed offences; and
- review existing and consider introducing new work health safety controls and management systems to comply with their ongoing duties.
Read on for more details.
Queensland
Following the deaths of 5 mining workers and 2 quarry workers in the last 18 months, the Minister for Natural Resources, Mines and Energy in Queensland announced on 27 November 2019 that the government will introduce industrial manslaughter offences to the mining and quarry sectors.
The Minister said the proposed legislation will give workers in mining and quarry workplaces the “same protections” conveyed by the existing industrial manslaughter offences that apply to other Queensland workplaces.
The existing offences under the Work Health Safety Act 2011 (Queensland WHS Act) were introduced in October 2017 following the death of four visitors to the Dreamworld theme park and two workers at the Eagle Farm racecourse in 2016.
At the time, Queensland joined the ACT as the only State or Territory to have dedicated industrial manslaughter offences.
Under these provisions, outside the mining and quarry sectors, a person conducting a business or undertaking (PCBU) in Queensland or a senior officer of the PCBU commits an offence if:
- a worker dies in the course of carrying out work for the business or undertaking (or is injured and later dies);
- the conduct of the PCBU or the senior officer causes the death; and
- the PCBU or the senior officer was negligent about causing the death of the worker by the conduct.
The definition of “senior officer” is broad, and means:
- if the PCBU is a corporation, an executive officer, being a person who is concerned with, or takes part in, the corporation’s management; or
- otherwise, the holder of an executive position in relation to the PCBU who makes, or takes part in making, decisions affecting all, or a substantial part, of the PCBU’s functions.
Individuals guilty of industrial manslaughter under the Queensland WHS Act face up to 20 years imprisonment, and corporate offenders will face fines of up to $10 million.
Based on the Minister’s announcement, employers and contractors in the mining and quarry industries should expect to face the same liability and penalties for these offences.
Victoria
Victoria introduced workplace manslaughter offences to the Occupational Health and Safety Act 2004 (Victoria OHS Act) overnight on 26 November 2019.
Organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations) and officers will be criminally liable if their conduct:
- is negligent;
- constitutes a breach of an applicable duty under the Victoria OHS Act; and
- causes the death of another person.
Conduct will be negligent under the Victoria OHS Act if it involves:
- as prescribed by the act: a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in; and
- a high risk of death, serious injury or serious illness.
“Officer” is defined in the Victoria OHS Act by reference to the Commonwealth Corporations Act and may include:
- individuals at the highest level of the organisation with the power and resources to improve safety;
- directors and people who participate in making decisions that affect a substantial part of the organisation’s business; and
- individuals who have the capacity to affect significantly the organisation’s financial standing.
Individuals guilty of workplace manslaughter under the Victoria OHS Act will face up to 20 years in prison, and corporate offenders will face fines of up to $16.5 million.
Northern Territory
The Northern Territory introduced industrial manslaughter offences to the Work Health and Safety (National Uniform Legislation) Act 2011 (Northern Territory WHS Act) overnight on 27 November 2019.
Previously individuals, but not corporations, could be charged with manslaughter for causing a workplace death under the Northern Territory Criminal Code.
The amendments to the Northern Territory WHS Act create industrial manslaughter offences for corporations and individuals, which will be committed if they:
- have a health and safety duty;
- intentionally engage in conduct which breaches the health and safety duty;
- by doing so, cause the death to an individual to whom it is owed; and
- are reckless or negligent about the conduct in breaching the duty and causing the death.
On 27 November 2019 the amending bill was passed with some amendments, including to specify that the individuals who will be criminally liable for industrial manslaughter will be limited to officers.
The definition of “Officers” in the Northern Territory reflects the approach in Victoria.
Individuals guilty of industrial manslaughter under the Northern Territory WHS Act will face life in prison, reflecting the penalty under the Northern Territory Criminal Code. Corporate offenders will face fines of over $10 million.
What Should you Do?
Queensland mining and quarry employers and contractors should expect the current industrial manslaughter offences in the Queensland WHS Act to apply to them next year and take the steps below.
All employers and contractors in Queensland, Victoria the Northern Territory and the ACT should:
- identify their officers who face liability under the industrial manslaughter offences;
- ensure their officers understand their work health safety duties and the liabilities they face under the industrial manslaughter offences; and
- review existing and consider introducing new work health safety controls and management systems to comply with their ongoing duties.
