FIRST QUEENSLAND INDUSTRIAL MANSLAUGHTER CASE UNDERWAY AS SIMILAR LEGISLATION INTRODUCED IN VICTORIA

First Queensland industrial manslaughter case underway as similar legislation introduced in Victoria

The first prosecution for industrial manslaughter in Queensland commences today with the first mention being heard at the Holland Park Magistrates Court.

Workplace Health and Safety Queensland commenced proceedings against Brisbane Auto Recycling Pty Ltd (Brisbane Auto Recycling) in relation to an incident in May this year where a worker was fatally crushed by a reversing forklift. Industrial manslaughter charges have been brought against Brisbane Auto Recycling and reckless conduct charges have been brought against two of its directors.

This Tuesday the Victorian Labor government introduced proposed industrial manslaughter laws through the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. On the same day, a worker was killed at an industrial accident in Ballarat after becoming trapped in machinery. 

 Potential changes to WHS Model Laws

 Last year, Safe Work Australia appointed Ms Marie Boland to provide an independent review into the operation of the model work health and safety laws (Model WHS Laws). In December 2018, the Review of the model WHS laws: Final Report (the Boland Report) was published.

The Boland report made 34 recommendations for reform, including the following:

• the introduction of a new corporate offence of industrial manslaughter for gross negligence causing death; and

• review and amendment of the penalties in the Model WHS Laws to bring them in line with consumer price indexing and inflation.

Currently, the Model WHS Laws impose a tiered penalty system for breaches of work health and safety duties. Engaging in conduct that exposes an individual to the risk of death, serious injury or illness while being reckless as to that risk attracts maximum fines of $300,000 for individuals and bodies corporate or $600,000 for officers or persons conducting a business or undertaking (PCBUs). These pecuniary penalties are in addition to potential maximum sentences of 5 years imprisonment. Except for Victoria and Western Australia, all Australian jurisdictions have adopted some form of the Model WHS Laws.

 Potential consequences for air operators

The introduction of industrial manslaughter provisions in various jurisdictions represents a move away from a uniform, consistent approach contemplated by the Model WHS Laws. Following the decision of the High Court in Work Health Authority v Outback Ballooning [2019] HCA 2, air operators will need to be particularly aware of the applicable State or Territory work health and safety laws in addition to Commonwealth laws on aviation safety. The effect of the Outback Ballooning decision is that operators may be liable for criminal sanctions under new industrial manslaughter provisions irrespective of their compliance with civil aviation safety regulations.

A brief summary of the current state of play in each Australian jurisdiction follows.

 Queensland

Industrial manslaughter laws were introduced in Queensland in 2017 and took the form of Part 2A of the Work Health and Safety Act 2011. Under this Act, charges of negligently causing the death of a worker can be laid against PCBUs or senior officers, attracting maximum penalties of 20 years imprisonment for individuals and 100,000 penalty units ($10 million) for bodies corporate. This is a departure from the gross negligence standard recommended by the Bolan Report, but it remains to be seen how the courts will interpret this provision.

 Australian Capital Territory

While industrial manslaughter laws have been part of the ACT’s work health and safety landscape since 2004, the first prosecution under these provisions didn’t occur until 2018. WorkSafe ACT commenced proceedings against Multiplex Constructions and RAR Cranes after a worker died on a building site in Canberra in 2016. These proceedings are currently before the courts.

The industrial manslaughter provisions penalise corporate employers and senior officers if they (or an employee) cause the death of a worker and the employer, officer or employee is:

• reckless about causing serious harm; or

• negligent about causing death.

These attract maximum sentences of 2,000 units ($320,000 for individuals or $1.6 million for corporations), maximum imprisonment for 20 years, or both. Media reports suggest that the ACT government is considering reviewing these provisions, but this has not been officially confirmed.

 Victoria

The draft Bill introduced on Tuesday includes the offence of industrial manslaughter for grossly negligent breaches of care causing death, with maximum penalties of 20 years imprisonment for individuals and 100,000 penalty units ($16.5 million) for corporations.

 Northern Territory

The Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 was introduced into the Northern Territory Parliament in September. The Bill introduces the highest maximum penalty for industrial manslaughter of all Australian jurisdictions with a potential sentence of life imprisonment for individuals. While this penalty is consistent with the Northern Territory’s general manslaughter offence, the threshold for establishing liability is lower. While liability is confined to duty of care breaches, the prosecuting authority need only establish negligence or recklessness as to the conduct (rather than negligence or recklessness as to causing death). The draft Bill has been referred to the Economic Policy Scrutiny Committee, which is expected to publish its report later this month.

 Western Australia

In August this year, the Western Australian government announced that it would introduce industrial manslaughter provisions as part of its work health and safety overhaul. Draft legislation has not been introduced and the form of these provisions is yet to be confirmed. However, media releases confirm that the draft bill will incorporate two classes of offences: a 20-year sentence for breaches of workplace safety rules causing death and a 10-year sentence for negligent behaviour. 

 South Australia

The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2019 was introduced to the Legislative Council in May this year. The draft Bill renders an employer (or an officer of the employer) liable for industrial manslaughter if a breach of that person’s duty of care causes the death of a person if the accused:

“knew, or ought reasonably to have known, or was recklessly indifferent as to – whether, the act or omission constituting the breach would create a substantial risk of serious harm to a person.”

The maximum penalties under this provision are 20 years imprisonment for individuals or $1 million for bodies corporate. However, the Bill provides a defence for conduct occurring in emergency situations.

 Tasmania, Federal Government and New South Wales

Tasmania, New South Wales and the Commonwealth are the only jurisdictions where there are no current or proposed industrial manslaughter offences. Earlier this month, the New South Wales government has specifically rejected the implementation of a manslaughter provision.