Industrial manslaughter: ACT worksite deaths soon punishable with extended imprisonment and significant fines

On 24 June 2021, the ACT Minister for Industrial Relations and Workplace Safety, Mick Gentleman introduced the Work Health and Safety Amendment Bill 2021.

The Bill is likely to pass the ACT Legislative Assembly later in the year and will significantly extend maximum penalties for industrial manslaughter, including:

• 20 years' imprisonment for individuals; and
• $16,500,000 fines for corporations.

Corporations or people who conduct a business or undertaking (PCBU) and their Officers will be liable under the amended offence if it is found they have:

• a health and safety duty as set out in the Work Health and Safety Act 2011 (ACT) (WHS Act);
• engaged in conduct (including by omission) which results in a breach of such a duty;
• the breach of that duty causes the death of a worker or another person, or causes an injury that later results in the death of a worker; and
• been reckless or negligent in causing the death.

The Bill will also transfer the offence provision from the Crimes Act 1900 (ACT) to the Work Health and Safety Act 2011 (ACT).

Model WHS recommendation rejected

The likely passage of the Bill is being powered by the Boland Review of the Model WHS laws.

The Review recommended that an offence of industrial manslaughter be included "where there is a gross deviation from a reasonable standard of care” by PCBUs and their employees, agents or officers which result in a workplace death.

In May 2021, the industrial manslaughter recommendation was considered by a meeting of work health and safety ministers from across Australia to consider proposals for model WHS laws.

The recommendation was supported by the Labor Governments of the Northern Territory, Queensland, Western Australia, Victoria and the ACT but did not receive the two-thirds majority required for inclusion. In any event, with the exception of the ACT (which appears poised to do so), these States have taken steps to include their own industrial manslaughter clauses into their relevant WHS legislation. The maximum term of imprisonment for industrial manslaughter ranges from 20 years to life imprisonment, and the maximum fine for corporations range from $10 million to $16.52 million in these jurisdictions.

The Coalition Governments of the Commonwealth, New South Wales, Tasmania and South Australia, have previously indicated their opposition to a model provision stating that current manslaughter offences already operate to cover this field and any additional manslaughter offences would exacerbate or duplicate investigative procedures in this space. However, in an attempt to ramp up the pressure on this issue, both the Greens in South Australia and Labor in New South Wales have sought to introduce non-government bills to their respective parliaments in recent times attempting to legislate on industrial manslaughter.

What this means for you

The Bill proposed by Minister Gentleman is showing there is a significant push by Labor Governments and the union movement to pass industrial manslaughter offences in all Australian jurisdictions, preferably in the form of a model term.

In the aftermath of a number of high-profile incidents in recent years, it is clear there is a concerted push from various stakeholders on this issue such that it is not a matter that looks like it will go away.

In light of this, PCBUs should consider themselves on notice. Accordingly, it will be critically important that you have in place rigorous health and safety protocols and procedures appropriate to your industry, which, amongst other things, clearly identifies potential hazards and risks, and outlines how these are to be managed, for example, by way of incident action plans, response procedures, and other compliance measures such as education and fostering a culture of safety that are continually reviewed.

If your business requires assistance with any work health and safety procedures or compliance issues, please reach out to the Workplace Relations, Employment and Safety team at Clayton Utz.