For the latest update on this topic, see our latest article: Understanding industrial manslaughter laws: Where is Australia at in 2024?
At a glance
- Four Australian states and territories have passed new industrial manslaughter legislation
- Western Australia is projected to shortly follow suit
As of the 5th of December 2019, 152 Australian employees have lost their life at their place of work[1]. Not to mention, high profile and significantly publicised incidents, including the case at Eagle Farm Race Course, which saw two employees, lose their lives from a falling concrete slab, which was then followed by the Dreamworld event, which saw four patron fatalities as a result of a malfunctioning amusement ride only three weeks later. It is no surprise that there has been extensive discussion and calls for reform in Australia in the area of workplace health and safety, as well as for the introduction of industrial manslaughter legislation.
As a result, four Australian states and territories (ACT, QLD, NT and VIC) have passed industrial manslaughter legislation, with Western Australia projected to shortly follow suit. Earlier this year, former Executive Director of SafeWork SA also undertook a comprehensive national review of Australia’s model Workplace Health and Safety laws and made 34 recommendations, including the introduction of new offences surrounding gross negligence and industrial manslaughter[2].
What is industrial manslaughter?
Manslaughter is the unlawful killing of another human being, and each Australian State defines it slightly differently. Industrial manslaughter, however, allows a corporation to be held liable for the death of a person caused by that corporation’s employees within the scope of their work, and is currently legislated for in the ACT, Queensland and the NT, with VIC legislation to come into effect on 1st July 2020.
History of industrial manslaughter in Australia
In 2002, the ACT was the first Australian jurisdiction to introduce industrial manslaughter legislation, which came into effect after extensive union lobbying. However, this legislation sits completely outside the WHS legal framework and is in addition to the category 1-3 offences under the model WHS laws. Despite introducing these laws well before other Australian jurisdictions, no prosecutions have been undertaken. In 2018 proceedings began in relation to an incident on a Canberra construction site, however the matter is still pending and applicable penalties if any, are still yet to be determined[3].
Queensland followed in late 2017, after two major high profile incidents led to an independent review in relation to Workplace Health and Safety in Queensland. The State then introduced amendments to the WHS Act 2011 Qld3. These amendments explicitly excluded a lack of intent as a defence against any related charges.
The first prosecution under these new industrial manslaughter laws in Queensland commenced on 25 October 2019 and is still ongoing. Brisbane Auto Recycling Pty Ltd has been charged with industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld). There is potential for a fine of up to AU$10 million for the body corporate. Additionally both company directors could be fined up to AU$600,000 each, or jailed for up to five years, if convicted of reckless conduct (Category 1 offence under section 31 of the Act)[4].
Other prosecutions have also taken place in Queensland; however proceedings began prior to the formalisation of industrial legislation in the State. In February 2019, a director in Queensland was sentenced to 12 months in prison for reckless conduct, which contributed to the death of a roofer. His company was also fined $1 million[5]. Furthermore, while the laws are not yet passed in Victoria, a Victorian woman, aged 72, was fined $10,000 and sentenced to six months gaol in January this year, after pleading guilty to recklessly endangering a person at her business who died from fatal head injuries. Similarly, in Western Australia, a magistrate’s court fined a head contractor $38,000 after a 17 year old fell to his death on a construction site – an amount that some feel does not reflect the seriousness of the issue, particularly as discussions continue into imposing imprisonment of up to 20 years and a fine of up to $10 million under industrial manslaughter offences[6].
Evidently, despite ongoing discussions and national recommendations for industrial manslaughter, cases of this kind are clearly rare and thus attract varying penalties, fines and sentences across different states and territories. Interestingly, while corporate criminal responsibility was covered under the Criminal Code Act 1995 (Cth) well before industrial manslaughter laws came into effect, and allowed for corporations to be held liable for criminal acts or omissions undertaken by their employees during the scope of their work[7],the Criminal Code does not explicitly include manslaughter under the same division. The reason for this being is that industrial manslaughter is currently a State and Territory provision rather than a Federal provision. In addition, current State legislation relating to manslaughter do not have any explicit inclusions to hold corporations responsible for their employees’ acts or omissions (with the exception of the ACT). The Federal Government has confirmed that it will not be adopting specific industrial manslaughter laws.
Where is the rest of Australia at?
