This article was written by Nicholas Beech.
Alignment on penalties hides major differences between laws states and territories are passing. Industrial manslaughter offences are outcome-based offences, triggered by an event – a workplace death. This is different to existing risk-based offences – where liability comes from conduct exposing someone to risk. How risks are identified and controlled will remain key issues in responding to the new laws. National employers will need to update policies, legal compliance systems and documents.
The disharmony of industrial manslaughter laws
If Western Australia’s proposed industrial manslaughter offences become law, the maximum prison and monetary penalties would be in line with the punishment in jurisdictions with similar laws. But behind the press-friendly headline, the uniformity ends.
It is a curious state of affairs for a relatively new offence.
The emergence of differing regimes among the states and territories unquestionably means increased complexity and expense navigating occupational health and safety systems for any organisation operating nationally. But safety - not simplicity – is the standard by which these laws will be judged. So where to start for an employer who is committed to safety improvement and navigating these changes?
The state(s) of play
Industrial manslaughter currently exists in the ACT, Queensland, Victoria and the Northern Territory.
The ACT made industrial manslaughter an offence back in 2003. In Queensland in 2016, two construction site deaths, followed by four high-profile fatalities at the Dreamworld theme park brought national attention to the issue. The state introduced a workplace manslaughter offence the following year. Victoria’s and the NT’s legislation passed in November 2019.
Proposed laws are before Western Australia’s parliament to introduce two offences – a ‘crime’ offence and a ‘simple’ offence.
There has been unsuccessful attempts to introduce industrial manslaughter laws in South Australia and Tasmania don’t look like they will. The Coalition Government has previously stated it doesn’t believe federal industrial manslaughter laws are required.
The present Liberal New South Wales government will not be introducing industrial manslaughter laws and instead proposes to provide clarity, by way of insertion of a curious ‘drafting note’ into its present Work Health and Safety laws, that when a person dies at a workplace, it may constitute manslaughter under the State’s Crimes Act.
Many of the jurisdictions that have introduced or are proposing to introduce industrial manslaughter laws say they are following the recommendation of the 2018 federal review (conducted at state WHS ministers’ request) that examined progress in harmonising workplace safety laws. The review recommended the model WHS Act be amended to include a uniform industrial manslaughter offence that addressed community concerns and the limitations of the criminal law and which enhanced and maintained harmonisation of WHS laws.
All worthy aims. But what has unfolded is a fragmented implementation of laws that lacks uniformity and spirit of harmony. The introduction of the laws has been described as a distraction from the harmonised model WHS laws and ‘a fissure which puts at risk the collaborative approach’ of a harmonised system. Goals other than consistency have lead the charge to provide criminally enhanced consequences for the worst examples of corporate or individual behaviour that causes the death of workers.
The law says…
In most jurisdictions, the offence of industrial manslaughter is committed when ‘negligent’ conduct causes the death of a worker.
In Victoria, it has been made clear that the focus on whether a corporate employer has committed the offence is on its conduct. In practical terms, this means that such an employer may avoid being found guilty solely because of the conduct of a ‘rogue’ employee, agent or officer who acted contrary to steps taken or things provided or directed by the employer.
Results in brief
In NSW, companies and their officers will need to ensure that policies offering indemnity for WHS fines are not renewed and that no new policies are entered into. It will also be necessary for a watchful eye to be kept on the status of this reform in other states and territories.
Officers of employers can also be charged. Who is liable within an organisation differs between the laws, although there is commonality - each jurisdiction looks at an individual’s decision-making capacity within the organisation to determine if they’re senior enough to warrant prosecution - meaning each case will depend on the facts and circumstances. Western Australia and the Northern Territory omit partners in a partnership. Victoria and Queensland explicitly include them. The ACT doesn’t explicitly say but would likely capture partnership owners as decision-makers.
Two-tiered laws in the West
There are three big differences between Western Australia’s proposed legislation and that already in force elsewhere.
The first is the plan to create not one but two offences – a more serious crime offence where someone acts with knowing disregard for life, and less serious simple offence where death occurs as a result of a breach of WHS duty. The concept of two-tiered manslaughter does not exist elsewhere in our legal system.
Secondly, the test applied to the crime offence is unique and will be difficult to prove – the prosecutor will have to show the employer knew that their actions were likely to cause death. The setting of this incredibly high burden is deliberate and may only see a prosecution every 5 years.
Because of this and the peculiarities of the Western Australian legal system, the simple offence will be prosecuted in the Magistrates’ Court and not require proof of any knowledge elements. It has been described as an alternative offence - so that in the case when a crime offence is not proven the accused may still be convicted of the ‘lesser’ industrial manslaughter charge (and face a multi-million dollar monetary penalty).
Lastly, unlike in other jurisdictions, for an officer of the employer to be held separately responsible for an offence in Western Australia, additional elements of the offences must be proven, including that the employer’s conduct was ‘attributable to any neglect on the part of the officer’ or it was engaged in with the officer’s ‘consent or connivance’. This ‘derivative’ application of responsibility to an officer mirrors the existing unique approach under Western Australia’s occupational, health and safety laws.
The outcome is now the trigger, but preparation still the key
At their foundation, the industrial manslaughter offences are outcome-based offences – i.e. the offence is triggered by a specific event – a workplace death. This is new as most of the existing WHS offences are risk-based in relation to conduct that exposes a person to a risk of death. These existing offences can be proven in the absence of a death, serious injury or even an incident. The key elements behind the risk based offences are well known and much has been written, by legislators, regulators and the courts that provides guidance on what concepts such as ‘reasonably practicable’ and ‘due diligence’ mean. This helps organisations know exactly what they have to do to comply with their duties and most of their safety management systems will be built around these concepts.
The way risks have been identified and controlled will remain key issues in responding to the new laws.
It’s negligence, but criminal
Although concepts such as ‘negligence’ have long histories and established meaning in civil jurisdictions, there is less consistency in the criminal regime, particularly as it applies in the WHS space.
The legislators have offered some guidance on what conduct will constitute ‘negligence’ for the purposes of industrial manslaughter offences. Under the laws in Victoria, Queensland, the ACT and NT, conduct is ‘negligent’ and warrants criminal punishment if it:
- involves a high degree of the risk of death; and
- falls short of the standard of care that a reasonable person would exercise in the circumstances.
Although this definition of ‘negligence’ reflects the common law and some statutory tests for manslaughter by criminal negligence, we are yet to see guidance material from regulators on what this means for WHS and the first prosecution of an industrial manslaughter offence is only just underway in Queensland.
In the two Territories, reckless conduct can also constitute the grounds for the offence of causing death or of causing serious harm to a worker. Apart from Western Australia, this very high threshold does not appear anywhere else.
Defences – easy to state but …
There is a degree of harmony when it comes to defences to a charge of industrial manslaughter. In Victoria, the NT and ACT, all of the defences available to a person charged with manslaughter under the common law or other legislation, such as mistake of fact, extraordinary emergency and insanity can be raised in response to an industrial manslaughter charge. Although not stated in Western Australia, this is likely to be the position there too. Queensland allows many of those defences but not ‘accident’. It will be interesting to see just how these defences will be pursued and how effective they will be.
What does it mean?
Unquestionably, industrial manslaughter offences, with their variable definitions, inconsistent applications and defences, and potential overlap with existing offences will create challenges to organisations seeking to meet WHS duties and achieve safe workplaces.
To navigate the separate tests, national employers will need to devote resources to updating legal compliance systems and documents. However, the existing systems most organisations have will be solid foundations on which to build another floor to accommodate and address the peculiar aspects of the industrial manslaughter laws.
It has been observed that determining a breach of industrial manslaughter laws should involve an assessment of whether there is a failure by an organisation or individual to create a ‘culture of compliance’ in respect of safety. It will likely require a holistic examination and documentation of an organisation’s behaviours and actions that demonstrate a culture of safety awareness and compliance in respect to a broad range of safety issues.
While we wait for some formal guidance and the dust to settle, it is an ideal time to check on these fundamentals of a robust culture of compliance:
- Board knowledge and involvement – appropriate information flows to board members about safety issues and risks and responses;
- Managerial oversight – there are established safety risk committees and groups operated by senior personnel who scrutinise the daily operation and effectiveness of the organisation’s safety systems;
- Risk and issue identification, understanding and controls – appropriate systems are in place to identify risks, communicate knowledge about those risks throughout the organisation and implement controls that can be monitored and verified;
- Proactive approach to safety – the organisation’s financial and other resource allocation decisions reflect a focus on the prevention of incidents and unsafe actions;
- Incident investigation – protocols are available and followed to detect risk patterns and early warning signs of potential fatalities;
- Good records are kept of the systems, actions and training.
The laws might not be in harmony, but the approach to safety in the workplace can always be.
- Alignment on penalties hides major differences between the laws states and territories are passing.
- Industrial manslaughter offences are outcome-based offences, triggered by an event – a workplace death. This is different to existing risk-based offences – where liability comes from conduct exposing someone to risk.
- How risks are identified and controlled will remain key issues in responding to the new laws.
- National employers will need to update policies, legal compliance systems and documents.
 Safe Work Australia, ‘Review of the Model Work Health and Safety Laws’ (Final Report, December 2018) 23.
 Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2020, 948 (Bill Johnston, Minister for Mines and Petroleum; Energy; Industrial Relations).
 See for example, Worksafe Queensland, ‘Best Practice Review of Workplace Health and Safety Queensland’ (Final Report, 3 July 2017) 112; Explanatory Memorandum, Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) 7.