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On 26 May 2018, Victorian Premier Daniel Andrews announced the Labor Party plans to introduce "industrial manslaughter" offences in Victoria if re-elected. The announcement follows a campaign by Victorian unions calling for tougher laws to prevent workplace fatalities, particularly following the recent introduction of similar offences in Queensland.

The announcement is significant for employers and senior managers in Victoria because of:

  • the potential substantial penalties for those found guilty of the new offences—substantial fines and substantial period of imprisonment
  • the apparent fundamental shift in the approach to occupational health and safety (OHS) regulation in Victoria
  • the relevant standard that employers and individuals will be judged against in determining whether the offences have been committed remains unclear and may be substantially lower than one of the existing offences that provides for imprisonment of individuals (which currently requires "recklessness"), and
  • the offences appear likely to apply more widely than those already introduced in Queensland, including when a member of the public has died.

Significant maximum penalties

Premier Andrews announced that the new offences will attract maximum penalties of 20 years' imprisonment for individuals or a fine of up to approximately $16 million for corporations. Each of these penalties is significantly higher than the existing maximum penalties under the Occupational Health and Safety Act 2004 (OHS Act) for reckless endangerment—currently set at five years' imprisonment or a fine of approximately $285,000 for individuals and a fine of approximately $3.2 million for corporations.

Fundamental shift in approach to regulation—risk versus outcome

Although there are few details regarding the proposal, based on the recent experience in Queensland, this announcement signals a fundamental shift in the approach to OHS regulation in Victoria—at least in relation to workplace fatalities.

Although the existing offences under the OHS Act are likely to remain in place following any amendments, the announcement suggests the new industrial manslaughter offences will seek to impose criminal sanctions on employers and individuals where their negligence causes the death of an employee, other worker or member of the public.

This is in contrast with the current approach to OHS regulation in Victoria (and other Australian jurisdictions), where criminal liability is imposed when a duty holder fails to take all reasonably practicable steps to control a risk to health and safety. Under this approach, the ultimate outcome of an alleged breach of the OHS Act (which in many cases may be death or serious injury), has only limited relevance to the Court's determination of whether the duty has been met.

Applicable standard—recklessness or negligence?

The term "negligence" in the announcement appears to draw parallels to the recently commenced industrial manslaughter offences in Queensland, where the regulator must prove:

  • a worker died in the course of carrying out work for the accused or later died from injuries suffered in the course of carrying out work for the accused
  • the accused's conduct caused the death, and
  • the accused was negligent about causing the death of the worker.

What remains unclear in Queensland and Victoria is whether the principles of criminal or civil negligence will apply to determining if the offences have been committed. Civil negligence refers to the situation where a duty holder falls short of the standard of care that a reasonable person would be expected to exercise in the circumstances. The higher standard of criminal negligence requires proof of conduct, which falls so far short of the relevant standard that the conduct merits criminal punishment.

However, what is clear is that the concept of negligence, regardless of whether it is criminal or civil negligence, is a lower standard than that currently required by the "reckless endangerment" offence contained in s 32 of the OHS Act. This offence is the only way in which an individual may be imprisoned (other than the offence of assaulting a WorkSafe inspector) and attracts a maximum penalty for corporations of more than double the maximum penalty that can be imposed on employers in the majority of prosecutions.

To prove an employer or individual was reckless, a regulator must prove "foresight on the part of the offender that the conduct (to be) engaged in would probably have the consequence that another person at the workplace was placed, or could be placed, in danger of serious injury" (Orbit Drilling Pty Ltd v R [2012] VSCA 82, [24]) and that the offender displayed "indifference as to whether or not those consequences occur" (R v Nuri [1990] RV 641, 643). That is, the regulator must prove the accused knew their act or omission would have or could have placed a person at risk of serious injury and continued regardless.

If similar wording to the Queensland legislation is adopted in Victoria, the standard the regulator will need to prove before significant penalties can be imposed (including imprisonment) may be significantly reduced.

Application of duty

In his announcement, Premier Andrews noted that the new offences will "cover a visiting supplier...a routine maintenance worker or three innocent people walking down a busy street".

These comments suggest the Victorian offences may have a wider application than the Queensland offences, which only apply to workers and not to members of the public. The comments appear to be in response to the media, union and public scrutiny following the penalties issued to Grocon (Victoria Street) Pty Ltd and Aussie Signs Pty Ltd when three members of the public were tragically killed at a building site in 2013, after being crushed by part of a hoarding wall that collapsed.

Next steps

No timeframe was provided for the introduction of a Bill to Parliament (the Victorian Liberal Party has not formally indicated its position regarding the proposed reforms as at the date of this article). However, as further details are announced in the lead up to the 2018 Victorian State election, we will provide updates and insights about the potential impact of these changes to OHS regulation.

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