Proposed industrial manslaughter provisions to Work Health & Safety Act 2011 (ACT)

On 24 June 2021, the Work Health and Safety Amendment Bill 2021 (ACT) (Amendment Bill) was introduced into the ACT Legislative Assembly by the Minister for Industrial Relations and Workplace Safety, Mick Gentleman, to amend the current Work Health and Safety Act 2011 (ACT) (WHS Act) and other legislation, including the Crimes Act 1900 (ACT) (Crimes Act). 

Two key proposed amendments are the:

• introduction of an industrial manslaughter (IM) offence into the WHS Act, and
• removal of IM offences (employer and senior officer offence) from the Crimes Act.

What are the current ACT industrial manslaughter provisions?

Industrial manslaughter offences currently sit within the Crimes Act and provide that an employer or senior officer commits an IM offence where they negligently or recklessly cause the death of a worker in the course of the worker’s employment.

The maximum penalty for an IM offence for an employer is $1,620,000 and/or imprisonment for 20 years, where the employer is an individual. For a senior officer of an employer, the maximum penalty is $320,000 and/or imprisonment for 20 years. 

What is the scope of the proposed IM offence?

Under the Amendment Bill, a person conducting a business or undertaking (PCBU) or an officer commits an IM offence where:

• the person has a health and safety duty
• the person engages in conduct
• the conduct results in a breach of the health and safety duty
• the conduct causes the death of a worker or other person, and
• the person is reckless or negligent about causing the death of the worker or other person by the conduct.

An alternate verdict provision is included in the Amendment Bill, which provides that if the court is not satisfied beyond reasonable doubt that the defendant has committed the offence of IM, it may find the defendant guilty of an alternative offence (i.e. a Category 1 or 2 offence)—provided the defendant has been afforded procedural fairness in relation to that finding of guilt.

Importantly, the proposed IM offence is expressly excluded from the two-year limitation period for prosecutions under the WHS Act. Consequently, an offence for IM can be brought by the ACT WHS regulator at any time.

What are the maximum penalties for an IM offence?

The Amendment Bill proposes maximum penalties for the IM offence. For an individual PCBU (i.e. a sole trader) or an officer of a PCBU, the maximum penalty would be imprisonment for up to 20 years. For a body corporate, the maximum penalty would be $16,500,000.

Why is this happening?

Reasons for the proposed changes outlined in the Explanatory Memorandum (EM) to the Amendment Bill include:

• broadening the circumstances in which IM charges may be laid—including where conduct causes the death of a member of the public, a subcontractor, visitor, or employee of another employer

• ensuring the conduct of corporations and senior officers can be considered in the event of a worker death, particularly where there are systematic work safety failings, and

• realigning community expectations for WHS and accommodating all work arrangements.

The case for IM offences was discussed in the Safe Work Australia Review of the Model WHS Laws, which recommended the inclusion of an IM offence in the model WHS laws to address circumstances where there is a gross deviation from a reasonable standard of care that leads to a workplace death.

What are other Australian jurisdictions doing in relation to IM offences?

The Victorian, Queensland and the Northern Territory WHS regimes now all carry an IM offence.

On 5 May 2021, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (NSW) was introduced to the NSW Parliament including a proposed IM offence.

Western Australia recently enacted the Work Health and Safety Act 2020 (WA), which contains an IM offence—however, the substantive provision of this Act have not yet commenced, as the accompanying Work Health and Safety Regulations are yet to be finalised.

There is no IM offence under the Commonwealth WHS Act.

The Amendment Bill has not yet passed the ACT Legislative Assembly, meaning the IM offence will not come into effect until three months after the Amendment Bill’s assent date.

What should ACT organisations and officers do now?

Public and private sector organisations in the ACT, particularly sole traders in high risk industries, should consider reviewing their WHS management system arrangements to ensure that:

• policies and procedures are up to date

• workers have been trained

• reasonably foreseeable risks to health and safety have been identified, assessed, and eliminated or minimised so far as reasonably practicable, and

• control measures are monitored for effectiveness.

Senior managers across the ACT public and private sector should also ensure they are aware of their personal, positive, proactive WHS due diligence duties, and that they are taking steps to discharge that duty.

Consultation should occur on an ongoing basis with workers and contractors, and all organisations should ensure that they have effective reporting processes in place to continuously improve safety outcomes.