LEGAL UPDATE

Industrial Manslaughter laws will soon be in place in all Australian jurisdictions

Authors: Greg Robertson & Sam Alexander-Prideaux

Introduction
Due to recent legislative reforms in New South Wales (“NSW”), South Australia, Tasmania, and the Commonwealth, industrial manslaughter will soon be an active offence in every Australian state and territory, and for employers covered by Commonwealth work health and safety laws.

What is industrial manslaughter and why is it important?
Industrial manslaughter is a serious offence, involving the death of a worker (or, in some states, another person) at work, in circumstances where a health and safety duty was owed to the worker.

The offence has been gradually introduced by states and territories over the past twenty years, in order to stem the deaths of workers at work in Australia. On average, over the last 5 years, 180 workers were killed each year at work in Australia.[1] Last year alone, 200 workers were killed at work.[2] The issue which industrial manslaughter laws are intended to remedy is therefore of an extremely serious and devastating nature.

Where is industrial manslaughter prohibited?
Turning to the history of industrial manslaughter laws in Australia, the regulation of industrial manslaughter has been achieved in a patchwork, gradual manner.  The Australian Capital Territory (from 2004) has long criminalised industrial manslaughter. Other states and territories, like Queensland (from 2017), Victoria (from 2020), the Northern Territory (from 2020) and Western Australia (from 2022) have also, within the last ten years, implemented industrial manslaughter offences.

More recently, there has been a flurry of recent legislative reform. As of 1 July this year, industrial manslaughter became a criminal offence in South Australia, and for Commonwealth employers and other bodies subject to the provisions of the Work Health and Safety Act 2011 (Cth).

Furthermore, following on from the successful passage of the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (NSW) on 20 June 2024, industrial manslaughter has just become an offence in NSW – Australia’s most populous state. The new offence is located in s 34C of the Work Health and Safety Act 2011 (NSW), and carries with it the highest monetary penalty for an industrial manslaughter offence in any Australian jurisdiction – at $20 million dollars, for a Corporation. The offence commenced operating on Monday, 16 September 2024.

Finally, just last week, Tasmania became the last Australian jurisdiction to criminalise industrial manslaughter. On 11 September 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (Tas) passed the upper house of Parliament, having already successfully passed the lower house of the Tasmanian Parliament on 21 June 2024. The new offence, to be contained in s 30A of the Work Health and Safety Act 2012 (Tas), will commence operation the day after the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (Tas) receives royal assent. This means that industrial manslaughter will soon be an active offence in every Australian jurisdiction: meaning that every employer, or person conducting a business or undertaking, will need to be aware of the serious potential consequences for committing industrial manslaughter.

What exactly does industrial manslaughter prohibit?
With the patchwork quilt of industrial manslaughter offences nearly complete, it is important to understand exactly what industrial manslaughter is. However, getting to the heart of what the offence proscribes is a more difficult task. Despite the criminalisation of industrial manslaughter in almost every Australian state and territory, the elements of the offence, and the penalties for contravening it, differ between states.

This is because there is no model industrial manslaughter clause in the model Work Health and Safety Bill (which, under Australia’s harmonised work health and safety system, most states and territories would ordinarily adopt). Because of this, there is some variance between the elements of the offence between states and territories.

Broadly, the elements of the offence of industrial manslaughter are satisfied where a person conducting a business or undertaking with a health and safety duty breaches that duty, resulting in the death of an employee or another person. However, the fault element, in particular, varies from state to state. So, for example, although some states require gross negligence (such as New South Wales),[3] in others, recklessness or negligence will do (such as in the Northern Territory).[4] In Tasmania, moreover, only negligence is required.[5] Further, although some jurisdictions require the relevant death to be the death of a worker to whom a health and safety duty is owed (such as in the Northern Territory),[6] other jurisdictions only require that a person is killed, in circumstances where a health and safety duty is owed, and there is recklessness and/or gross negligence towards the death of the other person (such as in the Australian Capital Territory and Queensland).[7] It is therefore vitally important that employers and other persons conducting a business or undertaking are aware of the specific elements of industrial manslaughter in the jurisdictions in which they operate.

The penalties for breaching industrial manslaughter offences also vary between jurisdictions. For a body corporate, maximum penalties range from $10 million (in Western Australia),^[8] to $20 million (in New South Wales).^[9] The penalties for an individual (which can include any person conducting a business or undertaking, or in some states, an officer of a corporation) range from a maximum sentence of 20 years (in the Australian Capital Territory, Western Australia, Queensland,^[10] and South Australia) to life imprisonment (in the Northern Territory).^[11] Employers, officers and other persons conducting a business or undertaking should therefore be aware of the penalties for committing industrial manslaughter in the jurisdictions in which they operate.

Successful prosecutions
Although not plentiful, there are some examples of successful prosecutions for industrial manslaughter. In R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113, for example, Brisbane Auto Recycling was charged with committing industrial manslaughter, contrary to section 34C of the Work Health and Safety Act 2011 (QLD). In this case, a worker at an auto wrecking business was crushed by a forklift which was being reversed by another worker. The worker died eight days later from his injuries. The Court found that the Company and its Directors were reckless in their attitudes to safety, were aware of serious safety risks, and that they could have taken steps to lessen the risks which would not have been costly or overly burdensome. The company pleaded guilty, and received a fine of $3 million dollars. Additionally, two of its directors were given ten-month custodial sentences, suspended for a period of 20 months, after pleading guilty to less serious category 1 reckless conduct offences under s 31 of the Work Health and Safety Act 2011 (QLD). This case highlights the severe monetary penalties that can be imposed on companies for committing industrial manslaughter.

Key Action Points for Human Resources and In-house Counsel

• Identify the relevant elements and consequences for committing industrial manslaughter in the jurisdictions in which your company operates
• If operating in Tasmania, be aware of the future start date for industrial manslaughter to commence
• Ensure compliance with health and safety duties, including by regularly reviewing policies and processes to ensure that there is no risk of negligence or recklessness towards workers, which could be capable of satisfying the fault element for industrial manslaughter

If you need legal advice and guidance regarding your work health safety compliance obligations, please call our Harmers legal team on +61 2 9267 4322.

[1] Safe Work Australia, ‘Preliminary fatalities – 2024’, <https://data.safeworkaustralia.gov.au/interactive-data/topic/preliminary-fatalities-2024> (accessed on  9 September 2024).

[2] Safe Work Australia, ‘Preliminary fatalities – 2024’, <https://data.safeworkaustralia.gov.au/interactive-data/topic/preliminary-fatalities-2024> (accessed on  9 September 2024).

[3] Work Health and Safety Act 2011 (NSW) s 34C(d).

[4] See Work Health and Safety (National Uniform Legislation) Act 2011 (NT) s 34B(1)(e).

[5] Work Health and Safety Act 2012 (Tas) s 30A(1)(a).

[6] Work Health and Safety (National Uniform Legislation) Act 2011 (NT) s 34B

[7] Work Health and Safety Act 2011 (QLD) s 34C, Work Health and Safety Act 2011 (ACT) s 34A

[8] Work Health and Safety Act 2020 (WA) s 30A,

[9] Work Health and Safety Act 2011 (NSW) s 34C.

[10] See Work Health and Safety Act 2012 (SA) s 30A, Work Health and Safety Act 2011 (QLD) s 34C, Work Health and Safety Act 2020 (WA) s 30A, Work Health and Safety Act 2011 (ACT) s 34A

[11] Work Health and Safety (National Uniform Legislation) Act 2011 (NT) s 34B(1)(e).

© Copyright Harmers Workplace Lawyers 2024. All rights reserved. No part of this alert may be reproduced, in whole or in part, by any means whatsoever, without the prior written consent of Harmers Workplace Lawyers.

Disclaimer: This news alert provides a summary only of the subject matter covered without the assumption of a duty of care by the firm. No person should rely on the contents as a substitute for legal or other professional advice.