ACT Bill Proposes Introduction of Industrial Manslaughter

Monday 5 July 2021 @ 11.38 a.m. | Industrial Law | Torts, Damages & Civil Liability

The Work Health and Safety Amendment Bill 2021 (ACT) ("the Bill") was presented in the ACT Assembly on 24 June 2021 by the Minister for Industrial Relations and Workplace Safety Mick Gentleman ("the Minister").

The Bill proposes the introduction of "industrial manslaughter" as an offence under the Work Health and Safety Act 2011 (ACT) ("the WHS Act").

It seeks to:

  • repeal current provisions relating to "industrial manslaughter" in the Crimes Act 1900 (ACT) ("the Crimes Act"); and
  • make consequential amendments to the Bail Act 1992 (ACT), the Crimes (Sentence Administration) Act 2005 (ACT) and the Supreme Court Act 1933 (ACT).

In his Media Release of 24 June 2021 the Minister states:

“Stronger industrial manslaughter legislation will help prevent workplace tragedies and remind employers of their obligations. Canberra workers have the right to return home safely and employers have an important role to play in this."

Overview of the Bill

In general terms, the proposed changes would broaden the circumstances that would fall under industrial manslaughter. For example, if passed, the amendments under the Bill would include cases where actions or conduct causes the death of a member of the public, a sub-contractor, visitor, or employee of another employer, under the charge of industrial manslaughter.

Changes proposed by the Bill aim to align the industrial manslaughter offence with other work safety offences, which would allow for better improved, proportionate, and integrated compliance measures being available to the work safety regulator.

According to the Bill's explanatory statement: 

"The Bill articulates the Government’s agreed position to establish the highest deterrence for continuing work safe failings and unsafe practices, which have the potential to result in harm, injury and death to workers."

The Bill proposes establishing an offence provision that is similar to that which is already in effect under the Crimes Act for the purposes of industrial manslaughter.

The current Crimes Act provision for industrial manslaughter allowed employers to be held accountable for reckless or negligent behaviour that resulted in the death of a worker. However, the Crimes Act provision had, according to the Bill's explanatory statement:

"fallen out of alignment with community expectations for work health and safety laws and [did] not accommodate all relevant employment and workplace arrangements."

The current Crimes Act offence does not enable the conduct of all parties, particularly corporations and senior officers who are covered by the ACT’s work health and safety (WHS) laws, to be considered in the event of a workers’ death, particularly where there are systematic work safety failings.

The case for the introduction of an industrial manslaughter offence was comprehensively considered at the national level as part of the Safe Work Australia Review of Model WHS Laws. The final report of the review found: 

“Workplace injuries and deaths ruin lives and shatter families. It is critical that the community is confident that the model WHS laws enable justice to be administered fairly and appropriately … I am recommending a new offence of industrial manslaughter be included in the model WHS laws. The growing public debate about including an offence of industrial manslaughter in the model WHS laws was reflected in consultations for this Review. I consider that this new offence is required to address increasing community concerns that there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care that leads to a workplace death. It is also required to address the limitations of the criminal law when dealing with breaches of WHS duties”

According to the Bill's explanatory statement, the transfer of the offence provisions from the Crimes Act to the WHS Act would:

"improve the ACT’s ability to respond to inadequate safety standards which result in a workplace death".

Changes proposed under the Bill also aim to encourage work safety awareness and compliance more generally. Further, the Bill seeks to make an amendment to the legislative arrangements for managing industrial manslaughter offences. 

According to Minister's Media Release:

“The new offence will carry an imprisonment penalty of up to 20 years imprisonment for individuals and $16,500,000 for corporations who cause the death of a worker through the continued disregard of safe work practices and breaches of work safety obligations. ... This change will also give families of those killed in the workplace better access to justice and provide more avenues to address poor workplace safety practices and systemic non-compliance."

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Work Health and Safety Amendment Bill 2021 (ACT) and explanatory materials available from TimeBase's LawOne Service

Media Release: New laws to better protect workers [Industrial Relations and Workplace Safety Minister, 24 June 2021]

Review of the model WHS laws: Final report (Safe Work Australia)

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