LEGAL
INDUSTRIAL MANSLAUGHTER A look at the laws or provisions relating to workplace manslaughter around Australia
In light of the recent tragic death of 18-year-old apprentice, Christopher Cassaniti when scaffolding collapsed at a Sydney construction site, there have been renewed calls around the country to enact laws specifically relating to industrial manslaughter offences. Generally, criminal convictions for workplace deaths are encompassed within the offence of negligent manslaughter which is variably dealt with by each state or territory’s criminal legislation and the common law.¹ However, this offence is difficult to prosecute, requiring a grossly negligent individual embodying the company whose conduct can be attributed to the corporation. A recent independent national review of workplace safety laws, led by former Executive Director of Safe Work Australia, Marie Boland, delivered its findings in December 2018.² In relation to industrial manslaughter specifically, Ms Boland recommended sentencing guidelines,
penalty levels, the introduction of a new industrial manslaughter offence and the prohibition of access to insurance for payment of fines. There has been extensive discussion of this review, with Safe Work Australia releasing the Final Report on 27 February 2019. It is currently awaiting Ministerial response. Here, we summarise the industrial manslaughter laws currently in force within the Australian Capital Territory and Queensland, and proposed provisions in Victoria, New South Wales, South Australia and Western Australia as safety is an important responsibility of all who work in the industry.
AUSTRALIAN CAPITAL TERRITORY As the first Australian jurisdiction to introduce industrial manslaughter offences, the Australian Capital Territory made this change in 2004
by amendments to existing criminal legislation.³ The standard to prosecute under the Australian Capital Territory legislation requires the employer to be reckless about causing serious harm, negligent about causing death or demonstration that the company exhibited a culture that directed, encouraged, tolerated or led to noncompliance that resulted in a fatality. It should be noted that acts and omissions are equally liable, therefore a failure to act can be prosecuted as an offence the same as a negligent or reckless action. Resultingly, a company can now be convicted of industrial manslaughter for neglect that is attributable to a group of people. Corporations may be fined up to $5m if convicted of this offence. Additionally, a senior officer who presided over unsafe culture can be fined up to $220,000 and/or sentenced to a prison term of up to 20 years.
¹Crimes Act 1900 (NSW) s 18; Crimes Act 1900 (ACT) s 15; Criminal Code 1899 (Qld); Criminal Code 1924 (Tas); Criminal Code 1913 (WA); Criminal Code 1983 (NT). In Victoria and South Australia manslaughter is defined by the common law. ²Commonwealth, Review of the model Work Health and Safety laws, Final Report (2018). ³Crimes (Industrial Manslaughter) Amendment Act 2003 (ACT); Crimes Act 1900 (ACT) pt 2A.
40 - JUNE 2019 - THE BUILDING ECONOMIST
