Industrial Manslaughter Amendments

In the February 2023 edition of Motor Trade Magazine, we discussed the Work Health and Safety (Industrial Manslaughter) Bill which had been released by the South Australian Government for comment in November 2022. Since that time, the Government has considered comments provided by various organisations, including the MTA, and released a further draft Bill in April 2023. The main changes to the Bill are outlined below:

ORIGINAL BILL (NOV 2022)

Gross Negligence

For the purposes of this section, a person is grossly negligent as to the risk to an individual of death if the person’s conduct involves —

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk of causing the death of an individual, that the conduct merits criminal punishment for the offence.

Recklessness

No definition of recklessness

Category 1 Offence

A person commits a Category 1 offence if —

(a) the person has a health and safety duty; and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c) the person is reckless as to the risk to an individual of death or serious injury or illness.

Alternative Verdicts

If at the trial of a person for an offence against this section the trier of fact is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a Category 1 offence, a Category 2 offence or a Category 3 offence, the trier of fact may bring a verdict that the accused is guilty of that offence.

Maximum Penalties

Individual – 20 years imprisonment

Body Corporate - $15 million

AMENDED BILL (APRIL 2023)

Gross Negligence

A person engages in conduct with gross negligence if the conduct involves –

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk of causing the death or serious injury or illness of an individual, that the conduct merits criminal punishment for the offence.

Recklessness

A person is reckless as to the risk to an individual of death or serious injury or illness if –

(a) the person is aware of a substantial risk that death or serious injury or illness will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Category 1 Offence

A person commits a Category 1 offence if —

(a) the person has a health and safety duty; and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c) the person –

(i) engages in the conduct with gross negligence; or

(ii) is reckless as to the risk to an individual of death or serious injury or illness.

Alternative Verdicts

If at the trial of a person for an offence against this section the trier of fact is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a Category 1 offence, a Category 2 offence or a Category 3 offence, the trier of fact may bring a verdict that the accused is guilty of that offence if the proceedings for the offence charged commenced within the applicable limitation period for the lesser offence.

Maximum Penalties

Individual – 20 years imprisonment Body Corporate - $18 million

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The MTA remains concerned with a number of measures within this Amended Bill.

We have consistently maintained that any offence of industrial manslaughter should be clearly above and beyond the offences that are currently available in the Work Health and Safety Act 2012. In that regard, the view of MTA is that the offence of industrial manslaughter should be restricted to the higher standard, being ‘recklessness’.

Instead, the Amended Bill allows an offence of industrial manslaughter to be proven through either ‘recklessness’ or ‘gross negligence’. Further, the Amended Bill, rather than focusing on conduct involving a high risk of causing death, now includes the possibility of an employer of being charged for conduct involving a high risk of serious injury or illness.

The proposed maximum penalties have been increased in the Amended Bill. Whilst at some point in the future, all States and Territories in Australian may align their penalty structure to create uniformity in WHS laws, if South Australia elects to increase our penalties in isolation, we will have the second highest penalty in Australia, after Victoria.

The MTA will continue to monitor the progression of this legislation and relay the concerns of our members to the Government. As always, we remind our members to ensure their compliance with their WHS obligations and continue to identify any hazards in their workplace, and rectify any deficiencies urgently.

If you require any assistance with work health and safety, or wish to attend any training sessions, please contact the MTA Workplace Relations Team on (08) 8291 2000 or email wr@mtasant.com.au.