On the same day as another workplace death occurred in Victoria, the government has announced new industrial manslaughter laws.
Victoria next in line for industrial manslaughter offence
Victoria looks set to be the third Australian jurisdiction to introduce the specific offence of industrial manslaughter.
In 2003, the ACT began the trend with an offence under its general criminal legislation. Prosecutors brought the first case over a decade later in 2014, only to drop the charges in 2016. A second prosecution in relation to a fatality at the University of Canberra Hospital construction site is currently on foot.
Queensland introduced industrial manslaughter laws in 2017 and announced its first prosecution under the new laws late last month. Queensland's industrial manslaughter laws extend only to deaths of workers, and not members of the public (despite the Dreamworld tragedy often being referred to as one of the factors which led to Queensland introducing the offence).
In NSW, a draft Bill was introduced in early November which aims to clarify that some workplace related deaths can be prosecuted under the existing manslaughter offence in its criminal legislation.
Victoria's Labor Government has followed suit, with Attorney-General and Minister for Workplace Safety, Jill Hennessy, introducing the new Bill in Parliament on 29 October 2019. The Bill has been passed by Victoria's Legislative Assembly and will now be debated by the upper house.
The draft Victorian Bill also follows the public release earlier in 2019 of an independent review report into Australia's work health and safety laws. That report recommended introducing a new offence of industrial manslaughter into Australia's model WHS laws (the WHS laws are in force in all states and territories except Victoria and WA, which both have separate health and safety legislation).
What will Victoria's Industrial Manslaughter offence involve?
As proposed, the new Victorian Industrial Manslaughter offence will be part of the existing Occupational Health and Safety Act 2004, and will apply to employers, self-employed persons and officers (as defined in the Corporations Act 2001). The offence is aimed at conduct that is criminally negligent, constitutes a breach of an existing duty under Part 3 of the OHS Act (the general duties) and causes a death.
The Bill defines criminal negligence for the purposes of the offence, and links it to the duties in Part 3 of the Act (with certain exceptions to exclude employees who are not officers) so that liability should not arise if duty holders are compliant with those duties.
Unlike the Queensland laws, the Victorian offence would apply to deaths of workers and members of the public, and is therefore much broader in its potential application.
The Bill proposes a fine of up to approximately $16.5 million (100,000 penalty units) or 20 years' imprisonment. These are comparable to the penalties for manslaughter under the Crimes Act in Victoria.
The Victorian Government has suggested that the offence could cover situations where negligent conduct causes an injury or illness to someone who later dies from that injury or illness. It has been suggested that the offence could theoretically apply to suicide following an employer's negligent conduct. The Government maintains the laws would not make employers liable for the acts of "rogue" employees acting outside the scope of their employment (e.g. not complying with instructions).
The usual 2-year time limit to bring safety prosecutions will not apply to the industrial manslaughter offence so that proceedings can be brought at any time, meaning employers could be charged many years after a fatality occurs. WorkSafe will be responsible for prosecutions. The Victorian Government has announced a $10 million package to assist in enforcing the new laws, and that WorkSafe will employ up to 40 new inspectors over the next 4 years.
Impact yet to be seen
There has been debate for many years about whether industrial manslaughter laws are needed. The need for a separate industrial manslaughter offence remains contested and regulators' willingness to prosecute under such an offence is still unclear.
With no completed prosecutions yet in the ACT or Queensland, it is also unclear whether the offence is capable of being easily or properly prosecuted against employers and individuals.
Victoria's OHS laws have an existing offence of reckless conduct (the "category 1" charge) targeting similar conduct. Arguably, it may continue to be easier for the regulators to prosecute an employer under the reckless conduct offence than under the proposed new industrial manslaughter offence. Given this, it is questionable whether the regulator will make use of the new laws when prosecuting workplace fatalities, given there have only been a handful of reckless conduct prosecutions across Australia. For example, in NSW, the state with the most workplace fatalities each year, the Courts handed down the first category 1 decision in 2018.
While the government may be pushing only for deterrent value rather than enhancing WorkSafe Victoria's toolkit of charges to lay where fatalities occur, the real impact of any industrial manslaughter offence in Victoria (and elsewhere) remains to be seen.
We will be closely watching the progression of the Bill through Parliament and keeping you updated.
Author's note: Since this article was published, the Victorian Parliament has now passed the Bill into law and it is expected to commerce operating in mid-2020.