The Northern Territory Government last week introduced the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 creating the workplace health and safety (WHS) offence of industrial manslaughter
The proposed changes carry maximum penalties of ‘imprisonment for life’ for individuals and 65,000 penalty units (currently equating to $10,205,000) for bodies corporate.
The Territory Labor Government intends to introduce the industrial manslaughter laws in the September sittings, with the view to have them debated by the end of year.
Should these laws be passed by Parliament, industrial manslaughter will be an offence in the Territory by the end of the year.
The move follows the Territory Government signalling its intention to proceed with the introduction of the Work Health and Safety Legislation Amendment (Industrial Manslaughter) Bill 2019 following recommendations from the Best Practice review of workplace health and safety in the NT conducted by Tim Lyons.
Areas of note for employers within the legislation include
(1) a “person” commits the offence of industrial manslaughter if:
- a) the person has a health and safety duty; and
- b) the person intentionally engages in conduct; and
- c) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and
- d) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.
(2) Strict liability applies to subsection (1)(a).
(3) A volunteer does not commit industrial manslaughter for a failure to comply with a health and safety duty, unless the duty is under section 28 or 29.
It states that if a judge is not satisfied beyond reasonable doubt that a person is guilty of industrial manslaughter, the judge can find the person guilty of an alternative offence (under section 31 or 32 of the Territory WHS Act).
The limitation period for prosecutions in section 232 of the Act doesn’t apply to industrial manslaughter or to a guilty verdict for an alternative offence.
Under the new laws, the regulator must obtain the consent of the Director of Public Prosecutions before bringing proceedings for industrial manslaughter.
Additionally, the Bill provides that any “person” may request the regulator to bring a prosecution.
Industrial manslaughter shake-up in WA
In late August, West Australian IR Minister Bill Johnston and Premier Mark McGowan confirmed the Government’s plan to introduce an industrial manslaughter offence. No draft Bill or opportunity for consultation has been provided at this stage.
The government’s plan will be introduced to Parliament next year and includes two offences of industrial manslaughter.
- Industrial manslaughter class one: the most serious offence, this includes a maximum penalty of 20 years’ imprisonment for an individual conducting or undertaking a business.
- Industrial manslaughter class two: this includes a maximum penalty of 10 years’ imprisonment for negligent behaviour.
The WA Government will aim to push the legislation through the spring sitting of Parliament before Christmas.
AMMA submits member views on review of model WHS laws
In August AMMA made a submission to Safe Work Australia’s (SWA) Consultation Regulation Impact Statement (CRIS) on the impacts of implementing the Recommendations of the 2018 Review of the Model WHS laws (2018 Review) as part of the consultation process on behalf of employers in the resources and energy industry.
AMMA provided feedback on recommendations of significant concern to members in the resources and energy industry.
AMMA’s position, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death. A framework that focuses on punitive measures to health and safety compliance diminishes an organisations’ safety culture. AMMA maintains that continuous improvement in safety outcomes in the workplace, is best driven by cooperative, proactive initiatives to enhance safety culture, not an adversarial legal approach seeking to attribute blame and liability after an accident occurs.
AMMA will continue to support and advocate for workplace regulation that is appropriate and balanced and which does not impede productivity, freedom of association and safety in the workplace.
For further information about the submission or the 2018 Review of Model WHS Laws contact [email protected]