Industrial Manslaughter – A Bridge Too Far For New South Wales

Recently proposed safety legislation in NSW indicates that industrial manslaughter is simply a bridge too far for our state Government.

The introduction and passing by the Legislative Assembly of the Work Health and Safety Amendment (Review) Bill 2020 clearly indicates that we have baulked at this level of regulation in our state. This is despite highly publicised national interest following high profile workplace disasters, a Federal Senate Inquiry – ‘They never came home’ – the frameworks surrounding the prevention, investigation and prosecution of industrial deaths in Australia’ and also an independent review -‘The review of the model Work Health and Safety Laws’ –
December 2018, undertaken by Marie Boland, which all recommend such laws.

Other states, commencing with Queensland, have either passed such laws or are working on their introduction, which will see a major shift in the Work Health and Safety landscape. Queensland introduced industrial manslaughter legislation, which commenced in 2018, with fines of up to 10 million dollars against corporations and 20 years gaol for individuals. Victoria has passed similar industrial manslaughter legislation with maximum penalties for corporations of 16.5 million dollars and 20 years gaol for individuals, whilst Western Australia’s proposed legislation has fines of 10 million dollars and 10 years gaol for individuals. The ACT is on the bottom end of the scale with corporate penalties of 1.62 million dollars and 20 years gaol for individuals.

It appears the Labor Government states have taken the lead egged on by the unions, whilst the Liberal/Coalition states have baulked at this move and have taken a more conservative approach. That is not to say that the NSW Government has not had a response at all. In the recent bill the NSW Parliament has introduced a new category 1 offence, that being an offence of ‘gross negligence’. This is in addition to the already existing Work Health and Safety offence of recklessness.

Whilst this falls short of industrial manslaughter legislation, the offence of gross negligence will require a lessor fault element then the already existing offence of recklessness and make it easier for prosecutors to successfully commence proceedings under the highest-level category 1 offence provisions.

The bill also increases maximum penalties under the legislation to $3,463,000 for companies and $346,500 for individuals together with 5 years gaol. Interestingly there has also been a note proposed to be inserted into the Work Health and Safety Act that references the availability of manslaughter in The Crimes Act 1900 as a reminder this is an already existing option for state prosecutors. This offence in The Crimes Act however is only available for the prosecution of individuals punishable by up to 25 years gaol. This is not a corporate offence where incorporated companies or organisations can be prosecuted.

Whilst the bill has fully passed the legislative assembly, it has not yet made it to the Legislative Council and given current developments in regard to COVID-19 and a very distracted Parliament, it may not be until 2021 when the legislation will actually take effect.

Other key elements of the bill for NSW businesses relate to the proposed prohibition on insurance for Work Health and Safety penalties. Currently businesses can take out insurance for penalties handed down by the courts for what amount to criminal prosecutions of breaches of the Work Health and Safety Act.

The bill proposes to make it illegal for such insurances and any indemnities which may be offered under insurance policies or other agreements between companies and their officers and employees. This has been a somewhat controversial issue for many years since the insurance industry developed these products. Whilst legally questionable, there has however been continued reliance upon such insurance products by Defendants with no definitive court judgement on their legality.

Whilst it remains to be seen how these new provisions will be enforced by the state regulator, SafeWork NSW, there is no doubt that such legislation will bring Work Health and Safety into a sharper focus for companies and their directors with high level prosecutions being easier to achieve and the ability to mitigate risk through insurance and taken away by the legislator.

How We Can Help?

Roberts Legal strongly recommends that companies and their officers review their Work Health and Safety systems and policies to ensure compliance with the Work Health and Safety Act, conduct a review of their current insurance program to ensure that they are not paying premiums for what will soon become obsolete products and ensure that they have a disaster management plan in place should the unforeseen and unlikely event of a major Work Health and Safety incident or fatality occur in their workplace.

Roberts Legal can assist in reviewing company Work Health and Safety management systems and policies and provide appropriate training and legal representation in relation to such matters.

This article first appeared in the April edition of the Hunter Business Review, you can view the original article and full edition here.

By Jeremy Kennedy,
Director, Special Counsel