Legal Insights

Recent reforms to the Model Work Health and Safety Act means harsher penalties for the offence of industrial manslaughter

Bruce Heddle,
Dale McQualter
, Michaela Biggins and Kenya Walker

• 25 July 2024 • 4 min read

This article was updated on Wednesday 18 September, 2024.

In the past few years there have been a number of significant reforms to the work health and safety (WHS) landscape in Australia, including the addition of industrial manslaughter provisions into WHS laws in various jurisdictions. The purpose for introducing these standalone offence provisions is to assist in combatting the unacceptably high rate of workplace fatalities that continues at workplaces. Statistics published by Safe Work Australia record that in 2023 alone, 175 workers died due to workplace incidents, with the industries of construction, agriculture, forestry and fishing, and public administration and safety experiencing the most fatalities.

In July 2023, the Model Work Health and Safety Legislation Amendment (Officers and Penalties) 2023 amended the Model Work Health and Safety Act (Model WHS Act) introducing industrial manslaughter as a standalone offence with maximum penalties of up to 20 years imprisonment for individuals and fines of up to $18 million for body corporates.

What is industrial manslaughter?

What amounts to industrial manslaughter differs between the jurisdictions. This includes who may commit the offence, the fault elements that must be established, the potential penalties and the available defences. However, industrial manslaughter broadly refers to an offence where a person conducting a business or undertaking (PCBU) or an individual engages in conduct (by act or omission) that represents a gross deviation from a reasonable standard of care resulting in a work-related fatality.

Where are we at with legislating industrial manslaughter?

As at September 2024, all 9 jurisdictions across Australia have now legislated the offence. The offence is currently in force in the Commonwealth, South Australia, Queensland, Western Australia, the Northern Territory, the ACT, Victoria and New South Wales. In Tasmania, the offence will take effect on the day the bill receives royal assent (yet to be confirmed). Notably, the Victorian Supreme Court has recently convicted the first employer under its new workplace manslaughter laws. To find out more about this decision, you can read our previous article here.

The most recent jurisdictions to pass industrial manslaughter offences are NSW, and Tasmania.

Following the Minns Government’s announcement of its intention to introduce the offence in October last year, and an extensive consultation process undertaken by SafeWork NSW, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 was introduced to and subsequently passed by the NSW Parliament in June 2024. The offence commenced on 16 September 2024. The Minn’s Government has committed to establishing a new unit within the NSW Office of the Director of Public Prosecutions which will be responsible for prosecuting industrial manslaughter offences, instead of the current WHS regulator, SafeWork.

In May 2024, the State Labor Opposition in Tasmania introduced a new bill to Parliament dealing with the offence of industrial manslaughter via a private members' bill. The bill passed on 11 September 2024.

Commonwealth
- Status
  
  On 7 December 2023, as part of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, amendments to the Commonwealth Work Health and Safety Act 2011 (WH&S Act) passed the Senate, introducing a new industrial manslaughter offence. The offence came into effect on 1 July 2024.
  
  Previously, there was no specific offence under the WH&S Act for persons who engage in grossly negligent or reckless conduct that causes the death of an individual. Rather, the former most serious offences (being Category 1 or 2 offences) were in respect of conduct that exposed a person to a risk of death, serious injury or illness.
- Who does the offence apply to?
  
  A PCBU or an officer of a PCBU can be prosecuted for an offence of industrial manslaughter under the WH&S Act.
  
  Even if industrial manslaughter charges are not brought, a PCBU or officer can still be charged with another offence (up to a Category 1 offence). Where industrial manslaughter charges are brought, alternative findings of guilt such as for a Category 1 or 2 offence can still be made.
- What are the elements of the offence?
  
  A person commits an offence of industrial manslaughter where:
  
  (a) the person is a PCBU or an officer of a PCBU;
  
  (b) holds a health and a safety;
  
  (c) intentionally engages in conduct;
  
  (d) the conduct breaches the health and safety duty;
  
  (e) the conduct causes the death of an individual; and
  
  (f) the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.
  
  The conduct does not need to be the sole cause of death for the offence to be made out - it must only substantially contribute to the workplace death.
- Enforceable undertakings
  
  As with Category 1 offences, a PCBU or officer cannot enter into an enforceable undertaking for an alleged contravention of an industrial manslaughter offence.
- Time limitations for bringing proceedings
  
  Unlike other offences under the WH&S Act, there is no limitation period for prosecution of an industrial manslaughter offence.
- Maximum penalties
  
  Individual: up to 25 years imprisonment.
  
  Body corporate: fines of up to $18 million.

South Australia
- Status
  
  In November 2023, the South Australian Parliament passed the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023, introducing the offence of industrial manslaughter to the Work Health and Safety Act 2012 (SA).
  
  Similar to the Commonwealth, the new laws commenced on 1 July 2024.
- Who does the offence apply to?
  
  A PCBU or an officer of a PCBU can be prosecuted for an offence of industrial manslaughter.
  
  The Act also introduces an ‘alternative verdict’, allowing the accused to be found guilty of a either a Category 1, 2 or 3 offence if the offence of industrial manslaughter cannot be made out. However, an alternative verdict will only be available if the industrial manslaughter proceedings are commenced within the limitation period of a lower category offence, being 2 years.
- What are the elements of the offence?
  
  A person commits an offence of industrial manslaughter where:
  
  (a) the person is a PCBU or an officer of a PCBU;
  
  (b) holds a health and safety duty;
  
  (c) engages in conduct that breaches that breaches the health and safety duty;
  
  (d) the conduct causes the death of an individual; and
  
  (e) engages in the conduct with gross negligence, or is reckless as to the risk of illness, serious injury or death of an individual.
  
  A person’s conduct only needs to substantially contribute to the death in order for the offence to be made out.
- Time limitations for bringing proceedings
  
  There is no limitation period for prosecution of an industrial manslaughter offence.
- Maximum penalties
  
  Individual: up to 20 years imprisonment.
  
  Body corporate: fines of up to $18 million.

Victoria
- Status
  
  Victoria is the only jurisdiction that has not adopted the Model WHS Law. Instead, WHS is governed by the Occupational Health and Safety Act 2004 (Vic) (OH&S Act), with the offence of workplace manslaughter (as opposed to industrial manslaughter) introduced in July 2020.
- Who does the offence apply to?
  
  The OH&S Act creates two separate offences of workplace manslaughter. This includes for:
  
  (1) a person who is not an employee or volunteer; and
  
  (2) a person who is an officer of an applicable entity and who is not a volunteer. An applicable entity includes a body corporate, unincorporated body or association or a partnership.
- What are the elements of the offence?
  
  Both offences have the same elements that must be established. That is, a person who is not a volunteer or a person who is an officer of an applicable entity commits an offence of workplace manslaughter if the conduct:
  
  (a) is negligent;
  
  (b) breaches a duty owed to another person; and
  
  (c) causes the death of another person.
- Maximum penalties
  
  Offence one:
  
  Individual: up to 25 years imprisonment.
  
  Body corporate: fines of up to approximately $19.7 million.
  
  Offence two: up to 25 years imprisonment.

Queensland
- Status
  
  The offence of industrial manslaughter was introduced to the Work Health and Safety Act 2011 (QLD) in October 2017.
- Who does the offence apply to and what are the elements of the offence?
  
  A person commits an offence of industrial manslaughter where:
  
  (a) the person is a PCBU or a senior officer of a PCBU;
  
  (b) a worker dies in the course of carrying out work (or is injured and subsequently dies);
  
  (c) the conduct causes the death of a worker; and
  
  (d) the conduct causing the death is negligent.
- Maximum penalties
  
  Individual: up to 20 years imprisonment.
  
  Body corporate: fines of up to approximately $16.13 million.

Western Australia
- Status
  
  The offence of industrial manslaughter was introduced in Western Australia in March 2022 under the Work Health and Safety Act 2020 (WA).
- Who does the offence apply to?
  
  This offence covers both PCBUs and officers of PCBUs.
- What are the elements of the offence?
  
  A PCBU commits an offence of industrial manslaughter if:
  
  (a) they hold a health and safety duty;
  
  (b) engages in conduct that causes the death of an individual;
  
  (c) the conduct breaches the health and safety duty; and
  
  (d) they engage in the conduct knowing that it is likely to cause serious harm or death, and in disregard of that likelihood.
  
  Conversely, an officer of a PCBU commits an offence of industrial manslaughter if:
  
  (a) the PCBU holds a health and safety duty;
  
  (b) the PCBU engages in conduct that causes the death of an individual;
  
  (c) the PCBU’s conduct breaches the health and safety duty;
  
  (d) the PCBU’s conduct is caused by the neglect of the officer;
  
  (e) the PCBU’s conduct is engaged in without the officer’s consent; and
  
  (f) the officer engages in the conduct listed above at (e) knowing the PCBU’s conduct is likely to cause serious harm or death, and in disregard of that likelihood.
  
  Unlike the other jurisdictions, negligent conduct is not a requirement for the offence. Instead, the key element that must be established is a PCBUs or officers failure to comply with their health and safety duty, which results in a death.
- Maximum penalties
  
  Individual: fines of up to $5 million and up to 20 years imprisonment.
  
  Body corporate: fines of up to $10 million.

Northern Territory
- Status
  
  The offence of industrial manslaughter was legislated in the Northern Territory under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) in February 2020.
- Who does the offence apply to and what are the elements of the offence?
  
  A person commits an offence of industrial manslaughter where:
  
  (a) the person is a PCBU or an officer of a PCBU;
  
  (b) they hold a health and safety duty;
  
  (c) intentionally engages in conduct;
  
  (d) the conduct breaches the health and safety duty;
  
  (e) the conduct causes the death of an individual; and
  
  (f) the person was reckless, or negligent, about the conduct that breached the health and safety duty and caused the death of the individual.
- Maximum penalties
  
  Individual: imprisonment for life.
  
  Body corporate: fines of up to approximately $12.02 million.

Australian Capital Territory
- Status
  
  The ACT was the first jurisdiction to introduce industrial manslaughter as an offence under the Crimes Act 1900 (ACT) in 2004. Subsequently, it was introduced to the Work Health and Safety Act 2011 (ACT) in November 2021.
- Who does the offence apply to and what are the elements of the offence?
  
  A person commits an offence of industrial manslaughter where:
  
  (a) the person is a PCBU or an officer of a PCBU;
  
  (b) they hold a health and safety duty;
  
  (c) engages in conduct that breaches the health and safety duty;
  
  (d) the conduct causes an injury or death of a worker or the death of another person; and
  
  (e) they are reckless or negligent about causing the death of a worker or other person.
- Maximum penalties
  
  Individual: up to 20 years imprisonment.
  
  Body corporate: fines of up to $16.5 million.

New South Wales
- Status
  
  Previously, workplace deaths were prosecuted in NSW under the existing offences within the Work Health and Safety Act 2011 (NSW), with the most serious offence being the Category 1 offence.
  
  However, on 20 June 2024, the NSW Parliament passed the Work Health and Safety (Industrial Manslaughter) Bill 2024, which sees a new Part 2A dealing with the offence of industrial manslaughter introduced to the Work Health and Safety Act 2011 (NSW).
  
  The new industrial manslaughter provisions will came into force on 16 September 2024.
- Who does the offence apply to?
  
  This offence covers both PCBUs and officers of PCBUs.
  
  Although the conduct of volunteers is not covered by the offence, they may still be liable for an offence of manslaughter under the Crimes Act 1900 (NSW).
- What are the elements of the new offence?
  
  A PCBU or an officer of a PCBU commits an offence of industrial manslaughter if:
  
  (a) they hold a health and safety duty;
  
  (b) engages in conduct that constitutes a failure to comply with the health and safety duty;
  
  (c) the conduct causes the death of a worker or another individual to whom the health and safety duty is owed; and
  
  (d) engages in the conduct with gross negligence.
  
  The new provisions clarify the circumstances in which a body corporate may be found grossly negligent, including where:
  
  (a) when considered as a whole, the combined conduct of more than 1 ‘authorised person’ constitutes gross negligence’;
  
  (b) the grossly negligent conduct was substantially attributable to inadequate corporate management, control or supervision of conduct of 1 or more authorised persons; or
  
  (c) a failure to provide adequate systems for conveying relevant information.
  
  An ‘authorised person’ is defined as an officer, employee or agent of the body corporate acting within their actual or apparent authority.
- Time limitations for bringing proceedings
  
  As is the case with other jurisdictions, there is no limitation period for the prosecution of an industrial manslaughter offence.
- Maximum penalties
  
  NSW has the highest maximum penalties for the offence of industrial manslaughter, with an individual facing up to 25 years imprisonment and body corporates facing fines of up to $20 million.

Tasmania
- Status
  
  The Tasmanian Parliament passed the Work Health and Safety Amendment (Safer Workplaces) Bill 2024 on 11 September 2024, which introduced industrial manslaughter provisions. The offence will take effect on the day the bill receives royal assent (yet to be confirmed).
- Who will the offence apply to and what will be the elements of the new offence?
  
  Notably, the current drafting of this Bill is consistent with the approach used in Victoria. That is, the threshold for the offence of industrial manslaughter is the test of criminal negligence, (i.e. a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in).
  
  The Bill stipulates that a person will commit the offence of industrial manslaughter, in respect of a workplace, if:
  
  (a) they engage in conduct that is negligent or reckless;
  
  (b) the conduct results in, or substantially contributes to, the death of a worker at the workplace; and
  
  (c) the person is either a PCBU or an officer of a PCBU.
- Time limitations for bringing proceedings
  
  As is the case with other jurisdictions, there will be no limitation period for the prosecution of an industrial manslaughter offence.
- Maximum penalties
  
  Individual: up to 21 years imprisonment.
  
  Body corporate: fines of up to $18 million.

Key takeaways

1. PCBUs can face substantial fines if found liable for the offence of industrial manslaughter. In R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113, which was the first conviction of industrial manslaughter in Queensland, Brisbane Auto Recycling Pty Ltd was fined $3,000,000 for causing the death of a worker. Victoria and NSW have the highest fines for the offence, which are currently set at approximately $19.7 million and $20 million, exceeding the Model WHS Law model penalties.

2. If the conduct of an officer results in a workplace death, they may be sentenced to imprisonment. In R v Jeffrey Owen [2022] QDCSR 168, an officer was convicted of industrial manslaughter, which resulted in a 5 year prison sentence, suspended after 18 months. However, the length of sentencing will vary from jurisdiction to jurisdiction, with the Commonwealth, the Northern Territory, and NSW, having the harshest imprisonment penalties.

3. Take safety seriously. WHS failings are often a consequence of various elements, such as a failure of workplace management to provide and maintain effective WHS supervision and protections, and the direct conduct of individuals. Therefore, officers should be vigilant in ensuring that they are complying with their duties under the applicable WH&S Acts. This is especially important in light of WHS regulators becoming more active in pursuing industrial manslaughter charges.

4. Record diligently. As there are no limitation periods for commencing industrial manslaughter proceedings, PCBUs and officers can be fined or convicted for workplace deaths years after the incident may have occurred. Given these longer timeframes for prosecutions, it is crucial that detailed written records are maintained, and that all relevant safety protocols are adhered to following any workplace incidents. Memories, and therefore statements, may be difficult to rely upon in any prosecution.