Australia: Industrial manslaughter laws in Queensland: How the new legislation could affect you

Last Updated: 10 November 2017
Article by Michael Selinger
Most Read Contributor in Australia, August 2018
The industrial manslaughter legislation that has been passed in Queensland could send company officers to jail

On 12 October 2017, the Queensland Parliament passed the Work Health and Safety and Other Legislation Amendment Bill 2017 (Qld) (Bill), which introduced new industrial manslaughter provisions and other amendments to the Work Health and Safety Act 2011 (Qld) (WHS Act).

Offence by PCBU

The new legislation will provide an offence of industrial manslaughter for a person conducting a business or undertaking (PCBU). A PCBU will commit an offence if:

  1. a worker dies in the course of carrying out work (including where the worker is on a break) for the business or undertaking (or is injured in the course of carrying out work for the business or undertaking and later dies)
  2. the PCBU's conduct (either by act or omission) causes the death of the worker
  3. the PCBU is negligent about causing the death of the worker by the conduct

If the offence is proved to the criminal standard, then the PCBU will face a penalty of up to $10 million if it is a corporation or, if the PCBU is an individual, will face up to 20 years' imprisonment.

The availability of an 'accident' defence from the offence of industrial manslaughter has been excluded under the new legislation.

Offence by senior officer

There is a separate offence of industrial manslaughter for a senior officer.

The offence for the senior officer is cast in the same terms as the offence for the PCBU. That is, a senior officer will be guilty of an offence if a worker has died in carrying out work for the PCBU and the senior officer's conduct causes the death of the worker and the senior officer is negligent about causing the death of the worker by the conduct.

If the offence is proved, there is no monetary penalty but imprisonment of up to 20 years can be imposed.

Coverage confusion

The definition of 'senior officer' extends the meaning of officer under the current WHS Act to mean a person who is an executive officer of the company or the holder of an executive position (however described) in relation to the PCBU, who makes, or takes part in making, decisions affecting all, or a substantial part, of the PCBU's functions.

An executive officer is then separately defined to mean a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer.

On its face, there could well be confusion as to which persons the provisions will apply to, particularly, in relation to whether the person "is concerned with, or takes part in, the corporation's management".

The legislation also provides that a person's conduct 'causes' death if it "substantially contributes to the death". Again, there is likely to be confusion as to whether or not someone's conduct causes the death and whether the action or inaction of any particular individual has substantially contributed to the death or not.

Issues for officers

One of the most imminent issues for senior officers of organisations in Queensland following the introduction of this law will be their response to any investigation into a fatality.

Inspectors will have the power to make a determination on matters where WHS right of entry issues cannot be resolved, including whether there is a valid right to enter and the WHS issues that have arisen to the parties for entry.

The Bill has also clarified the situations in which an inspector can require production or documents and answers to questions under section 171 of the WHS Act. The new provisions provide that the powers under section 171:

  1. apply to an inspector who enters (or has entered within the last 30 days) a workplace or any other inspector
  2. ensure that the production of a document is not limited to the workplace but can be at any place
  3. require a person to answer questions at any reasonable time and place, not just the workplace

It is not clear at this stage how the WHS Prosecutor (a newly created role under the legislation), armed with the potential for a new charge to be brought against a senior officer, will interact with the safety regulator in its exercise of compulsory investigative powers to obtain evidence from a senior officer.

For example, under the current law, there is no protection from self-incrimination by reason of a right to silence. Such a right would normally be afforded by police to an individual being charged with a criminal offence of manslaughter.

Assuming the inspector is exercising their statutory powers, responses provided by an individual under compulsion from a Work Health and Safety inspector will have the protection that those answers cannot be used against the individual. That assumes the inspector gathers evidence by using those powers.

Given the potential for the regulator to bring industrial manslaughter charges against a senior officer, a decision may need to be made at an early stage of the investigation as to how evidence will be obtained so that such a charge is able to be considered. Further, interaction with police who may be involved at the initial stages of an investigation will also need to be considered.

The out-take for a senior officer under the new laws (assuming you can determine whether you are a senior officer or not) will be to obtain separate independent legal advice from that being sought by the PCBU. This will be necessary as to assess the exposure of the senior officer to prosecution and how they should participate in a workplace investigation by the regulator.

Separately, for any internal investigation undertaken by the PCBU into a fatality, whether under legal professional privilege or not, a senior officer will now need to be aware that they could personally be exposed to criminal prosecution, including by the use of evidence gathered by the PCBU itself in investigating the fatality.

Watch this space

It will be important to watch developments by the Queensland regulator as to its proposed response.

It will also be a significant departure from the harmonised approach that all states and territories (other than Victoria and Western Australia) have largely embraced to date.
The outcome could be that other jurisdictions look to replicate the laws, although it is early days.

Criticism of the new legislation

In October this year, the Australian Industry Group (Ai Group) had sent a submission to the Queensland government requesting that it reconsider the introduction of these laws.

The concern expressed by Ai Group was that the process leading to the Industrial Manslaughter Legislation did not involve "any reasonable or detailed examination of the merits of the provision, including how it would work with the other parts of the Work Health & Safety Act to drive better workplace safety outcomes".

The Ai Group submission also pointed out that the only Australian jurisdiction currently with a separate industrial manslaughter offence is the ACT – where there have not been any successful prosecutions under those laws.

The Ai Group pointed out that the ACT underwent a major review of declining safety in its construction industry after a number of workplace fatalities, despite having had the industrial manslaughter provisions in place since 2004.

Similar concerns about the proposed new laws have been raised by the Queensland Law Society. In a media release in August 2017, the Queensland Law Society President Christine Smyth said the proposed changes to the Workplace Health & Safety Laws were unwarranted because the Work Health & Safety Act 2011 and the State's criminal code already provided offences, including manslaughter, to deal with such criminal wrongs in the workplace.

In a series of strident comments, Ms Smyth said that while there "does need to be an increase in Workplace Health and Safety Queensland's resources so that appropriate cases can be prosecuted... layering a new law on top of an existing law is not the answer to improving processes and simply defies common sense".

In emphasising the adequacy of the existing laws, Ms Smyth stated that "individuals, including senior officers of a corporation, can be held criminally responsible for deaths, such as the Dreamworld tragedy".

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael Selinger
Similar Articles
Relevancy Powered by MondaqAI
ClarkeKann Lawyers
Corrs Chambers Westgarth
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
ClarkeKann Lawyers
Corrs Chambers Westgarth
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions