Australia: Industrial manslaughter offence proposed in Victoria - a major shift in OHS regulation?

Last Updated: 2 June 2018
Article by Sam Jackson and Gina Carosi

On 26 May 2018, Victorian Premier Daniel Andrews announced the Labor Party plans to introduce "industrial manslaughter" offences in Victoria if re-elected. The announcement follows a campaign by Victorian unions calling for tougher laws to prevent workplace fatalities, particularly following the recent introduction of similar offences in Queensland.

The announcement is significant for employers and senior managers in Victoria because of:

  • the potential substantial penalties for those found guilty of the new offences—substantial fines and substantial period of imprisonment
  • the apparent fundamental shift in the approach to occupational health and safety (OHS) regulation in Victoria
  • the relevant standard that employers and individuals will be judged against in determining whether the offences have been committed remains unclear and may be substantially lower than one of the existing offences that provides for imprisonment of individuals (which currently requires "recklessness"), and
  • the offences appear likely to apply more widely than those already introduced in Queensland, including when a member of the public has died.

Significant maximum penalties

Premier Andrews announced that the new offences will attract maximum penalties of 20 years' imprisonment for individuals or a fine of up to approximately $16 million for corporations. Each of these penalties is significantly higher than the existing maximum penalties under the Occupational Health and Safety Act 2004 (OHS Act) for reckless endangerment—currently set at five years' imprisonment or a fine of approximately $285,000 for individuals and a fine of approximately $3.2 million for corporations.

Fundamental shift in approach to regulation—risk versus outcome

Although there are few details regarding the proposal, based on the recent experience in Queensland, this announcement signals a fundamental shift in the approach to OHS regulation in Victoria—at least in relation to workplace fatalities.

Although the existing offences under the OHS Act are likely to remain in place following any amendments, the announcement suggests the new industrial manslaughter offences will seek to impose criminal sanctions on employers and individuals where their negligence causes the death of an employee, other worker or member of the public.

This is in contrast with the current approach to OHS regulation in Victoria (and other Australian jurisdictions), where criminal liability is imposed when a duty holder fails to take all reasonably practicable steps to control a risk to health and safety. Under this approach, the ultimate outcome of an alleged breach of the OHS Act (which in many cases may be death or serious injury), has only limited relevance to the Court's determination of whether the duty has been met.

Applicable standard—recklessness or negligence?

The term "negligence" in the announcement appears to draw parallels to the recently commenced industrial manslaughter offences in Queensland, where the regulator must prove:

  • a worker died in the course of carrying out work for the accused or later died from injuries suffered in the course of carrying out work for the accused
  • the accused's conduct caused the death, and
  • the accused was negligent about causing the death of the worker.

What remains unclear in Queensland and Victoria is whether the principles of criminal or civil negligence will apply to determining if the offences have been committed. Civil negligence refers to the situation where a duty holder falls short of the standard of care that a reasonable person would be expected to exercise in the circumstances. The higher standard of criminal negligence requires proof of conduct, which falls so far short of the relevant standard that the conduct merits criminal punishment.

However, what is clear is that the concept of negligence, regardless of whether it is criminal or civil negligence, is a lower standard than that currently required by the "reckless endangerment" offence contained in s 32 of the OHS Act. This offence is the only way in which an individual may be imprisoned (other than the offence of assaulting a WorkSafe inspector) and attracts a maximum penalty for corporations of more than double the maximum penalty that can be imposed on employers in the majority of prosecutions.

To prove an employer or individual was reckless, a regulator must prove "foresight on the part of the offender that the conduct (to be) engaged in would probably have the consequence that another person at the workplace was placed, or could be placed, in danger of serious injury" (Orbit Drilling Pty Ltd v R [2012] VSCA 82, [24]) and that the offender displayed "indifference as to whether or not those consequences occur" (R v Nuri [1990] RV 641, 643). That is, the regulator must prove the accused knew their act or omission would have or could have placed a person at risk of serious injury and continued regardless.

If similar wording to the Queensland legislation is adopted in Victoria, the standard the regulator will need to prove before significant penalties can be imposed (including imprisonment) may be significantly reduced.

Application of duty

In his announcement, Premier Andrews noted that the new offences will "cover a visiting supplier...a routine maintenance worker or three innocent people walking down a busy street".

These comments suggest the Victorian offences may have a wider application than the Queensland offences, which only apply to workers and not to members of the public. The comments appear to be in response to the media, union and public scrutiny following the penalties issued to Grocon (Victoria Street) Pty Ltd and Aussie Signs Pty Ltd when three members of the public were tragically killed at a building site in 2013, after being crushed by part of a hoarding wall that collapsed.

Next steps

No timeframe was provided for the introduction of a Bill to Parliament (the Victorian Liberal Party has not formally indicated its position regarding the proposed reforms as at the date of this article). However, as further details are announced in the lead up to the 2018 Victorian State election, we will provide updates and insights about the potential impact of these changes to OHS regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

Sam Jackson
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
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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