Recently, the NSW Government introduced the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 (Bill), which proposes to create two new offences relating to industrial manslaughter under the Work Health and Safety Act 2011 (NSW). A conviction may result in a maximum $10.1 million penalty for a body corporate and 25 years' imprisonment for an individual.
These reforms are key recommendations arising from Marie Boland's Final Report following her review of the model work health and safety laws. In her 2019 Report, Ms Boland stated that introduction of an industrial manslaughter offence would enhance and maintain harmonisation of the WHS laws given that it had already been introduced into ACT and Queensland law.
Proposed New South Wales industrial manslaughter provisions
Under the proposed provisions introducing sections 34D and 34E under the Work Health and Safety Act 2011 (NSW), a PCBU or senior officer will commit an offence if:
- a worker or other person dies at the workplace (or is injured and then dies) whether or not in the course of carrying out work for the business or undertaking; and
- that conduct was caused by the PCBU or senior officer who was negligent or reckless about causing the death of the worker or other person.
The NSW offence will carry a maximum penalty of $10.1 million for a body corporate and up to 25 years' imprisonment for an individual.
The proposed NSW provisions are significantly broader than the existing Queensland provisions, discussed below.
Queensland industrial manslaughter provisions
Under sections 34C and 34D of the Work Health and Safety Act 2011 (Qld), it is an offence for a PCBU or senior officer to negligently cause the death of a worker. This offence carries a maximum penalty of $10 million for a body corporate and up to 20 years' imprisonment for an individual.
Following the introduction of the Queensland industrial manslaughter provisions in 2017, there has been ongoing debate regarding their utility given the existing obligations on PCBUs and officers. These provisions also represent a departure from the usual risk-focus of WHS law. Further, while there is a definition of 'senior officer' it is unclear how this differs to the usual definition of 'officer' and leads to ambiguity in application.
The proposed NSW provisions inherit the above drafting issues from Queensland. However, they also have a broader application than the Queensland industrial manslaughter provisions, as they will apply:
- to the death of a worker or other person;
- whether or not that person was in the course of carrying out work for the business or undertaking; and
- to negligent or reckless conduct.
Future of the Bill
Notwithstanding the above, the political reality is that the Bill was introduced by Labor and given the current Liberal majority in NSW Parliament, there is a real question as to whether it will be passed.
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