30 May, 2018
We are witnessing a clear escalation in regulatory activity across Australia, most recently and very topical is the new Industrial Manslaughter (IM) offence.
Where a business is found to have negligently caused the death of a worker (or maybe even a passer-by in Victoria) the possible consequences for leadership, management and businesses are potentially significant. Senior officers (which includes everyone involved in management) could face up to 20 years jail time and businesses may be fined up to $10 million.
The new IM offence is extremely sobering for businesses and individuals on many fronts, including the fact that a monetary fine may not be an option (leaving only jail time if found guilty) and the offence may apply to a death which occurs later than at the time of the workplace incident, potentially much later (think asbestosis or a suicide following workplace bullying or harassment), giving no certainty on limitations of legal actions. There is no time bar to proceedings commencing.
Now, more than ever before, it is important for businesses to be on the ‘front foot’ in reviewing, updating and practising their workplace health and safety policies, procedures and training. It is important enough to warrant putting your incident response and incident investigation protocols through a management of change review. Consider how your onsite management team would participate in responding to a fatality or serious injury later resulting in a fatality in terms of scoping an investigation, drafting alerts or interacting with regulators (if they are exposed to prosecution).
Once introduced, it seems unlikely that IM laws will be repealed. There is no political mileage in repealing it. Below is an update by state and territory on the status of IM laws.
Queensland
The work health and safety (WHS) IM offence is already in force (established 23 October 2017). There was a recent IM prosecution for a work related fatality that occurred in 2012, interestingly under the Criminal Code, where the offender was given a seven year prison sentence, with two years minimum non-parole.
Australian Capital Territory
The IM offence is already in force (established 1 March 2004). There have not been any prosecutions under this offence.
Victoria
The Labor State Government has pledged to introduce new IM laws if it wins the next election on 24 November 2018. Significantly, the proposed laws will not only cover workers, but also suppliers, contractors, routine maintenance workers, site visitors and passers-by. The LNP has yet to announce its position.
Western Australia
The current Labor Government’s policy platform involves introducing IM laws during its first term in office (ending 13 March 2021), but notably this was not a campaign promise. Some Labor MPs are reportedly opposing a push by unions to introduce new IM laws.
Tasmania
The current Liberal Government has no policy to introduce new IM laws. Leading up to the last election on 3 March 2018, the Tasmanian Labor Party promised to introduce the new IM offence if it was elected, and we presume it will carry the same promise to the next election in or before 2022.
New South Wales
The NSW state government previously considered introduction of IM laws in 2005. Neither party has made announcements about their intention or policy in respect of IM laws. With the next state election on 23 March 2019, we may well see proposed changes announced – watch this space.
South Australia
Labor’s intention on introducing new IM laws is unclear, but it has committed to introducing higher penalties for WHS offences that cause workplace deaths, either under current state WHS provisions or as a new IM offence – watch this space.
Northern Territory
Despite unions lobbying for change, neither party has expressed an intention to introduce new IM laws. The NT Government is reportedly awaiting the outcome of the national review of model WHS laws.
National laws
The Queensland Government is pushing for Federal IM laws as part of the national review of the model WHS laws, the outcome of which is expected to be released to WHS Ministers in early 2019. Unions are also lobbying the national and state Labor parties to commit to introducing new IM laws at the Labor National Conference.
In the 2017 Best Practice Review of Workplace Health and Safety Queensland, which was undertaken in response to the Dreamworld incident, Tim Lyons made a number of recommendations for the review of the model WHS laws. Some recommendations included considering re-introducing the reverse onus of proof so that the defendant must show it complied with its duties and prohibiting and making an offence taking out insurance to cover paying WHS penalties (as already exists in New Zealand).
For further information, please contact:
Miles Bastick, Partner, Herbert Smith Freehills
miles.bastick@hsf.com
