Australian Workplace Laws To Criminalise Workplace Fatalities.

6 January 2021
 

In October 2020, as part of the continuing harmonisation of national work health and safety laws, Australian states and territories are introducing laws for industrial manslaughter, defining a workplace fatality as a criminal offence.
 

Call for action
 

In response to a rise in Australian workplace fatalities, there have been increasing demands for workplace health and safety incidents that cause fatalities to be dealt with by criminal sanction.
 

The Australian Capital Territory, Queensland, the Northern Territory and Victoria have all agreed and legislated for industrial manslaughter, meaning that imprisonment is a real outcome for a workplace fatality. Western Australia and New South Wales are also in agreement but have adopted an alternate legislative approach.
 

In New South Wales, the Work Health and Safety Act 2011 (NSW) (NSW Act) was amended on 27 October 2020, after extensive debate in parliament. The amendment inserted a ‘legislative note’ which clarified that a workplace death can constitute manslaughter under existing criminal law (with a maximum penalty of 25 years’ imprisonment).
 

On 20 November 2020, Western Australia followed suit, amending the Work Health and Safety Act 2020 (WA) to include a ‘legislative note’ in the same terms as the NSW Act. This approach meant that neither state had to create a new criminal offence.
 

South Australia and Tasmania have not yet legislated for industrial manslaughter.
 

Harmonisation
 

Australia’s work health and safety laws are the responsibility of each state, territory and the Commonwealth. Almost all Australian states and territories have adopted model work health and safety laws (Model Laws) except Victoria and Western Australia (which it did on 10 November 2020). Should Victoria adopt the Model Laws at some point, Australia’s work health and safety laws will be truly harmonised.
 

Employers
 

The continued development of robust workplace health and safety laws in Australia including these latest developments means that it is imperative that businesses continue to regularly review systems of work (including processes, procedures and policies), routinely engage in training and education and make work health and safety a priority at all times.
 

For further information, please see the table below.
 

Work Health and Safety in Australia – at a glance
 

State or territory	Harmonised workplace laws	Industrial manslaughter provisions	Industrial manslaughter prosecuting body	Maximum safety penalty of body corporate	Maximum safety penalty (under safety legislation) for an individual
New South Wales	Yes	No new offence. Dealt with under existing criminal law.	Director of Public Prosecutions	A$3,000,000	A$600,000 and five years’ imprisonment
Victoria	No	Yes	WorkSafe Victoria	A$16,522,000	A$1,652,200 and 20 years’ imprisonment
Australian Capital Territory	Yes	Yes	Director of Public Prosecutions	A$1,620,000	A$320,000 and 20 years’ imprisonment
Western Australia	Yes	No new offence. Dealt with under existing criminal law.	Director of Public Prosecutions	A$3,500,000	A$680,000 and five years’ imprisonment
Queensland	Yes	Yes	Work Health and Safety Prosecutor	A$10,000,000	20 years’ imprisonment
Northern Territory	Yes	Yes	NT WorkSafe	A$10,205,000	Life imprisonment
Tasmania	Yes	No		A$3,000,000	A$600,000 and five years’ imprisonment
South Australia	Yes	No		$3,000,000	A$600,000 and five years’ imprisonment