Industrial Manslaughter - NSW

INDUSTRIAL MANSLAUGHTER - NSW

INTRODUCTION

On 4th June 2024, the NSW Minister for Industrial Relations and Work Health and Safety introduced into the New South Wales Parliament the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024. The primary objective of the Bill was “… to introduce an industrial manslaughter offence into the New South Wales work health and safety framework” (2nd Reading Speech by Minister Cotsis).

Acknowledging that NSW was the last mainland State without an industrial manslaughter offence, the Minister confirmed in her speech to rectify that situation. In so addressing Parliament, the Minister referred to data that showed that “… in the past 5 years, there have been 300 fatal workplace incidents in New South Wales”. Consequently, the legislation is focused on effectively deterring and preventing “… workplace deaths and injuries by discouraging unsafe work practices and holding those individuals responsible to account”.

The Bill followed the recommendations of the 2018 Final Report into a review of the NSW Work Health and Safety Act (“WHS Act”) – the Bullock Report. It also took into account the numerous consultative processes (including a Government survey) involved in and campaigning for the recognition of this offence that took place regarding workplace injuries and deaths (this included families, friends and unions), as well as the involvement of businesses and WHS professionals.

On 20th June 2024 the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (“Amendment Act”) passed the NSW Parliament. On 24th June 2024, the Act was assented to and thus commenced.

The Amendment Act – a summary

The Amendment Act not only amends the WHS Act 2011 (NSW) by creating an offence of industrial manslaughter but also provides for matters relating to gross negligence by amending the Industrial Relations Act Amendment Act 2023 (NSW) (passed in November 2023 and commenced on1st July 2024) – refer  Explanatory Note – Overview of Bill.

Whereas previously action in relation to industrial relations, workplace deaths had been addressed via the Crimes Act 1900 (NSW), under that legislation, offences related to common law manslaughter had “rarely happened” (Second Reading Speech) – requiring proof of criminal negligence. A review of those such situations would provide added information on the application of that former process.

In removing references to the Crimes Act, the proposed Amendment Act amends the WHS Act to create an offence of industrial manslaughter plus amending the Industrial Relations Amendment Act 2023 (NSW) by removing a redundant provision. The Amendment Act also includes a note in omitting “the Crimes Act 1900 and may be” and inserting instead that, “Part 2A and be prosecuted under this Act or may constitute manslaughter under the Crimes Act 1900 and be”.

Amongst some of the legislative changes (in summary form), the Bill set out the following amendments to the WHS Act:

·           s. 34B – Definitions: conduct means (a) an act, or (b) an omission to perform an act.

·           s. 34C – Offence of industrial manslaughter: this offence is created if a person commits this offence if the person –

(a)       has a health and safety duty, and

(b)      is a person or an office of a person, conducting a business or undertaking, and

(c)       engages in certain conduct that causes the death of a worker or another individual to whom the person’s health and safety duty is owed, and

(d)      engages in the conduct with gross negligence.

It should be noted that the maximum penalty for the offence of “gross negligence” is imprisonment for 25 years for an individual or $20m for a body corporate (Category 1 offence). This new offence does not create new WHS obligations or duties, rather a reinforcement of the importance of compliance and resulting in a strong deterrent.

·           Sub-section 34C (d) – establishes the offence of “gross negligence”: “the person engages in the conduct with gross negligence”.

 ·          s. 34D – exemption for volunteers: here the WHS Act will provide an exemption for volunteers: “A volunteer does not commit an offence against section 34C”. However, the note following this provision states: “A volunteer may still be liable for an offence of manslaughter under the Crimes Act 1900”.

·           s. 34E – no limitation period: this section provides a real genuine application of this Act by  pursuing and  allowing for proceedings for an offence against s.34C (offence of industrial manslaughter)  that (a) may be commenced at any time after the commission of the offence; and (b) are not subject to any limitation period in section 232 or another statute of limitation that would otherwise operate to prevent the commencement of proceedings for the offence”.

·           s. 244BA – Gross negligence: this new section commences with the words “(1) This section applies if an offence against this Act is constituted by engaging in conduct with gross negligence”. This section is then explained by sub-section (2) and (3).

·           Subsection 244BA (2) then states that “the conduct may be established on the part of a body corporate, despite no individual authorised person of the body corporate having engage in conduct with gross negligence , if the body corporate has engaged in conduct with gross negligence when viewed as a whole, determined by aggregating the conduct of more than 1 authorised person”.

·           Subsection 244BA (3) then clarifies “engaging in gross negligence” by reference to evidence associated with the action(s). These provisions reinforce the obligations on the part of the respective persons: The fact that this conduct was undertaken is then set out:  “… (the conduct) was substantially attributable to (a) inadequate corporate management, control or supervision of the conduct of 1 or more authorised persons; or (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate”.

Categories of Offences

Category 1 offences: gross negligence or reckless conduct – s. 31 (WHS Act 2011 (NSW))

Category 2 offences: failure to comply with health and safety duty – s. 32 (WHS Act 2011): the failure exposes an individual to a risk of death or serious injury or illness

Category 3 offences: failure to comply with health and safety duty – s. 33 (WHS Act 2011)

CONCLUDING COMMENTS

The significant increase in penalties seeks to ensure that the penalties continue to act as effective deterrents. As the Minister said in her Speech, “These laws are intended to profoundly alter the safety culture in New South Wales by raising the bar higher”.

Disclaimer: Richard Krajewski’s articles are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.