Australia: Marie Boland’s Review of the model Work Health and Safety laws – industrial manslaughter, enhancing the Category 1 offence, and what it might mean for statutory safety duty holders
Since the start of this year, two directors have been sentenced to custodial terms for safety offences in relation to separate fatal incidents. In February this year, Marie Boland’s Review of the model Work Health and Safety laws – Final report (Report) was released which recommends including a new offence of industrial manslaughter in the model Work Health and Safety (WHS) Act.
In this article, we examine two of the Report’s key recommendations which reflect the changing health and safety regulatory environment, and what it might mean for statutory safety duty holders, including individuals and persons who conduct a business or undertaking.
Recommendation 23b: Industrial manslaughter
The Report, commissioned by Safe Work Australia, recommends the amending of the model health and safety laws to provide for a new offence of industrial manslaughter. Currently, only Queensland and the Australian Capital Territory have implemented industrial manslaughter laws, although the Victorian government has promised that it will implement its own legislative version of the laws in the near future.
In Queensland, the offence attracts maximum penalties of 20 years imprisonment, and a fine of $10 million for body corporates. The Australian Labor Party has set an objective to have industrial manslaughter laws enacted by all Australian jurisdictions within a year should it successfully form government after the Federal election.
Basis for recommendation
Among other reasons, the Report cited that due to community expectations there should be an outcome-based offence in the model safety laws where the death of a person occurs as a result of the gross negligence of an individual or organisation. Currently, the model safety laws are mostly limited to providing for risk-based offences in relation to conduct that exposes a person to a risk of death or serious injury or illness.
Recommendation 23a: Enhance Category 1 offence
The Report also recommends the ‘enhancing’ of the Category 1 offence to include the fault element of gross negligence. Currently, the offence is limited to including the fault element of recklessness. The Report noted the difficulty for safety regulators in being able to secure successful Category 1 prosecutions, due to the difficulties associated with proving recklessness.
The Report said that recklessness, in criminal law, is intentional and requires the prosecution to prove a conscious choice to take an unjustified risk. By adding a threshold for prosecution of gross negligence, the Report said that a prosecutor would be able to prosecute an offender for failing to conduct themselves safely or provide a safe environment for others, without having to establish this failure as being intentional.
It is anticipated that this change may increase the number of scenarios in which there could be a successful prosecution given there would be no need to prove subjective conscious disregard of a risk.
There are a number of other recommendations contained in the Report. These include the prohibiting of persons from insuring against health and safety fines, increasing the penalties for health and safety offences, and the amending of the model health and safety regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.
In relation to the management of risks to health and safety, the Report noted that many small businesses have said “just tell us what to do”. The report confirmed that, in effect, the risk management process involves asking the following questions:
- given what I do, what could go wrong?
- how wrong can it go?
- what are the consequences of it going wrong? and
- how can I stop it going wrong?
The report noted that there is no guidance in the model health and safety laws in relation to the last, and arguably the more significant, of these questions. To address this, recommendation 27 relates to the amending of the model health and safety laws to clarify the risk management process.
What the Report’s recommendations might mean for you
It is clear from the Report’s recommendations that health and safety laws in Australia are likely set for substantial changes in the short to medium term, and that the enforcement and compliance implications may be significant for individuals and organisations.
Earlier this year a company director, Gary Lavin of Multi-Run Roofing Pty Ltd, was sentenced to 12 months in prison (suspended after 4 months) after a Queensland jury convicted him of the Category 1 offence. We will address this case in detail in a separate article on this blog, however the case is a timely reminder that health and safety offences attract criminal liability.