The truck’s brakes were found to be in total disrepair and had very little braking capacity for several weeks. In that case the director was prosecuted for manslaughter under the South Australian Criminal Law Consolidation Act 1935.
Despite these cases, the penalties for industrial manslaughter are significantly higher. For example, in Victoria the offence includes fines of up to 100,000 penalty units (currently equating to $16,522,000) for companies, and jail terms of up to 20 years for company officers, who negligently cause a work-related death.
In the Northern Territory a company could face fines of up to 65,000 penalty units, (currently equating to $10,205,000) and imprisonment for life if the person had a health and safety duty, and intentionally engaged in conduct that breached duty which caused a death. The person must have been reckless or negligent about the conduct that breached the health and safety duty that caused the death.
In Western Australia, as part of moves to adopt the national model WHS laws, a two tiered offence is proposed that includes a maximum penalty of 20 years imprisonment and a $10 million fine for companies.
While the approach in each jurisdiction differs, broadly, the offence can be triggered if:
- there is a death at a workplace; and
- the business/individual owed a work, health and safety duty to that person; and
- the actions of that business or individual involved grossly failed in the standard of care that a reasonable person would exercise in the circumstances, and such a high risk of death would follow that the act or omission merits criminal punishment.
In various ways, the offences also look to sheet home responsibility to individual directors and officers of companies, making both the business and individuals potentially culpable for a workplace death.
While we will have to wait to see what the impact of these new offences will have on safety onsite, it is worth noting that a 10-year review of the corporate manslaughter offence under the relevant UK WHS Act found that there had been 25 convictions and a handful of acquittals and dismissals.
Although the number fell below the predicted 10-13 corporate manslaughter prosecutions per year5, with a statistically low corporate manslaughter conviction rate, the consequences on individuals and companies speak for themselves6.
HIA will provide members with information on the laws as further details become available.
1. Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2017, p.8. 2. Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2018, p.8. 3. Ibid, p.10. See also: Work-related Traumatic Injury Fatalities, Australia, Safe Work Australia, 2017, p.10. 4. Department of Workplace Health and Safety v Allscaff Systems and Ralph Michael Smith 2015. 5. Roper, V, The Corporate Manslaughter and Corporate Homicide Act 2007 – A 10 year review, The Journal of Criminal Law, 2018, vol.82(1), pp. 53, 64. 6. Ibid, p 74.