Industrial manslaughter bill introduced in NSW

New South Wales is one step closer to creating a criminal offence of industrial manslaughter following the introduction of the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 into the Legislative Assembly on 4 June 2024.

The proposed amendment follows the public commitment made by the Labor Government on 19 October 2023 to enact an industrial manslaughter offence.

If passed without amendment, the Bill will insert a new Part 2A into the Work Health and Safety Act 2011 (NSW) (WHS Act) to establish an offence of industrial manslaughter which:

• may be committed by either an act or a failure to act;
• can be committed by persons conducting a business or undertaking and, significantly, officers of organisations (notably, and consistent with other jurisdictions, the offence cannot be committed by "workers");
• is committed where a "person" (be it a corporate or natural person) fails to comply with a health and safety duty, is grossly negligent in doing so and that failure causes the death of a worker or other person to whom the duty is owed. This emphasis on the cause of death makes the offence of industrial manslaughter significantly more serious than even current category 1 offences under the WHS Act, which are concerned with actions that expose persons to risk; and
• crucially, carries significant maximum penalties on a conviction, with fines of up to $20 million for companies, and up to 25 years' imprisonment for individuals.

In contrast to current offences under the WHS Act, for which prosecutions must be commenced within two years of the alleged offence being committed, there is no limitation period on when a prosecution for industrial manslaughter may be commenced after a workplace death.

If passed, the Bill expressly provides that "gross negligence" by a body corporate can be established, where a prosecutor can point to:

• inadequate corporate management, control or supervision of conduct; or
• a failure to provide adequate systems for conveying relevant information to relevant persons within the organisation.

The Government has also indicated that a specialised unit for prosecuting industrial manslaughter offences will be established within the NSW Office of the Director of Public Prosecutions, rather than falling within the remit of the current WHS regulator, SafeWork NSW.

If passed, this would leave Tasmania as the sole remaining state or territory yet to enact industrial manslaughter laws (see our previous Australia-wide analysis here). However, with the introduction of its own Bill late last month, the offence is likely to be operative in every Australian jurisdiction very soon.

For further information or guidance on how the introduction of an industrial manslaughter offence may impact your organisation, please contact our workplace safety experts.