Industrial manslaughter soon to be an offence in almost every jurisdiction

On 19 October 2023 the NSW Labor Government made a public commitment to enact an industrial manslaughter offence and review its existing work health and safety laws.¹

The consultation process is expected to commence in the coming weeks, with SafeWork NSW reaching out to work health and safety experts, business groups, legal stakeholders and the families of people killed at work.

This follows an acknowledgement earlier this year from the work health and safety ministers from the states, territories and Commonwealth that more must be done to prevent workplace deaths and serious injuries. The Model Work Health and Safety (WHS) Act was amended on 27 July 2023 to introduce a jurisdictional note and model penalties for industrial manslaughter which may be adopted by states and territories. The maximum penalty is $18 million for bodies corporate and 20 years' jail for individuals, which is significantly higher than the penalty currently in place in some jurisdictions. However, the changes do not have any effect unless enacted in each jurisdiction.

Recent commitments by the Commonwealth, South Australia and New South Wales governments to introduce standalone industrial manslaughter offences have renewed union calls in Tasmania to do the same. Tasmania is now the only state or territory to have not yet made any commitment to introduce the offence.

Click on the map below to view the status of industrial manslaughter laws in each Australian jurisdiction.

Australian Capital Territory

• The offence of industrial manslaughter commenced on 1 March 2004 under the Crimes Act. It was later introduced into the Work Health and Safety Act 2011 (ACT) on 5 November 2021.
• The current maximum penalty is up to $16.5 million in fines for a body corporate and 20 years' imprisonment for an individual.

Queensland

• The industrial manslaughter provisions under Part 2A of the Work Health and Safety Act 2011 (QLD) came into effect on 23 October 2017.
• The offence only applies to the death of a worker.
• The maximum penalty for a body corporate is 100,000 penalty units (currently $15,480,000) in fines, or 27 years' imprisonment for an individual.
• On 11 June 2020 Queensland recorded the first conviction against a body corporate, with a fine imposed of $3 million.² On 31 March 2022 the first individual was convicted and sentenced to five years’ imprisonment suspended, after having served 18 months’ imprisonment, for an operational period of five years.³

Northern Territory

• The offence of industrial manslaughter came into effect on 1 February 2020, although previously individuals could be prosecuted under the Criminal Code.
• The maximum penalty is imprisonment for life for an individual, or 65,000 penalty units (or $10.2 million) for a body corporate.

Victoria

• The offence of workplace manslaughter commenced on 1 July 2020 when section 39G of the Occupational Health and Safety Act 2004 (Vic) commenced.
• No limitation period applies to a prosecution of industrial manslaughter, unlike other offences under the OHS Act.
• The maximum penalty is 100,000 penalty units (which currently equals a fine of up to $19,231,000) for a body corporate and 25 years' imprisonment for a natural person.

Western Australia

• Section 30A of the Work Health and Safety Act 2020 (WA) commenced on 31 March 2022.
• The maximum penalty is 20 years' imprisonment and a fine of $5 million for an individual, and a fine of $10 million for a company.

South Australia: Proposed offence

• The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 was introduced on 6 July 2023 with the proposed addition of new section 30A of the Work Health and Safety Act 2012 (SA).
• The proposed maximum penalty is a fine of up to $18 million for a body corporate and 20 years' imprisonment for a natural person.

Commonwealth: Proposed offence

• Introduced as part of the Closing Loopholes Bill on 4 September 2023. More information about the Bill is available here.

New South Wales: Proposed offence

• No Bill has been introduced yet, however on 19 October 2023 the NSW Labor Government committed to an offence of industrial manslaughter. SafeWork NSW will shortly commence a consultation process, with an aim to introduce an offence to Parliament in the first half of 2024.
• Currently, the death of a person at work could constitute manslaughter under the State Crimes Act 1900 (NSW) or be prosecuted as a Category 1 offence for gross negligence or reckless conduct.
• Maximum fines for Category 1 WHS offences in NSW (involving gross negligence or reckless conduct) will increase on 1 July 2024 from $3,992,492 to $10,424,983 for bodies corporate; $798,383 to $2,168,029 for officers and individuals defined as PCBUs; and $399,479 to $1,041,992 for other individuals.
• From 24 October 2023, the NSW WHS Act now imputes conduct by officers, authorised agents or workers to become the conduct of the body corporate.

Tasmania

• The Tasmanian Liberal Government has not made any commitment to introduce a standalone industrial/workplace manslaughter offence and no Bill has been introduced to Parliament.
• Reckless conduct remains as the Category 1 offence in that state and carries a maximum penalty of $3,000,000 for a body corporate.

For more information on recent and upcoming changes to work health and safety laws, please contact our experienced employment and workplace team.

¹ Media release: Industrial manslaughter to be introduced in NSW

² R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113. Two officers were also convicted of charges of reckless conduct - category 1, and each had sentences to 10 months' imprisonment suspended.

³ Court report: First conviction of an individual for industrial manslaughter in Queensland