Health And Safety Law Reform: Industrial Manslaughter Sweeps The Nation

The wave of industrial manslaughter offence reforms currently sweeping Australia presents both risks and opportunities for the insurance market.

For many years in Australia, the appetite for industrial manslaughter offences on the statute books has waxed and waned. But the 2016 events in Queensland that resulted in multiple fatalities at Eagle Farm and Dreamworld gave the push for such reforms additional impetus. The Queensland Government announced a Best Practice Review of Workplace Health and Safety Queensland that included recommendations for industrial manslaughter provisions in the wake of those incidents.

What does the legislation say?

Queensland's Work Health and Safety and Other Legislation Amendment Act 2017 (WHS Amendment Act) introduced industrial manslaughter provisions into Part 2A of the Work Health and Safety Act 2011 (Qld) (WHS Act) for both senior officers and PCBUs. The WHS Amendment Act creates two criminal offences of industrial manslaughter under sections 34C and 34D. Under the provisions, an 'employer' and a 'senior officer' commit an offence where:

a worker dies in the course of carrying out work (or is injured and later dies); the PCBU or senior officer's conduct causes the death of the worker; the PCBU or senior officer was negligent about causing the death of the worker by the conduct. From the legislative drafting of the industrial manslaughter provisions, it appears that little regard was had to the broader legislative framework within which the new offences would sit. For the purposes of the industrial manslaughter offence, a 'senior officer' is defined as an executive officer of the corporation (if the person is a corporation) or, otherwise, the holder of an executive position in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person's functions. This is different from the section 9 Corporations Act 2001 (Cth) definition of an officer which applies for the purposes of the officer due diligence obligation in section 27 of the WHS Act and will capture a broader group of individuals than those captured by the due diligence obligation.

The criminal standard of negligence applies to the offences and in contrast to the other WHS Act offences, no time limitation period applies to the industrial manslaughter offences. The maximum penalty for the industrial manslaughter provisions is $10 million for an organisation and up to 20 years imprisonment for...