2019 Tasmanian Symposium & Trade show Alena Titterson

1. 0
State of the Nation:
The Irrepressible Rise of Industrial
Manslaughter Offences
26 September 2019
Alena Titterton
Partner – Clyde & Co

2. 1
Agenda
1. Industrial manslaughter – State of the nation
2. Potential industrial manslaughter reforms
3. Criminal prosecutions for health and safety incidents
4. What industrial manslaughter means for your organisation
5. Practical tips for dealing with the developments

3. 2
Industrial Manslaughter – State of the Nation
NT - Current Status: No
Lyons Review recommended creation of new criminal
IM offences.
Government has confirmed support for 23 of the 27
recommendations including IM offences. IM offences
are being implemented as part of Phase 1 in a 5-year
three-phase implementation plan for the supported
recommendations.
QLD - Current Status: Yes
Where: See ss 34C and 34D of the WHS Act 2011 (Qld)
When: Since 23 October 2017
Who: PCBUs and senior officers
What: PCBU or senior officer’s negligence is responsible
for a worker’s death during the course of their work
Penalties: $10 million fine for corporations and 20 years
imprisonment for individuals
NSW - Current Status: No
Labor Opposition lost the March 2019 state election. The
Opposition had committed to introduce imprisonment terms
for individuals morally culpable for a workplace death.
Following Christopher Cassaniti’s death, his parents have
commenced a campaign for Christopher’s Law; for
Queensland-style offences to be adopted. Minister for
Better Regulation and Innovation Kevin Anderson has
confirmed the state government is considering IM laws but
is awaiting outcome of Safe Work Australia RIS process on
Boland Review recommendations.
ACT - Current Status: Yes
Where: See ss 49C, 49D and 49E of the Crimes Act
1900 (ACT)
When: Since 1 March 2004
Who: Employers and officers
What: Recklessly or negligently causing the death of
a worker by their conduct
Penalties: $1.5 million fine for corporations (up to $5
million with court ordered publicity and projects);
$300,000 for individuals and 20 years imprisonment or
both
VIC - Current Status: No
Government proposal to introduce a criminal IM
offence modelled on QLD offence this term of
government.
Workplace Safety portfolio established a special
reference group created to consult with families on
the drafting of the offence. Stakeholder consultation
has commenced.
TAS - Current Status: No
Labor Opposition lost the March 2018 state election
with a promise of an IM offence.
Government has not indicated an intention to
introduce an IM offence. Next state election due in
2022.
SA - Current Status: No
The Greens have introduced a private members IM
Bill.
Labor Government lost the March 2018 election
with promise of an IM offence. Liberal Government
has not indicated an intention to introduce an IM
offence. Next state election due in 2022.
WA - Current Status: No
Government has announced it intends to create two
classes of criminal IM offences.
Class one: most serious offence 20 years' imprisonment
for individual conducting or undertaking a business.
Class two: 10 years' imprisonment for negligent
behaviour.
Also $10 million fine for corporations.
Commonwealth - Current Status: No
Parliament: 2018 ‘They never came home’ Senate inquiry
recommended all States and Territories introduce IM
offences modelling the QLD offence.
Government: Considers current criminal manslaughter laws
capable of prosecuting all those responsible for a workplace
death.
Labor Opposition: Lost the 2019 election with a
commitment to introduce national IM offence modelled on
QLD IM offence and a national advisory committee on
workplace deaths. Next federal election due in 2022.
Current as at 24 September 2019

4. 3
Potential Reforms
Boland Review (Released 2019)
WHS Ministers to consider in 2nd half of 2019
1. Recommended increase to penalties in line with CPI increases on an ongoing basis
(Recommendation 22)
2. Recommended model Category 1 offence expanded to include ‘gross negligence’
(Recommendation 23a)
3. Recommended creation of model IM offence (Recommendation 23b):
What: PCBU or Officer’s gross negligence is responsible for the death of a person
owed a WHS duty
Who: PCBUs and Officers
Attribution: Corporation’s conduct includes conduct of employees, agents and
officers and conduct on behalf of corporation
Standard: Require ‘gross negligence’
4. Recommended development of national sentencing guidelines (Recommendation 25)
5. Recommended prohibition against insurance for WHS monetary penalties
(Recommendation 26)

5. 4
Potential Reforms
Victorian Proposal (Due this term of government)
• Government has proposed creation of criminal IM offence in OHS Act 2004 (Vic):
What: Employers or ‘Individuals’’ negligent conduct causes death of a worker, supplier,
contractor, routine maintenance workers, visitors and public
Who: Employers and Individual officers
Standard: Require criminal negligence
Penalties: $16 millionfine for corporations and 20 years’ imprisonment for individuals
Northern Territory Proposal (To be introduced by the end of the year in line with Phase 1)
• Lyons Review recommended creation of 2 criminal IM offence in WHS Act 2011 (NT):
What: Separate offences where Senior Officer or an Employer’s conduct negligently or
recklessly causes death of worker
Who: Employers and Senior Officers
Standard: Require criminal negligence
Penalties: $10 millionfine for corporations and life imprisonment for individuals
South Australian Private Members Bill
• Greens MLC introduced the Work Health and Safety (Industrial Manslaughter) Amendment Bill
2019 (SA):
What: Separate offences where an Employers or an Officer’s negligence or reckless
indifference to substantial risk of serious harm causes death to a person
Who: Employers and Officers
Penalties: 20 years’ imprisonment for individuals and $1,000,000 fine for corporations
Defence: Act or omission occurred in course of emergency or authorised by Law
Western Australia Intention
• The WA Government has announced it intends to create two classes of criminal IM offences:
What: Separate offences where an Employers or an Officer’s conduct causing the death of a
person is most serious will attract a class one offence or where there is negligent behaviour
causing the death of a person will attract a class two offence
Who: Employers and Officers
Penalties: 20 years’ imprisonment for individuals and $10,000,000 fine for corporations

6. 5
Recent Reforms
Work Health and Safety Act 2011 (Qld)
• Introduction of IM offences in sections 34C and 34D in October 2017:
What: PCBU or Senior Officers’ negligence is responsible for the death
of a worker during the course of their work
Who: PCBUs and Senior Officers
Standard: Require gross negligence
Penalty: $13 million fine for corporations and 20 years imprisonment for
individuals
Critiques of industrial manslaughter offence
• Lower standard of culpability than Category 1 offence
• Significantly heavier sentence than Category 1 offence
• Broader set of officers liable than Category 1 offence
• No limitation period

7. 6
Health and Safety Criminal Prosecutions
QLD
Queensland Police Service v D’Alessandro
(October 2016 – Ongoing)
Builder charged with manslaughter in
relation to double fatality at Eagle Farm
racecourse construction site.
QLD
Queensland Police Service v Norris (April
2017 – Ongoing)
Man charged with manslaughter following
workplace death at Springfield Lakes
construction site.
NSW
R v Lewry; R v Lees (April 2019)
Company manager and mechanic acquitted
of manslaughter charges following bus
crash in Kangaroo Valley.
ACT
Multiplex Crane Collapse (August 2016 –
Ongoing)
Crane driver charged with manslaughter for
the crane collapse at the University of
Canberra Hospital construction site. A
number of WHS charges have been laid
against others.
VIC
R v Lamb; R v Dynamic Demolition Pty Ltd
(1997)
Demolition company and director acquitted
of manslaughter charges following worker’s
fall to death through a ceiling skylight.
SA
R v Colbert [2017] SASCFC 29 (April 2017)
R v Colbert [2016] SASCFC 12 (February
2016)
Truck company owner convicted of
manslaughter over driver’s death and
sentenced to 10.5 years goal.

8. 7
What Does This Mean For Organisations?
1. How do we deal with regulators?
2.
How do we deal with conflicts of interest between
individuals and organisations?
3.
How do we deal with the newfound focus on incident
consequences?

9. 8
Practical Tips
1.
2.
3.
4.
5.
Update your incident investigation protocols to include
specific fatality protocols and update incident response
training and conduct emergency drills
Take a proactive approach to understanding the powers
of different regulatory and enforcement agencies
Establish legal panel for representation of multiple
interests
Brief officers on developments in refresher due
diligence sessions and have officers commission critical
WHS risk analysis
Conduct more thorough investigations of serious near
miss / near hit incidents

10. 9
If you want to read more, see
Michael Tooma’s CCH Due Diligence Series:
• Duty of Officers – 2nd Edition
• Incident Notification, Management & Investigation – 2nd Edition
• Horizontal and Vertical Consultation – 2nd Edition
• Dealing with Regulators – 2nd Edition
• Persons Conducting a Business – 2nd Edition
Questions

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permission of Clyde & Co. Clyde & Co Australia is a multi-disciplinary partnership registered with the Law Society of New South Wales. © Clyde & Co 2019
Want more information? Contact us:
Alena Titterton
Partner | Clyde & Co
Direct Dial: +61 2 9210 4577
Mobile: +61 439 077 702
Email: alena.titterton@clydeco.com
Download the ClydeCovered incident notification app:
https://itunes.apple.com/au/app/clyde-covered/id1146658020?mt=8