Industrial manslaughter laws are being introduced or considered in several Australian states and territories to criminally prosecute organizations and individuals responsible for workplace deaths through negligence. Queensland has already introduced industrial manslaughter offenses, while Victoria intends to do so. Other jurisdictions like the Northern Territory and South Australia are also considering such laws. The document discusses the state of industrial manslaughter laws in different regions, potential reforms being proposed, recent criminal prosecutions related to workplace deaths, and practical tips for organizations to address risks around industrial manslaughter.

1. 0
Industrial Manslaughter:
Coming soon to a jurisdiction near you
22 May 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 not confirmed it will implement the
recommendations but will “look at progressing industrial
manslaughter laws” in the future.
QLD - Current Status: Yes
Where: See s34C 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: $13 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.
Government has not indicated an intention to
introduce an IM offence.
ACT - Current Status: Yes
Where: See s49C, 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 and 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 a 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 a criminal IM offence, with 20 years
imprisonment for individuals found guilty of
acting recklessly.
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 wit 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 20 May 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 WM 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 million fine for corporations and 20 years’ imprisonment for individuals
Northern Territory Recommendation (Government’s intention unclear)
• Lyons Review recommended creation of 2 criminal IM offences 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 million fine 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 Employer’s 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

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
University of Canberra Crane Collapse
(August 2016 – Ongoing)
Crane driver charged with manslaughter for
the crane collapse at the University of
Canberra Hospital construction site. 9
defendants in total (bodies corporate and
individuals) facing various charges.
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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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