Over the past few years, there has been a push to introduce industrial manslaughter offences in a number of Australian States and Territories. Once the Western Australian legislative changes come into force (which will likely be later this year), most States and Territories will have specific industrial manslaughter legislation in place. Refer to the table below to see the nature of the offence and the maximum penalty in each State or Territory.
While New South Wales does not have specific industrial manslaughter laws, a recently passed Act noted that in certain circumstances, the death of a person at work may constitute manslaughter under the Crimes Act 1900 (NSW), which is punishable by 25 years imprisonment.
Changes in Victoria
As of 1 July 2020, a new criminal offence of industrial manslaughter has been introduced in Victoria by amendments to the Occupational Health and Safety Act 2004 (OHS Act). The offence applies to negligent conduct by an employer, other duty holders or an officer of an organisation, who breach certain duties under the OHS Act, and that breach causes the death of a person who was owed a duty. These provisions only apply to any death after 1 July 2020. The changes do not create any additional duties, but introduce higher penalties for existing duties under the OHS Act.
As outlined in the table below, the elements of the offence are:
The maximum penalties are:
Defences
There are limited defences available to a person charged with industrial manslaughter (they are the same as those available to a charge of manslaughter under the Crimes Act). They include duress, extraordinary emergency and self-defence.
Accordingly, employers (and company officers) must take all steps available to them to mitigate the risk of an industrial manslaughter charge. That includes:-
State-by-state breakdown