#33 - National WHS Update: Industrial Manslaughter Laws and the Prohibition of Insurance
Description
Industrial manslaughter may soon be an offence in almost all Australian jurisdictions. Recent amendments in certain jurisdictions have also introduced the recommendation of the 2019 Boland Review to prohibit insurance and indemnities for WHS penalties. In this episode of Employment Law for the Time Poor, join Emily Haar, Partner, and Joseph Hyde, Associate, for a review of the current status of these provisions, with a particular focus on the South Australian proposed industrial manslaughter legislation.
With Labor governments having been recently elected in South Australia, New South Wales, as well as federally, the issue of industrial manslaughter is back on the agenda.
South Australia, New South Wales, and Tasmania are the only remaining States that have not yet expressly legislated for this offence. However, public consultation on South Australia's draft Work Health and Safety (Industrial Manslaughter) Amendment Bill has finished, with the Government now considering the feedback that was provided. The recently elected NSW Labor Government had attempted to introduce industrial manslaughter legislation in 2021. While there is no current Bill before parliament, it is likely to be on the Parliamentary agenda.
At the Commonwealth level, the national model WHS laws are planned to be amended to include the offence of industrial manslaughter, following Australia's WHS ministers agreeing to the move in late February 2023.
The offence generally captures negligent or reckless conduct of a person conducting a business or undertaking (PCBU) or its officers that breaches health and safety duties and causes the death of a person to whom a duty was owed. However, the details of the offence vary slightly in each jurisdiction.
| Jurisdiction | Law in force | Law being considered | Maximum penalties | Elements of offence | Prohibition against insurance |
| SA |
| ✓ | Body corporate: $15 million. Individuals: 20 years | Would apply to officers or individuals acting as PCBUs who engage in reckless or grossly negligent conduct causing the death of an individual to whom a health and safety duty is owed. | Not presently included in Bill |
| Vic | ✓ |
| Body corporate: nearly $18.5 million. Individuals: 25 years imprisonment. | Negligent conduct by persons, including an employer and its officers, which breaches a duty and which causes the death of an employee or member of the public | ✓ |
| Qld | ✓ |
| Body corporate: $14.375 million. Individuals: 20 years imprisonment. | A PCBU or a senior officer's conduct negligently causes the death of a worker. Includes where a worker is injured carrying out work and later dies. | X |
| WA | ✓ |
| Body corporate: $10 million. Individuals: 20 years imprisonment and/or $5 million fine. | A PCBU engages in conduct that constitutes a failure to comply with their health and safety duty, knowing it is likely to cause the death or serious harm to another person, and causes the death of an individual. Officers may also |
