Commonwealth to introduce industrial manslaughter offence

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

What you need to know

• The Federal Government has introduced a Bill for the purpose of closing the "loopholes" in Commonwealth employment laws. The Bill proposes various changes to Commonwealth work health and safety legislation, including to introduce industrial manslaughter provisions at the Federal level that would apply to Commonwealth public sector and Comcare covered licensees.
• The Bill builds on recent changes to the Model WHS Act which introduced a jurisdictional note and model penalties for industrial manslaughter which may be adopted by States and Territories.
• The proposed new offence and significantly increased penalties that could apply following a workplace death if the Bill is passed would heighten the importance for PCBUs to take proactive approaches to the management of safety risks.

The Federal Government has introduced a Bill for the purpose of closing the "loopholes" in employment laws. The Bill proposes various changes to Commonwealth work health and safety legislation, including to introduce industrial manslaughter provisions at the Federal level that apply to Commonwealth public sector and Comcare covered licensees.

The Bill adopts a recommendation of the 2018 Boland Review and the recommendations of the Senate Committee report into industrial deaths (They Never Came Home). (See our 2019 Alert)

If passed, persons conducting a business or undertaking (PCBU) and their officers, who are covered by the Commonwealth WHS Act, would face a new industrial manslaughter offence, if “gross negligence or recklessness” is found to have contributed to the death of a worker. Penalties for individuals would be up to 25 years' imprisonment and body corporates face a penalty of up to $18 million.

The laws would impose the equal highest penalties for industrial manslaughter in Australia – with Victoria.

The new offence comes after recent changes to the Model WHS Act which introduced a jurisdictional note (that each jurisdiction may insert local provisions to create an offence of industrial manslaughter in addition to the highest Category 1 offence) together with model penalties, following Australian WHS ministers agreeing to this change in late February 2023. The model penalties are 20 years' imprisonment for an individual, and a maximum penalty of $18 million for a body corporate. The changes to the model WHS Act by Safe Work Australia may be adopted by States and Territories. The ACT, Queensland, Victoria, Western Australia and the Northern Territory currently have industrial manslaughter offences in place. The South Australian Government introduced a Bill in August 2023 for industrial manslaughter reforms, and the NSW Government committed in its 2022 election to introduce the offence into the NSW Act (see our Alert).

The Bill is proposed to commence on 1 July 2024, and would only apply in relation to conduct engaged in on or after 1 July 2024. The Bill is yet to be passed by the Parliament, however, and has been allocated to a Senate Committee for inquiry, which is due to report by February 2024.

How it will work

The proposed reforms will apply to PCBUs covered by the Commonwealth WHS legislation – being Commonwealth departments, agencies and other Commonwealth entities, as well as non-Commonwealth licensees.

Under the reforms, a PCBU or an officer of a PCBU will commit the offence of industrial manslaughter where they:

• have a duty to ensure health and safety
• intentionally engage in conduct which breaches that duty; and
• are reckless or negligent as to whether the conduct would cause the death. Conduct will be considered to cause a death where it substantially contributes to the death.

The pre-existing 'Category 1 reckless conduct' and 'Category 2 failure to comply with a health and safety duty' offences will also still apply in circumstances where the offence of industrial manslaughter cannot be made out. The Category 1 offence would also be amended by the Bill to capture officers of a person conducting a business or undertaking (to clarify this point which had previously been subject to some doubt). Category 2 remains unchanged.

The penalty for a Category 1 offence for an individual is proposed to increase to 15 years' imprisonment or $3 million or both (for individuals), and $15 million for a body corporate.

Notably, there will also be no limitation period for bringing proceedings for an industrial manslaughter offence. If a court was to consider a person was not guilty of industrial manslaughter but was guilty of a Category 1 and 2 offence, then the usual two year time limit would not apply to these alternate verdicts.

The absence of limitation periods could make it difficult for a person to defend themselves years after the event. However, the Explanatory Memorandum explains that any limitation on the right to a fair trial arising from the removal of the limitation periods is considered by the Government to be justifiable to pursue a legitimate objective relating to workplace safety and is consistent with manslaughter offences in the general criminal law.

The Bill would also remove the ability of a PCBU to seek an Enforceable Undertaking if charged with an industrial manslaughter offence.

Defences to the offence will be available where the PCBU can prove it took reasonable precautions to prevent the conduct.

What you need to do

The laws have application to Commonwealth departments, agencies and other Commonwealth entities, as well as non-Commonwealth licensees. While they will not apply to the private sector or State/Territory public sector employers, they signal the continuing trend of the introduction of more significant offence provisions and higher penalties including custodial sentences for individuals.

The proposed new offence and significantly increased penalties that could apply following a workplace death if the Bill is passed would heighten the importance for PCBUs to take proactive approaches to the management of safety risks.

Authors: Trent Sebbens, Partner; Heidi Kornman, Lawyer; and Erina Higgins, Graduate.