Workplace manslaughter (also referred to as industrial/corporate manslaughter) has been an offence in the United Kingdom since 2008. Closer to home, Victoria and the Northern Territory have joined the Australian Capital Territory (ACT) and Queensland as the latest Australian jurisdictions to pass workplace manslaughter laws.

Victoria

On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 was passed in the Victorian Parliament.[1]

Essentially, employers who negligently cause a workplace death (including the death of a member of the public) will commit this new offence. Conduct will be negligent if it involves:

a ‘great’ falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in; and
a high risk of death, serious injury or serious illness.

This applies to both self-employed persons and officers but excludes volunteers.

The maximum penalties for committing the offence are severe, being the highest under the Australian workplace safety legislation. Surpassing even the existing and proposed maximum penalties for equivalent offences in Queensland, the ACT and the Northern Territory, the penalty for individuals is up to 20 years’ imprisonment, and for body corporates fines of up to $16.5 million.

Further, the usual two-year time limit to bring safety prosecutions will not apply to this offence. The amendments allow a proceeding for a workplace manslaughter to be brought at any time, which effectively means that employers could be charged many years after a fatality occurs.

Northern Territory

Next to join the ACT, Queensland and Victoria was the Northern Territory, where the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 passed in the Northern Territory Parliament on 27 November 2019.

Under a new section, 34B, a person will commit industrial manslaughter if:

the person has a health and safety duty; and
the person intentionally engages in conduct; and
the conduct causes the death of an individual to whom the health and safety duty is owed; and
the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.

Volunteers can only be found liable for this offence if it falls under their duty in sections 28 and 29 of the Work Health and Safety (National Uniform Legislation) 2011.

The maximum penalty for individuals who commit this offence is imprisonment for life and for body corporates, a maximum fine of $10,205,000.

The limitation period does not apply to prosecutions for industrial manslaughter offences. However, under the amendments, the regulator will only be able to bring proceedings for industrial manslaughter if the Director of Public Prosecutions consents.

The amendments also allow a person to request the regulator to commence a prosecution for industrial manslaughter where a prosecution has not been initiated within six months of the breach (but no later than 12 months after the breach).

Both the Victorian and the Northern Territory bills are awaiting royal assent, with the Victorian bill to take effect on 1 July 2020 or earlier. A date for the Northern Territory bill is yet to be notified.

Comment – What does this mean for New Zealand?

As it currently stands, there is no workplace manslaughter offence in New Zealand. This means that any prosecution of an individual or a person conducting a business or undertaking (a PCBU) is limited to offences under the Health and Safety at Work Act (HSWA).

But Brad Alcorn of Fee Langstone says that it is important to note that the drafting of New Zealand’s HSWA borrowed heavily from its Australian equivalent. Further, the New Zealand Government has been outspoken about the merits of introducing a corporate manslaughter law. The Justice Minister, the Hon Andrew Little, has been an advocate for such a law.

Quite how such a law might operate (or in fact should operate) in the context of the New Zealand business landscape – of which 97% are SMEs – remains to be seen. However, given the political drive to improve New Zealand’s workplace safety record and the continuing poor comparison figures to our Australian counterparts, Brad believes this is an issue that is unlikely to go away any time soon.

[1] This new offence has also been inserted under a new Part 5A of the Occupational Health and Safety Act 2004 (Vic).