By Andrew Hobbs
HEALTH & Safety Handbook Editor-In-Chief Michael Selinger takes a look at the Industrial Manslaughter legislation set to be introduced in Queensland, which could send company officers to jail.
The proposed Queensland Industrial Manslaughter Laws are challenging… and are being challenged.
As recently as this week, the Australian Industry Group (Ai Group) sent a submission to the Queensland government requesting that it reconsider the introduction of those laws.
The concern expressed by Ai Group was that the process leading to the Industrial Manslaughter Legislation did not involve “any reasonable or detailed examination of the merits of the provision, including how it would work with the other parts of the Work Health & Safety Act to drive better workplace safety outcomes”.
The Ai Group submission also pointed out that the only Australian jurisdiction currently with a separate industrial manslaughter offence is the ACT – where there have not been any successful prosecutions under those laws.
The Ai Group pointed out that the ACT underwent a major review of declining safety in its construction industry after a number of workplace fatalities, despite having had the industrial manslaughter provisions in place since 2004.
Similar concerns about the proposed new laws have been raised by the Queensland Law Society. In a media release in August 2017, the Queensland Law Society President Christine Smyth said the proposed changes to the Workplace Health & Safety Laws were unwarranted because the Work Health & Safety Act (2011) and the State’s criminal code already provided offences, including manslaughter, to deal with such criminal wrongs in the workplace.
In a series of stringent comments, Ms Smyth said that while there “does need to be an increase in Workplace Health and Safety Queensland’s resources so that appropriate cases can be prosecuted… layering a new law on top of an existing law is not the answer to improving processes and simply defies common sense”.
In emphasising the adequacy of the existing laws, Ms Smyth stated that “individuals, including senior officers of a corporation, can be held criminally responsible for deaths, such as the Dreamworld tragedy”.
The Bill, which is to be voted on in Queensland’s hung Parliament this week, requires the backing of three of the five crossbench MPs to pass the law. As heavy lobbying has commenced with those crossbenches, The Australian has reported that the Queensland Resources Council intends to campaign against the government at the upcoming State election if the industrial manslaughter offence is to be extended to the mining sector.
The new legislation … explained
Offence by PCBU
On its current drafting, the new legislation will provide an offence of industrial manslaughter for a person conducting a business or undertaking (PCBU). A PCBU will commit an offence if:
(a) a worker dies in the course of carrying out work for the business or undertaking (or is injured in the course of carrying out work for the business or undertaking and later dies); and
(b) the PCBU’s conduct causes the death of the worker; and
(c) the PCBU is negligent about causing the death of the worker by the conduct.
If the offence is proved to the criminal standard, then the PCBU will face a penalty of up to $10 million if it is a corporation or, if the PCBU is an individual, will face up to 20 years’ imprisonment.
Offence by senior officer
There is a separate offence of industrial manslaughter for a senior officer.
The offence for the senior officer is cast in the same terms as the offence for the PCBU. That is, a senior officer will be guilty of an offence if a worker has died in carrying out work for the PCBU and the senior officer’s conduct causes the death of the worker and the senior officer is negligent about causing the death of the worker by the conduct.
If the offence is proved, there is no monetary penalty but imprisonment of up to 20 years can be imposed.
The definition of ‘senior officer’ extends the meaning of officer under the current Work Health & Safety Act (2011) to mean a person who is an executive officer of the company or the holder of an executive position (however described) in relation to the PCBU, who makes, or takes part in making, decisions affecting all, or a substantial part, of the PCBU’s functions.
An executive officer is then separately defined to mean a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.
On its face, there could well be confusion as to which persons the provisions will apply to, particularly, in relation to whether the person “is concerned with, or takes part in, the corporation’s management”.
The legislation also provides that a person’s conduct ‘causes’ death if it “substantially contributes to the death”. Again, there is likely to be confusion as to whether or not someone’s conduct causes the death and whether the action or inaction of any particular individual has substantially contributed to the death or not.
Issues for officers
One of the most imminent issues for senior officers of organisations in Queensland following the introduction of this law will be their response to any investigation into a fatality.
It is not clear at this stage how the WHS Prosecutor (a newly created role under the legislation), armed with the potential for a new charge to be brought against a senior officer, will interact with the safety regulator in its exercise of compulsory investigative powers to obtain evidence from a senior officer.
For example, under the current law, there is no protection from self-incrimination by reason of a right to silence. Such a right would normally be afforded by police to an individual being charged with a criminal offence of manslaughter.
Assuming the inspector is exercising their statutory powers, responses provided by an individual under compulsion from a Work Health and Safety inspector will have the protection that those answers cannot be used against the individual. That assumes the inspector gathers evidence by using those powers.
Given the potential for the regulator to bring industrial manslaughter charges against a senior officer, a decision may need to be made at an early stage of the investigation as to how evidence will be obtained so that such a charge is able to be considered. Further, interaction with police who may be involved at the initial stages of an investigation will also need to be considered.
The out-take for a senior officer under the new laws (assuming you can determine whether you are a senior officer or not) will be to obtain separate independent legal advice from that being sought by the PCBU. This will be necessary as to assess the exposure of the senior officer to prosecution and how they should participate in a workplace investigation by the regulator.
Separately, for any internal investigation undertaken by the PCBU into a fatality, whether under legal professional privilege or not, a senior officer will now need to be aware that they could personally be exposed to criminal prosecution, including by the use of evidence gathered by the PCBU itself in investigating the fatality.
Watch this space
The legislation is still being debated and may vary from its current drafting. However, assuming that the legislation does pass and becomes operational, it will be important to watch developments by the Queensland regulator as to its proposed response.
It will also be a significant departure from the harmonised approach that all States and territories (other than Victoria and Western Australia) have largely embraced to date.
The outcome could be that other jurisdictions look to replicate the laws, although it is early days.