With an increasing number of workplace fatalities, employers need to be aware of the offence of industrial manslaughter that is being enacted across Australian jurisdictions, with the Commonwealth and South Australia passing industrial manslaughter offences in late 2023 and New South Wales likely to table a bill this year. Tasmania is the only jurisdiction at this stage that is not proposing to introduce the offence.

Industrial manslaughter refers to the offence of recklessly or negligently failing to ensure the safety of workers, or others impacted by the business or undertaking, leading to the death of the worker or other person.

Following is a rundown of industrial manslaughter offences across the country.

Australian Capital Territory

Industrial manslaughter has been an offence in the Australian Capital Territory (ACT) since 2004. It was originally introduced under the Crimes Act 1900 (ACT) and was transferred to section 34A of the Work Health and Safety Act 2011 (ACT) on 5 November 2021 pursuant to the Work Health and Safety Amendment Act 2021 (ACT).

The maximum penalty for a person conducting a business or undertaking (PCBU) (individual) is 20 years’ imprisonment, and for a PCBU (corporate) is $16.5 million.

The offence of industrial manslaughter has not been prosecuted in the ACT.

Commonwealth

On 4 September 2023, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) was introduced to Parliament, proposing sweeping changes to the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (Cth) (WHS Act). One of the key WHS Act amendments was to criminalise industrial manslaughter at a federal level.

The offence will commence on 1 July 2024 under a new section 30A of the WHS Act but will have limited application as it only applies to the Commonwealth public sector.

The maximum penalty for a PCBU (individual) is 25 years’ imprisonment, and for a PCBU (body corporate) is $18 million.

New South Wales

Industrial manslaughter is currently not an offence in New South Wales although it existed under the former Occupational Health & Safety Act 2000.

The New South Wales Government has announced that it is committed to enacting an industrial manslaughter offence and is planning on introducing a bill to parliament in the first half of this year.

Northern Territory

The offence of industrial manslaughter came into effect in the Northern Territory on 1 February 2020 under section 34B of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).

The maximum penalty for a PCBU (individual) is imprisonment for life, and for a PCBU (corporate) is 65,000 penalty units (which is currently $11,440,000).

NT WorkSafe has charged two PCBUs with industrial manslaughter:

1. The first charge was against Kalidonis NT Pty Ltd, which is one of Darwin’s largest privately owned construction company, following a workplace incident where a man was killed after a chain allegedly failed and struck him during an excavator towing operation. WorkSafe NT has since withdrawn the charge, but the company is still facing penalties for failure to comply with its health and safety duties.
2. The second charge is against an individual, Mr Craig Williams t/a Rainbow Beach Constructions, after one of his workers fell approximately 3.2 metres through an unguarded void while he was moving cabinets to be installed.

Queensland

Queensland introduced the offence of industrial manslaughter in 2017 under section 34C of the Work Health and Safety Act 2011 (Qld).

The maximum penalty for a PCBU (individual) is 20 years’ imprisonment, and for a PCBU (corporate) is 100,000 penalty units (which is currently $15,480,000).

Queensland is the first state to record a conviction for industrial manslaughter against a body corporate and an individual. In R v Brisbane Auto Recycling Pty Ltd (2020), the company was convicted and fined $3 million, and the two directors were convicted and sentenced to 10 months’ imprisonment, with a suspended sentence, after a worker was killed by a reversing forklift truck driven by an unlicensed driver with no traffic management safety systems in place. In 2022, in the case of R v Jeffrey Owens (2022), an individual, Mr Owens, was convicted and sentenced to 5 years’ prison (suspended after 18 months) after he negligently caused the death of a worker who was crushed by a generator that fell on him from a moving forklift. 

South Australia

On 29 December 2023, the South Australian Parliament passed the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 (SA). The Bill introduces a new offence of industrial manslaughter under section 30A of the Work Health and Safety Act 2012 (SA). The Bill received royal assent and come into effect on 7 December 2023, becoming the Work Health and Safety (Industrial Manslaughter) Amendment Act 2023 (SA).

The offence will only come into effect later this year as Part 2 of the amending Act, which legislates for the offence of industrial manslaughter, indicates it will commence on a “day to be fixed by proclamation.”

The maximum penalty for a PCBU (individual) is 20 years’ imprisonment, and for a PCBU (corporate) is $18 million.

Tasmania

Industrial manslaughter is not an offence in Tasmania. While the Tasmanian Government has been the subject of mounting pressure to introduce an industrial manslaughter offence, it has not publicly committed to legislating for such an offence.

Victoria

Workplace manslaughter is an offence in Victoria pursuant to section 39G of the Occupational Health and Safety Act 2004 (Vic). It was introduced under the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic), which received royal assent on 3 December 2019 and commenced on 1 July 2020.

The maximum penalty for an individual is 25 years’ imprisonment, and for a body corporate is 100,000 penalty units (which is currently $19,231,000).

WorkSafe Victoria has charged four companies with workplace manslaughter in the last four years:

1. The first charge is against a director of a stonemasonry business after a loaded forklift tipped over and landed on a 25-year-old subcontractor at the workplace, causing the death of the worker.
2. The second charge is against a centenary bakehouse and relates to the death of a worker who fell approximately 4 metres while removing suspended ceiling panels at a warehouse.
3. The third and fourth charge of industrial manslaughter follows an incident where a 21-year-old apprentice electrician was electrocuted while performing work on a car lift at an apartment building.

Western Australia

Industrial manslaughter became an offence in Western Australia on 31 March 2022 under section 30A of the Work Health and Safety Act 2020 (WA).

The maximum penalty for a PCBU (individual) is imprisonment for 20 years and a fine of $5 million, and for a PCBU (corporate) is a fine of $10 million.

There have been no charges or prosecution of industrial manslaughter in Western Australia.