By Duncan Fletcher, partner and Oliver Marshall, lawyer
Western Australian Work Health and Safety Bill 2019
In a snapshot
- The long awaited Work Health and Safety Bill 2019 (WA) was tabled in the Western Australian Parliament on 27 November 2019 and is based on the harmonised model Work Health and Safety Act.
- The WA Bill introduces two separate industrial manslaughter offences and has an expanded application to potentially all risks to health (broadly defined).
- Insurance policies with indemnities will need to be reviewed or risk being void.
A little more detail
On 27 November 2019, the Work Health and Safety Bill 2019 (WA) (WA Bill) was tabled in the Western Australian Parliament. The WA Bill applies generally to all workplaces in Western Australia and makes provision for specific industries in separate sets of proposed regulations. Currently, there are three sets of proposed regulations, one covering general workplaces in WA, one set will cover the mining industry and another set will cover the petroleum and geothermal energy industries. The regulations however remain subject to the outcomes of the public consultation period which closed on 26 November 2019.
The most notable feature of the WA Bill is the introduction into WA of the criminal offence of industrial manslaughter, under which corporations and individuals, including directors or other corporate officers may be convicted. The WA Bill introduces two separate industrial manslaughter offences. The first being Industrial manslaughter – crime offence, carrying the maximum penalties of imprisonment for 20 years for an individual and a fine of $10 million for a body corporate. This offence includes the element that the accused person engaged in conduct knowing it was likely to cause the relevant death and the person engages in that conduct in disregard of the likelihood of death.
The second offence is the Industrial manslaughter – simple offence and is punishable by the maximum penalties of imprisonment of up to 10 years for an individual and a fine of $5 million for a body corporate. The simple offence contains only 3 elements, centring on the causation of death by the PCBU.
However in in order for an officer of the Person Conducting a Business or Undertaking (PCBU) to be convicted of either industrial manslaughter offences under the WA Bill, it must also be proven that the PCBU’s conduct was attributable to any neglect on behalf of the officer, or that it was engaged in with the officer’s consent or connivance.
The WA Bill also expands the scope of application by defining “health” in its broadest sense to cover both physical and psychological health. This means that the WA Bill potentially covers psychological risks to health such as stress, fatigue and bullying.
Another notable feature of the WA Bill is that it deems certain parts of insurance policies of no effect if they indemnify a person for liability under the WA Bill. This means that only those parts of insurance policies addressing liability for penalties under the WA Bill will be deemed void, rather than being “illegal” as announced by the WA Industrial Relations Minister Bill Johnston in this press release and reported in some commentary.
The text of the WA Bill is available on the WA Parliament Website together with a comprehensive explanatory memorandum.
Victorian and Northern Territory Offences
The Victorian parliament today passed the Workplace Safety Legislation (Workplace Manslaughter and Other Matters) Act 2019 (Victorian Amendment Act).
The primary objective of the Victorian Amendment Act is to introduce the offence of industrial manslaughter in Victoria, which was an election commitment by the Andrews Labor Government. The Victorian Act does so whilst also providing the highest monetary penalty under a work health and safety law in Australia at $16.5 million.
The Victorian Amendment Act creates a single offence of Workplace Manslaughter applicable to both PCBUs and officers of PCBUs. The offence is structured so that negligent conduct is the central element, supported by safety duty and causation elements. That is, an accused person will be guilty if they engage in negligent conduct, that breaches an applicable safety duty owed to a person and the conduct causes the death of that person.
However, unlike the WA Bill, the Victorian Amendment Act does not require an additional element of neglect, consent or connivance to be proven for an officer to be convicted of the offence. Rather, the Victorian Amendment Act simply recreates the elements of the offence applicable to PCBUs and applies them to “a person who is an officer of an applicable entity”, being corporations, unincorporated associations and partnerships.
Meanwhile, the Northern Territory parliament also introduced an industrial manslaughter offence in the Work Health and Safety (National Uniform Legislation) Amendment Act 2019 (NT Act). The NT Act passed into law on 27 November 2019 and will commence on a date fixed by Gazette notice.
The offence under the NT Act is structured similarly to the Victorian Amendment Act, however it includes an additional requirement to prove recklessness or negligence about the relevant conduct causing the death. Pursuant to the NT Act, the industrial manslaughter offence is punishable by imprisonment for life for an individual or $10.2 million for corporations.
Victoria and the Northern Territory now join Queensland and the Australian Capital Territory as the Australian jurisdictions with industrial manslaughter offences in force.