On 4 June 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (WHS Bill) was introduced into the NSW Legislative Assembly to amend the Work Health and Safety Act 2011 (NSW) by creating an offence of industrial manslaughter. If passed, the WHS Bill will set some of the highest WHS penalties in Australia, with individuals found guilty of industrial manslaughter facing up to 25 years in prison, while corporations could be fined up to $20 million.
The proposed offence
NSW is one of the last mainland states to introduce a dedicated industrial manslaughter offence, aligning it with other states that have already enacted similar laws. Under the WHS Bill, the proposed offence will be committed where a person:
- has a health and safety duty; and
- is a person or an Officer of a person, conducting a business or undertaking (PCBU); and
- engages in certain conduct, by an act or omission, that caused the death of a worker or another individual, to whom the person’s health and safety duty is owed; and
- engages in conduct with gross negligence.
As made clear in the second reading of the WHS Bill, the proposed offence will cover those individuals whose behaviour or decisions have the power to influence the activities and culture of a workplace (i.e. officers of a PCBU).
Interestingly, the WHS Bill attempts to provide guidance on when a body corporate may be considered grossly negligent. According to the WHS Bill, a PCBU may be grossly negligent if there is inadequate corporate management, control or supervision of the conduct (act or omission) of one or more authorised persons (defined in the existing WHS Act as an officer, employee or agent acting within their actual or apparent authority), or a failure to provide adequate systems for conveying relevant information to relevant persons within the body corporate.
This formulation is unhelpful and creates more questions than answers. For example, conduct may be readily established where multiple rogue individuals do not adhere to systems implemented or promoted by the business, exposing the PCBU and other officers. The Bill does not define what constitutes inadequate corporate management, control and supervision. Additionally, there is no clear standard for what makes a system for conveying information inadequate or who the ‘relevant persons’ are within the body corporate.
Other notable sections of the WHS Bill
No time limitation period for prosecutions: There is no limitation period for prosecuting industrial manslaughter offences. This means that legal proceedings can be initiated at any time following the offence.
Alternative verdicts: If a prosecution for industrial manslaughter is initiated and the court finds the individual or PCBU not guilty of industrial manslaughter, the court may still convict for a Category 1 offence, even if the time limitation period for a Category 1 offence has lapsed. This alternative charge is consistent with industrial manslaughter provisions across Australia. However, unlike other industrial manslaughter laws, NSW’s proposed provisions lack the requirement to afford the defendant procedural fairness concerning the alternative Category 1 offence.
Exemption for volunteers: The industrial manslaughter offence is not intended to apply to volunteers.
Enforceable undertakings: Enforceable undertakings cannot be accepted by the regulator for contravention of an alleged industrial manslaughter offence. This is consistent with the current approach taken to Category 1 offences.
Establishment of special unit: In addition to the WHS Bill, the NSW Government proposes to establish a special unit within the Office of the Director of Public Prosecutions that will be responsible for prosecuting industrial manslaughter cases.
Increased penalties
Under the new bill, individuals found guilty of industrial manslaughter could face up to 25 years in prison, while corporations could be fined up to $20 million. These penalties are significantly higher than the current maximums under the WHS Act, which are $399,479.85 and/or five years’ imprisonment for individuals, and $3,992,492.70 for PCBUs. The highest court-imposed WHS fine to date stands at $2,025,000. The new industrial manslaughter laws represent a dramatic increase in the maximum penalties.[1]
Below is a comparison of industrial manslaughter penalties across the Australian jurisdictions:[2]
| Jurisdiction | Industrial manslaughter law | Maximum penalties |
| Commonwealth | In force from 1 July 2024 | Individual: 25 years’ imprisonment
Body corporate: $18,000,000 |
| ACT | Law in force | Individual: 20 years’ imprisonment
Body corporate: $16,500,000 |
| SA | In force from 1 July 2024 | Individual: 20 years imprisonment
Body corporate: $18,000,000 |
| QLD | Law in force | Individual: 20 years’ imprisonment
Body corporate: $15,480,000 |
| WA | Law in force | Individual: 20 years imprisonment and a fine of $5,000,000
Body corporate: $10,000,000 |
| VIC | Law in force | Individual: 25 years’ imprisonment
Body corporate: $19,231,000 |
| TAS | No law in force | N/A |
| NT | Law in force | Individual: imprisonment for life
Body corporate: $11,440,000 |
Implications for Employers
While the new industrial manslaughter laws do not change the obligations of individuals and PCBUs duties under the WHS Act, the significant penalties that will apply following conduct that causes the death of a worker heightens the importance of taking a proactive approach to meeting those duties.
The duties under the current WHS Act already require individuals and PCBUs to ensure the health and safety of workers and others affected by their operations, as far as is reasonably practicable. These duties remain unchanged with the introduction of the industrial manslaughter laws. These laws only introduce more severe penalties for breaches that result in fatalities, but also create uncertainty in relation to what exact conduct will constitute gross negligence by way of inadequate corporate management, control or supervision of the conduct or authorised person(s) or the failure to provide adequate systems for conveying relevant information to relevant persons. The WHS Bill is yet to be debated in Parliament, and changes may occur during this process. Kingston Reid will provide updates as the changes develop.
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.
[1] As at June 2024. Penalties will increase in July 2024.
[2] As at June 2024.