Queensland gets tough with new industrial manslaughter laws
Tough new industrial manslaughter laws have been passed by Queensland’s Parliament despite strong opposition from business groups and concerns about how these could affect the national harmonisation of Workplace Health and Safety laws.
Passed via the Work Health and Safety and Other Legislation Amendment Bill in October, the new laws can expose senior officers to a maximum of 20 years imprisonment if their conduct substantially contributes to the death of a worker. Companies can now also be penalised up to $10 million if the company's gross negligence results in the death of a worker.
The passing of the bill makes Queensland the second Australian jurisdiction to have a specific industrial manslaughter offence; the ACT has a similar provision.
Queensland’s Industrial Relations Minister Grace Grace observed that up until now, it had been difficult to prosecute some employers for manslaughter because of increasingly elaborate corporate structures.
‘But these new laws will hold all employers — regardless of their size or structure — accountable for negligence contributing to a worker’s death,’ she said.
‘Last year’s tragic workplace deaths at Eagle Farm and Dreamworld, which cost six people their lives, brought home the need for these tough new laws.’
Grace noted that the creation of the new offence of industrial manslaughter was one of 58 recommendations contained in Tim Lyons’s Best Practice Review of Workplace Health and Safety Queensland.
In their report on the changes, KLM Gates partner Paul Hardman and senior associate Alanna Fitzpatrick say the new industrial manslaughter provisions create a significant new burden for those businesses that operate across interstate borders and are a considerable departure from harmonised workplace health and safety laws.
They note that industrial manslaughter may be considered in circumstances where an act or omission amounts to gross negligence causing death. Importantly, by way of amendments made prior to the bill passing, defendants will not be able to rely on the defence of 'accident' to avoid liability.
They add: ‘The difficulty which is not contemplated by the amendments to the Work Health and Safety Act 2011 (WHS Act) is that workplace safety is never the responsibility of one person in an organisation. Workplace fatalities are complex and rarely as a direct result of acts or decisions made by an individual or an executive officer within an organisation.
‘Ordinarily, a workplace fatality can be traced back to a number of small and seemingly inconsequential decisions made by various employees at different levels in an organisation, sometimes over many years. Typically, these decisions will not meet the common-sense threshold of being considered to significantly contribute to a workers' death.’
In a technical update, lawyers Minter Ellison noted the amendments introduced in Queensland are a significant departure from the model WHS laws adopted in all states and territories other than Victoria and Western Australia.
The firm’s partner Samantha Betzien and special counsel Deanna McMaster state: ‘The Queensland Government has said that the changes made in Queensland should be made to the model WHS laws and intends to raise this at the 2018 national review of the model WHS laws coordinated by Safe Work Australia. The timing and terms of reference for this review are yet to be released.
‘Given that the changes will be considered nationally, it is important for businesses outside of Queensland to monitor how the new laws are implemented and for those businesses based in Queensland to ensure that they have systems and procedures address the amendments. It will also be important for all workers and officers to receive training in relation to the changes.’