Industrial Manslaughter headed for Victorian OHS Law?
According to commitments Daniel Andrews made in May this year the recently re-elected Labour government intends to introduce the industrial manslaughter offence to the Victorian Occupational Health and Safety Act 2004. This commitment included Australia's potential highest maximum work safety fine of more than $16 million.
For many years in Australia, the appetite for industrial manslaughter offences on the statute books has waxed and waned, and the various stakeholder groups, including the Victorian Chamber have continually and vigorously represented employers in the debate of the pros and cons of industrial manslaughter offences.
Industrial manslaughter was first introduced in Australia when it was passed by the Australian Capital Territory's Legislative Assembly on 27 November 2003 under the Crimes (Industrial Manslaughter) Amendment Act 2002 (ACT).
On 12 October 2017, industrial manslaughter was introduced as an offence in Queensland under the Work Health and Safety and Other Legislation Amendment Act 2017 (Queensland Amendment Act). Queensland also included an industrial manslaughter offence in the Electrical Safety Act 2002 (Qld) and the Safety in Recreational Water Activities Act 2011.
Although recently rejected in South Australia, it currently seems that the wind is in favor of this type of legal instrument and organizations need to be ready for them if they do eventuate.
Despite much effort over the last ten years to “harmonize’ safety laws around Australia, we are now seeing the re-emergence of different legal tests (negligence vs recklessness), applying to different categories of individuals (‘senior officer’ vs ‘corporate officer’) and different penalties ($10 million vs $16 million) depending on the state or territory in which the fatality takes place.
If this new Victorian offence proceeds, an employer whose negligence leads to the death of either a worker or a member of the public could be fined up to 100,000 penalty units, which currently equates to $16,119,000. This is significantly higher than the offence Queensland recently introduced with the current highest work health and safety fine of $10 million for industrial manslaughter.
Also any individual who negligently causes a work-related fatality faces potential jail for up to 20 years.
Daniel Andrews stated at the Labour Conference at the time of the announcement, “It’s my sincerest hope that these laws will never need to be used … that instead, they’ll change our workplaces and change our culture”.
Daniel Andrews also said that WorkSafe Victoria will be given extra resources for investigating and prosecuting this potential new offence.
One of the key problems here is there is little evidence that threatening managers with greater prison sentences than under existing health and safety legislation is going to change behaviors and eliminate dangerous practices.
Putting in place better mechanisms to prevent injuries before they occur (such as site inspections, enhanced safety training requirements and improved safety management systems) is a far better use of resources than paying prosecutors and judges to punish people after a tragedy has occurred.
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