On 22 August 2024, the Queensland Parliament passed the Electrical Safety and Other Legislation Amendment Bill 2024 (Amendment Bill). In addition to important amendments to the Electrical Safety Act 2002 (Qld), the Amendment Bill makes changes to the Work Health and Safety Act 2011 (Qld) (WHSA) to:
- Expand Industrial Manslaughter to include the death of any individual and clarify that multiple duty holders in a supply chain can be charged with the offence
- Include 'negligence' as an alternative to 'reckless conduct' for a Category 1 offence (an identical change is made to the Safety in Recreational Water Activities Act 2011 (Qld))
- Allow alternative verdicts to Industrial Manslaughter or Category 1 charges and enable convictions of the lesser offences by removing the applicable limitation period
- Empower Health and Safety Representatives and WHS permit holders to take measurements, conduct tests and take photos in the performance of their functions
The changes to Industrial Manslaughter and Category 1 offences will take effect when the Amendment Bill receives Royal assent. The additional powers of HSRs and WHS permit holders will commence on 1 January 2025.
While similar amendments are expected to be made to the other safety legislation in Queensland, this will not happen before the election on 26 October 2024.
Detail of changes to offences
Objectives
The changes reflect the recommendations from a series of independent reviews, including a review by the Work Health and Safety Prosecutor (WHSP) in February 2024. They are intended to align the WHSA with other jurisdictions which have adopted the Model Work Health and Safety legislation. They are also designed to strengthen deterrence and make it easier for the WHSP to secure convictions for serious offences.
Industrial Manslaughter
Since the introduction of Industrial Manslaughter in 2017, the offence has been restricted to the death of a 'worker'. This has meant that only a Category 1 offence (or lesser), or otherwise Manslaughter under the Criminal Code, could be charged when someone other than a worker was killed in the context of business or undertaking.
The amendments expand the scope of Industrial Manslaughter to the death of any individual – whether that person is a worker, bystander, customer or other member of the public. It must be remembered, however, that unlike other jurisdictions, the Queensland offence only applies to a person conducting a business or undertaking (PCBU) or an individual who meets the definition of a 'Senior Officer'. A 'Senior Officer' is not a duty holder category under the WHSA. This means that the prosecution must first prove that the Senior Officer owed a duty of care to the deceased, before establishing that their criminal negligence caused the person's death. This remains practically difficult for the prosecution, particularly in relation to Senior Officers of large PCBUs which typically have a multi-layered governance and management structure and a comprehensive safety system.
Category 1 offence
'Reckless conduct' has been interpreted as requiring proof that the defendant knew that their act or omission would expose an individual to the risk of death or serious injury. Introducing 'negligence' as an alternative fault element makes it easier for the WHSP to secure a conviction for a Category 1 offence. This is because negligence means that the defendant failed to act as a 'reasonable person' would have in the circumstances, and that exposure to death or serious injury was an objectively foreseeable consequence of their conduct.
It is clear, however, that the threshold of 'criminal negligence' will apply in an identical manner to Industrial Manslaughter. Criminal negligence requires proof, beyond reasonable doubt, that the defendant's conduct 'so far departed from the standard of care incumbent upon [them] to use reasonable care to avoid a danger to life, health and safety, as to amount to conduct deserving of punishment'. Mere breach of duty is not enough. While other model jurisdictions (eg New South Wales) use the term 'gross negligence', it seems clear it has the same meaning.
Alternative verdicts
Alternative verdicts are aimed at securing a conviction for a defendant's breach of a health and safety duty, despite that person being acquitted of the more serious charge of Industrial Manslaughter or a Category 1 offence. For Industrial Manslaughter, this means a defendant can be convicted of either a Category 1 or a Category 2 offence as an alternative, and for a Category 1 charge, conviction of a Category 2 offence is available. Alternative verdicts will be available despite the lesser offence not being charged within the relevant limitation period. This is particularly relevant for alternative verdicts to Industrial Manslaughter for which there is no limitation period. Conversely, a Category 1 charge must be brought within the same limitation period for a Category 2 offence.
In practice, it is difficult to see how a jury could acquit a defendant of Industrial Manslaughter but then find them guilty on the same evidence of a Category 1 offence. This is because Industrial Manslaughter and Category 1 offences both require proof of criminal negligence and causation. A Category 2 conviction is a more likely alternative to either charge.
Why is this relevant?
The amendments are designed to broaden the scope of Industrial Manslaughter and Category 1 offences and strengthen deterrence. They are also aimed at making it easier for the WHSP to secure convictions. Whether the amendments will achieve those policy objectives remains to be seen. However, with the increasing focus on enforcement action following the Dreamworld tragedy, an increase in Industrial Manslaughter and Category 1 prosecutions under the WHSA appears inevitable. Similar changes are expected to be made to the other safety legislation in Queensland following the State election in October.
Stay tuned for our detailed update on the important amendments to the Electrical Safety Act 2002 (Qld).
Please get in touch if you would like to discover how these amendments will impact your organisation.
