On 11 September 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (Tas) (the Bill) passed the upper house of the Tasmanian parliament, bringing Tasmania into line with all other Australian jurisdictions.

The Bill amends the Work Health and Safety Act 2012 (Tas) (the Act) to create an offence of industrial manslaughter. Under the legislation, a person will commit an offence if:

• the person engages in negligent conduct that causes, in that it substantially contributes to, the death of an individual that is a worker at the workplace; and
• the person:
  • is a 'responsible person' in respect of the workplace; or
  • has a health and safety duty in respect of either the workplace or the worker.

Notably, the offence does not extend to volunteers.

Defining a ‘responsible person’

A person will be a 'responsible person' in respect of the workplace if the person is:

• a person conducting a business or undertaking (PCBU), including, for example, employers, sole traders, businesses, corporations, State and Local governments;
• a person with management of control of a workplace within the meaning of s 20 of the Act;
• a person with duties under Division 3 of the Act, including duties involving management or control of fixtures, fittings or plant at workplaces, designers, manufacturers or suppliers of plant, and persons that install, construct or commission structures;
• an officer of a PCBU; or
• a person of a prescribed class under the WHS Regulations.

Defences and penalties

The Bill establishes two specific defences to the offence:

• First, if the accused can prove that they complied with all the health and safety duties owed in respect of the workplace and the worker; and
• second, if the worker who dies was not lawfully present at the workplace, the accused was reasonably unaware of their presence, and had the accused known this, then they would not have engaged in conduct that led to the worker's death.

The legislation imposes a maximum penalty of 21 years’ imprisonment for an individual, or up to $18 million in fines for a body corporate.

As Labor member for Rumney, Sarah Lovell MLC, said in her second reading speech, 'there are no new health and safety duties imposed with this bill, and those who are already complying with their duties will be unaffected. Instead, it [the Bill] makes clear that where safety duties are breached and a person dies, the penalty reflects the severity of the crime'.

The Tasmanian legislation closely mirrors the approach adopted in Victoria, where the threshold for the industrial manslaughter offence is the test of criminal negligence. Conduct will be criminally negligent if involves 'a greater falling short of the standard of care that would have been taken by a reasonable person in the circumstances' and must involve such a 'high risk' that 'death, serious injury, or serious illness' would follow.

In a fact sheet introducing the Bill, now Independent member for Franklin, David O'Byrne BLS, made clear that the Victorian model was adopted for its perceived broader scope and 'for its demonstrated ability to lead to prosecutions'. The limitation periods for proceedings alleging contraventions of the industrial manslaughter offence have also been removed, consistent with the approach taken to criminal offences under the Criminal Code Act 1924 (Tas).

The offence will not apply retrospectively. However, the offence would apply in a situation where a worker is involved in a workplace incident before the Act commences, and the resultant death of the worker occurs after the date of commencement. Another example given in the second reading speech is where a person had a duty to maintain equipment before the amendments commenced. The fact that the person still had not maintained the equipment after the commencement means that the failure counts as engaging in conduct. In that example, if there is a workplace death after the amendment has commenced due to the failure to maintain the equipment, under the legislation, the person would be liable even though the obligation to perform the maintenance occurred before the amendments commenced.

The Bill now awaits Royal Assent, at which time it may come into immediate effect or at a later time to be announced.

Implications for employers

The passage of the Bill brings Tasmania into step with all other Australian jurisdictions. It has never been more important for organisations to ensure officers continue to take positive, proactive steps to exercise due diligence. Employers should communicate this change to the industrial manslaughter regime to all key individuals, including officers.

Please reach out to our national safety team if you would like more information about how these amendments will impact your organisation or if you need any assistance with upskilling your Board, managers and broader workforce so that they understand your organisation's and their own personal WHS obligations.