On 26 May 2018, Daniel Andrews, the Premier of Victoria, announced that the Victorian Government would introduce a new criminal offence of industrial manslaughter.
Mr Andrews indicated that the new offence will attract maximum fines for corporations of almost $16 million and maximum term of imprisonment of 20 years for individuals.
If passed, the introduction of an industrial manslaughter offence would significantly increase the maximum penalties presently available under the Occupation Health and Safety Act 2004 (Vic) (Victorian OH&S Act). Currently, the maximum fine under the Victorian OH&S Act is $3,171,400 for corporations and $285,426 for individuals. Individuals also face a maximum five year term of imprisonment under the reckless endangerment provisions of the Victorian OH&S Act.
This is not the first attempt to introduce industrial manslaughter laws in Victoria. Similar legislative changes were proposed in Victoria in 2011 under the Crimes (Workplace Deaths and Serious Injury) Bill 2001. This Bill was rejected by the Upper House of the Victorian Parliament on 29 May 2002.
There is an election in Victoria in November 2019. The announcement by the Victorian Government is one of a number of other announcements made in the area of employment and occupational health and safety. It may be that further announcements are made as the election nears. At present, the Government has not released a bill relating to the proposed industrial manslaughter laws.
Industrial manslaughter legislation around the country
The announcement in Victoria of the proposed introduction of industrial manslaughter is not a novel step in Australia.
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) which took effect on 1 March 2004. To date, there have been no prosecutions for industrial manslaughter in the Australian Capital Territory despite the fact that the offence has been in existence for over thirteen years. However,
there is currently one offence before the ACT Court.
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.
The Queensland Amendment Act came into effect on 23 October 2017 and was introduced as a response to an independent review called the Best Practice Review of Work Health and Safety in Queensland (Review). Both the Review and the Queensland Amendment Act were widely reported as being a response to the Ardent Leisure tragedy where four visitors to the Dreamworld Theme Park died on its Rapids Ride.
The Queensland Amendment Act introduced two new criminal industrial manslaughter offences in relation to a person conducting a business or undertaking (PCBU) and a senior officer.
Under the Queensland Amendment Act, a PCBU or a senior officer can be prosecuted where a worker carrying out work for the PCBU dies, or is injured and later dies, where:
- the death of the worker was caused by an act or omission of the PCBU or a senior officer; or
- the death of the worker was caused by the PCBU or a senior officer's negligence.
Where a PCBU is a corporation and it commits industrial manslaughter, the maximum fine is $10 million. If an individual commits industrial manslaughter, either as a PCBU or a senior officer, there is no provision in the legislation for a fine, and the maximum penalty is 20 years imprisonment.
