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https://www.minterellison.com/articles/victorias-industrial-manslaughter-laws-and-tougher-penalties-regarding-dangerous-goods

Victoria's industrial manslaughter laws and tougher penalties regarding dangerous goods

3 minute read  04.12.2019 Leon Levine, Caitlin Ible, Jess Dallimore

The Victorian government has recently implemented a number of significant changes to OHS legislation in Victoria, including the introduction of an offence for industrial manslaughter and tighter controls and higher penalties for individuals and companies who fail to adequately store and dispose of dangerous goods.

 

Industrial manslaughter

Victoria has become the third Australian jurisdiction with a specific industrial manslaughter offence, joining Queensland and the ACT. On 26 November 2019, the Victorian Legislative Council passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (the Bill) without amendment. Our previous Update on industrial manslaughter legislation, contains more information about the Bill. The Bill amends the OHS Act to create industrial manslaughter laws that apply to employers, self-employed persons or officers who, by their negligent conduct, cause the death of anyone who is owed an existing duty under the OHS Act, including employees and members of the public. This may include a situation where negligent conduct causes an injury or illness to another person, who later dies from that injury or illness. The Bill says that conduct is negligent if it involves a 'greater falling short' of the standard of care that would have been taken by a reasonable person in the circumstances, and involves a high risk of death, serious injury or serious illness.

The objectives of the industrial manslaughter laws include:

  • To prevent workplace deaths;

  • To deter persons who owe certain duties under Part 3 of the Occupational Health and Safety Act2004 (OHS Act) from breaching those duties; and

  • To reflect the severity of conduct that places life at risk in the workplace.

An offence, if proven, may carry a fine of up to $16.5 million (100,000 penalty units) and for individuals, up to 20 years' jail. The penalty for imprisonment is consistent with the penalty prescribed for manslaughter under the Crimes Act 1958 (Vic).

The Bill, now awaiting royal assent, will commence on a day to be proclaimed or on 1 July 2020 at the latest.

Dangerous goods

Following a recent spate of incidents in Victoria involving the stockpile of hazardous waste in warehouses in Melbourne's northern suburbs, the Victorian government introduced new laws creating an offence for duty holders who engage in reckless conduct during the manufacture, transport or storage of dangerous goods.

The new laws, which came into operation on 7 November 2019, call for persons who engage in rogue operations such as illegal stockpiling of dangerous goods to face penalties – for individuals up to 10 years' imprisonment. The laws stem from the so-called 'stash and burn business model' where the storage of excessive quantities of hazardous chemical waste is followed by suspicious fires.

The new laws, which came into operation on 7 November 2019, call for persons who engage in rogue operations such as illegal stockpiling of dangerous goods to face penalties – for individuals up to 10 years' imprisonment. The laws stem from the so-called 'stash and burn business model' where the storage of excessive quantities of hazardous chemical waste is followed by suspicious fires.

The Dangerous Goods Amendment (Penalty Reform) Bill 2019 amended the Dangerous Goods Act1985 to:

  • Introduce a new offence of reckless conduct, with maximum penalties of $6,608,800 for bodies corporate and 10 years' jail for individuals; and
  • Significantly increase the maximum fines for existing offences in the Dangerous Goods Act including:
    • failing to comply with a direction issued by an inspector to render harmless the dangerous goods or container, or to dispose of, or remove the spilled dangerous goods ($82,610 for a natural person and $413,050 for bodies corporate); and
    • to take all reasonable precautions for the prevention, tampering, theft, unauthorised access, fires, explosions, leakage or damage to property or danger to the public involving dangerous goods ($297,396 for a natural person and $1,486,986 for bodies corporate).

The new reckless conduct offence now makes it an offence for a person, who, without lawful excuse, recklessly engages in the manufacture, storage, transport, transfer, sale or use of dangerous goods that places, or may place, another person in danger of death. The new offence is intended to capture the most serious conduct resulting in the endangerment of life.

Employers should take steps to ensure that they have systems and procedures in place to address the amendments. It will also be important for all employers, employees and company officers to receive training in relation to:

  • The industrial manslaughter provisions; and
  • The storage, transport, transfer and sale of dangerous goods (for employers who, because of the nature of their business, stockpile dangerous goods).

Please get in touch with a member of our Workplace team if you would like more information on anything we have discussed in this article.

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https://www.minterellison.com/articles/victorias-industrial-manslaughter-laws-and-tougher-penalties-regarding-dangerous-goods

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