On 1 July 2024 (today), South Australia's new industrial manslaughter laws under the Work Health and Safety Act 2012 (SA) (WHS Act) take effect.
Criteria for industrial manslaughter offences
The Work Health and Safety (Industrial Manslaughter) Amendment Act 2023 (SA) introduced the major indictable offence of "industrial manslaughter" which applies where:
a. a person (including a person conducting a
business or undertaking) has a health and safety duty; and
b. the person engages in conduct that breaches
that duty; and
c. the conduct causes the death of an individual
to whom that duty is owed (noting that the WHS Act states
"conduct causes the death of an individual if it substantially
contributes to the death"); and
d. the person:
- engages in the conduct with gross negligence;
- is reckless as to the risk to an individual of death or serious injury or illness.
All four of the criteria detailed above (a, b, c & d) must be satisfied to prove the offence of industrial manslaughter.
Penalties and enforcement
Significant maximum penalties apply for breaching the new provisions, including:
- up to 20 years imprisonment in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking; and/or
- up to $18 million dollars in fines in the case of an offence committed by a body corporate.
In the last five years or so, Australian courts have sharpened their focus on the deterrent effect of pecuniary (i.e. monetary) penalties to justify increasingly significant fines against persons who breach industrial laws. We expect the new industrial manslaughter laws will be no different.
Persons charged with industrial manslaughter can also be convicted of other offences under the WHS Act. The amendments provide that, if the judge or magistrate (or other trier of fact) in a trial is not satisfied that the accused is guilty of industrial manslaughter but is satisfied that the person is guilty of a Category 1, 2 or 3 offence under the WHS Act (i.e. a less serious offence), the person can be convicted for that lesser offence.
Federal amendments and recommendations for compliance
Identical amendments to the Federal Work Health and Safety Act 2011 also come into force today (1 July 2024) following the passage and gazette of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (see related article here).
In view of these amendments, we strongly recommend all Australian ensure they understand their health and safety duties and guarantee the health and safety of their workers by:
- identifying potential hazards and undertaking risk assessments in the workplace;
- reviewing current safe systems of work and ensuring they remain effective;
- keeping adequate records of work health and safety policies, plans, responses, reviews and assessments; and
- updating all key individuals within your organisation about the changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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