By Elizabeth Greenwood Senior Policy Manager, Workers Compensation, WHS and Regulation

On Thursday 20 June, the NSW Government passed new industrial manslaughter laws to be incorporated into the Work Health & Safety Act 2011 (the NSW WHS Act).

WHY THE CHANGE?

Technically, persons conducting a business or undertaking (PCBUs) and individuals can already be prosecuted under the NSW WHS Act even when someone hasn’t died.

All that is needed is the risk of death or serious injury or illness where someone who owes a health & safety duty has not properly managed that risk.

In addition, NSW’s criminal legal system already contains the offence of manslaughter by criminal negligence which also attracts a maximum penalty of 25 years imprisonment. 

It is for these reasons that Business NSW has always opposed the introduction of such an offence, arguing that one wasn’t needed.

However, in reality, the current legal framework wasn’t working.

According to statistics provided by SafeWork NSW to Minister Cotsis, of the 300 fatal workplace incidents that have occurred since 2019, only 14 prosecutions have been brought with only 1 conviction secured.

Something more needed to be done to better protect people in the workplace and, recognising the need for this to happen, Business NSW amended its policy position.

IN MORE DETAIL

The underlying policy objective of this offence is to improve the effectiveness of safety systems in the workplace. This is why the offence will apply to all PCBUs and officers* of PCBUs and attract harsher penalties than are currently in place.

The current maximum penalty for an individual committing a Category 1 offence will increase from a maximum penalty of 5 years imprisonment to one of 25 years, and for a body corporate the maximum penalty will increase from $3.8 million to $20 million.

The individual or body corporate (as an aggregate of individuals) will be held criminally liable if the PCBU or officer engages in conduct that:

  • is grossly negligent, 
  • breaches their health and safety duty, and
  • causes the death of a worker or other individual to whom a health & safety duty is owed.

In addition, the current limitation period for bringing a prosecution under the WHS Act will not apply.

Business NSW’s view is that the limitation period should remain in place as it can already be extended where a coronial inquiry into the circumstances of death is being held.

However, in practice, inquests are not being held, so the limitation period had to go.

During debate in parliament, Minister Cotsis made it clear that she expected the investigations into workplace deaths (and any subsequent prosecutions brought) to be done in a timely manner. To this end, a specialist unit has been set up within the Office of the Director of Public Prosecutions.

WHEN WILL THE NEW LAWS START?

 Although some amendments will start almost straight away, the industrial manslaughter offence itself and other key provisions will not commence until guidelines are put into place. This may take some months to occur.

It should also be noted that the NSW Government will review this legislation in approximately 18 months’ time. This review will examine whether the policy objectives remain valid and whether the terms of the provisions remain appropriate for achieving these objectives.  Business NSW will be keeping a close eye on this new offence once it comes into force with a view to engaging in the review process, if required.

 

* An officer is defined as being an officer within the meaning of the Corporations Act 2001 other than a partner in a partnership: Section 4 of the NSW WHS Act.

Elizabeth Greenwood Senior Policy Manager, Workers Compensation, WHS and Regulation

With a background as a litigation lawyer, tutor, and insolvency accountant, as well as extensive experience in industry associations, Elizabeth provides a wealth of expertise in policy development and advocacy.