As discussed in a School Governance article earlier this year, there is a growing push across Australia for stronger workplace health and safety (WHS) laws to seek to prioritise worker safety and achieve a higher level of accountability by employers for avoidable workplace deaths.

Model WHS Laws and their Review in December 2018

The “model” WHS laws are the single set of WHS laws developed by the Commonwealth Government body Safe Work Australia in 2011 intended to be implemented across Australia in order to create a nationally-consistent set of WHS laws that apply in all jurisdictions. For the model WHS laws to become legally binding, the Commonwealth, state and territory governments must implement them as their own laws. The model WHS laws have been implemented by the Commonwealth government and by all of the state and territory governments (sometimes with minor changes) except for the Western Australia and Victorian governments.

The ministers responsible for WHS asked Safe Work Australia to review the current laws. The review was completed in December 2018 and the Review of the model Work Health and Safety laws: Final report is currently with the relevant state and territory ministers for consideration. The ministers’ national response to the recommendations is expected in late 2019.

Recommendation of an Industrial Manslaughter Offence

The Report made 34 recommendations for reform. One of the more controversial recommendations is the introduction of an industrial manslaughter offence in the model WHS laws. The Final Report says in its introductory “Letter to Safe Work Australia”:

Workplace injuries and deaths ruin lives and shatter families. It is critical that the community is confident that the model WHS laws enable justice to be administered fairly and appropriately.

The Report elaborates on its recommendation of a new offence of industrial manslaughter by stating “there should be a separate industrial manslaughter offence where there is a gross deviation from a reasonable standard of care that leads to a workplace death. It is also required to address the limitations of the criminal law when dealing with breaches of WHS duties. More broadly, the ACT and Queensland have already introduced industrial manslaughter provisions, with other jurisdictions considering it, and so this new offence also aims to enhance and maintain harmonisation of the WHS laws”.

The proposed industrial manslaughter offence is an escalation of the existing offences in the current Northern Territory WHS Act (NT WHS Act) that apply where a person has a health and safety duty and their reckless breach of that duty exposes a person (to whom they owe that duty) to a risk of death or serious illness or injury. Currently the maximum penalty is five years imprisonment, and/or fines of $600,000 for an officer of the organisation, or $300,000 for an individual, and $3 million for a body corporate. There is no specific provision if the person to whom the duty of care is owed actually dies.

While it may take some time for agreement to be reached by the states and territories to amend the WHS model laws to reflect the Report’s recommendations, in the meantime the state and territory governments are free to introduce their own versions of the Report’s recommendations.

Northern Territory’s New Bill

The Northern Territory is reported to have the highest number of workplace deaths per capita in Australia. According to ABC News, under the Northern Territory’s current WHS laws, no-one has received a custodial sentence despite the number of deaths at work over recent years. Since our previous article there has been another death reported, this time at a mine in central Australia.

The Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (NT) was introduced into the Assembly on 19 September 2019 and has been referred to the Economic Policy Scrutiny Committee for report by 26 November 2019.

The Bill amends the NT WHS Act to establish a new criminal offence of industrial manslaughter which applies to both individuals and corporate entities.

Under the proposed changes, a person commits the offence of industrial manslaughter if:

• the person has a health and safety duty (as defined in the NT WHS Act); and
• the person intentionally engages in conduct; and
• the conduct breaches the health and safety duty and causes the death of an individual who is owed the health and safety duty; and
• the person is reckless or negligent about the conduct breaching the health and safety duty and causing the individual’s death.

The maximum penalty is life imprisonment for an individual or 65000 penalty units for a body corporate. 65000 penalty units currently equates to over $10 million. This offence only applies in a limited way to a volunteer.

What Does This Mean for Schools?

The death of a person who is part of the school community is always difficult. The death of a person to whom a health and safety duty of care is owed, and this can mean a member of staff, volunteer, contractor or “other person affected by the school’s activities” such as a student or visitor, due to a safety breach at a school would be catastrophic for the whole school community for all of the self-evident reasons. In addition to that, once the Bill comes into force, the death could also result in imprisonment or crippling fines. It will therefore become even more important that a school and all staff, contractors and volunteers are aware of, and diligently manage, their WHS obligations.

Authors

Madeleine McDonell

Madeleine is a Legal Research Consultant at CompliSpace. Madeleine has worked as a solicitor (in both Sydney and London) for over twenty years. She has also recently taught a corporations law subject at The University of Sydney Business School for several years. Madeleine holds a bachelor’s degree in Arts/Law from the University of New South Wales and a Graduate Certificate in Business Administration from The University of Technology.

Svetlana Pozydajew

Svetlana is a Senior Consultant at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.