Proposed reforms to NSW and Queensland’s WHS laws to expand the industrial manslaughter offence

On 22 May 2024, the Electrical Safety and Other Legislation Amendment Bill 2024 (the Bill) was introduced into the Queensland Parliament, introducing a number of significant changes to the Work Health and Safety Act 2011 (Qld) (WHS Act).

The changes follow the Work Health and Safety Prosecutor’s recent review into the scope and application of industrial manslaughter provisions in the WHS Act, as well as changes to the Model Work Health and Safety Act in 2022 (Model Law) (see our previous article on these changes).

The key changes to the WHS Act proposed to be made by the Bill include the following:

Adding negligence as a fault element to the Category 1 offence

This amendment will allow prosecutors to prove either the fault element of negligence or recklessness in prosecuting for a Category 1 offence and gives effect to the recommendation made in the 2018 Boland Review of the Model Law.

However, the proposed amendment does not align with the Model Law which includes “gross negligence” as a fault element for a Category 1 offence, instead adopting the same standard as the existing industrial manslaughter offence. The explanatory note states that the existing standard of criminal negligence will apply to both offences. No guidance as to how this standard will be applied, in particular in relation to corporate entities, is proposed to be added to the WHS Act, despite such provisions being included in the Model Law.

Expanding the scope of the industrial manslaughter offence

The amendments will expand the scope of the industrial manslaughter offence to allow PCBUs and senior officers to be prosecuted when any person to whom they owe a duty dies or is injured and later dies. This means the offence could apply to the death of bystanders and other persons, not only workers carrying out work for the relevant PCBU. The changes:

• align Queensland with other Australian jurisdictions that have introduced the offence into their WHS laws; and
• clarify that multiple parties in a contractual chain can be prosecuted for the offence (not only the PCBU for whom a person is carrying out work), as recommended by the Work Health and Safety Prosecutor in his recent review.

The maximum penalties for the offence will remain the same (20 years imprisonment for an individual and a fine of $10 million for a body corporate).

Alternative verdicts

The Bill also proposes to amend the WHS Act to allow alternative verdicts to industrial manslaughter and Category 1 offences. If a person is charged with industrial manslaughter or a Category 1 offence, and the charge cannot be made out, the person can be found guilty of an alternative offence (see below).

OffenceAlternative verdictIndustrial manslaughter?Category 1 offence Category 2 offenceCategory 1 offence?Category 2 offence

The explanatory note states that this will enable the Work Health and Safety Prosecutor to seek higher penalties with the knowledge that the offender can be found guilty of an alternative offence rather than being acquitted of the more serious charge where the evidence supports such an outcome.

In addition to the above, the Bill also proposes changes to the ES Act, following the 2021 review of the legislation, including the following:

• expanding the definition of "electrical equipment" to capture new and emerging energy generation and storage systems; and
• broadening inspector powers to allow inspectors to require the production of documents and answers to questions within 30 days of entering a workplace rather than only being able to exercise these powers while at a workplace (in line with the WHS Act).

NSW

As the NSW Parliament considers new laws that would see industrial manslaughter attract a 25-year jail term and a $20 Million fines for Companies and Directors and Executives, new polling shows overwhelming support for the reform, especially in regional and rural NSW.

Last year, the state government announced it would introduce an industrial manslaughter offence to crack down on "dodgy bosses".

The laws would allow for a business or individual to be held responsible for the death of a person due to negligent or reckless behaviour in the workplace.

Minister for Work Health and Safety Sophie Cotsis said at the time that any workplace death is a "tragedy".

"In cases where a person with a duty of care has been careless or irresponsible, they must be held accountable," she said.

Safe Work Australia figures show 51 workers died in NSW in 2022 - the highest nationally.

Currently in NSW, employers who expose workers to the risk of death through "gross negligence" can face jail time of up to five years. But unlike other states, NSW does not treat worker deaths as manslaughter, meaning the penalties are substantially lower than other jurisdictions.

NSW is the last mainland state without an industrial manslaughter offence.