Update on WA's Industrial Manslaughter - The Illusion of Doing Something Yet Achieving Nothing
WA Premier Mark McGowan last week announced that industrial manslaughter ('IM') will be enacted by the end of the year and included in s 291A-291D of the Criminal Code Act Compilation Act 1913 (WA) (‘the Code’). This move has been summed-up by WHS practitioners on LinkedIn as ‘the illusion of doing something yet achieving nothing’.
For WA prosecutors, causation must be proved for the offence of manslaughter. It must be proved, beyond reasonable doubt, that the accused killed the deceased. A person cannot be held criminally responsible for the killing of another unless he or she, through their action or inaction, has directly or indirectly caused a person’s death. Section 270 of the Code defines killing as ‘any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person’.
WA has mirrored the Crimes Act 1900 (ACT) (s 49D) and Work Health and Safety Act 2011 (Qld) (Part 2A, 34A-34D). The ACT has had the provision since 2003, Queensland since 2018; both have zero successful prosecutions for industrial manslaughter.
So:
Has IM improved WHS statistics and desired outcomes in Qld and ACT? No.
Will IM improve safety in WA? No.
Will IM reduce deaths in WA? No.
This begs the question: why is WA going down this route?
The Industrial Manslaughter Bill from 2017 can be found below.
One of the most trusted and experienced OHS and Workers Compensation practitioners in the country.
5 年Great article. The legislation is purely industrially motivated and a free kick to their union mates. Just thank god that WA have not followed the Queensland model or even worse the model that Victoria is heading towards.
Workers compensation; work health and safety; health and safety representative specialist
5 年Fascinating the death of some one at work is a civil matter... ask Joel Exner’s [actually ask me] mother about the criminals who killed her son and then not six months later were carrying out exactly the same work in the same industry with the same disregard for life. Oh ladies and gentlemen?
Auditing, Investigations, Inspections, Safety Support
5 年I would almost tend to believe SAFETY fits this caption also. When and where Money is the objective and the reasoning behind why most people are therefore in the safety industry, then it is a total illusion and the end results are "Nothing gets done".
Principal Consultant at DGaS Services
5 年While the illusion of IM has pushed D&O insurers towards strong growth, the biggest problem will remain crossing the civil bridge to the criminal. But if you have nothing, as before, then you still have nothing. This illusion will be something.
Safety, Employment and IR Partner at Mills Oakley
5 年I did a snap survey amongst a small group of HSEQ managers. My view was like those above but more to the point that IM would drive weaker investigations and less knowledge sharing. Interestingly 66% of my respondents said it would improve safety outcomes because it would get the senior officers engaged. We’re wasting our time if we try and debate the matter on law and logic. It is philosophically driven.