WAFIC News

URGENT: Have your say on proposed industrial manslaughter legislation

WAFIC is urgently seeking comments on proposed changes to the industrial manslaughter legislation.

The McGowan Government upon winning the election in 2017 instigated a review of the workplace safety legislation in Western Australia.

A draft Bill was released for public comment in 2019 with a Ministerial Review Panel process providing recommendations.

However, the final draft Bill tabled by the McGowan Government in Parliament in November 2019 included a series of previously unseen provisions around ‘industrial manslaughter’ that had not been part of the Ministerial Review Panel recommendations.  No consultation has been undertaken in WA on the proposed new provisions either before or after they were introduced into Parliament in November 2019.

The Bill proposes two classes of industrial manslaughter offences:

1. ‘Criminal offence’ (section 30A) carrying a penalty of up to 20 years imprisonment and fines of up to $5 million for individuals and $10 million for body corporates; and
2. ‘Simple offence’ (section 30B) carrying a penalty of up to 10 years imprisonment and fines of up to $2.5 million for individuals and $10 million for body corporates.

Whilst industrial manslaughter laws exist in other states, the laws proposed in WA differ in that:

1. WA is the only jurisdiction to have the two-tier approach (i.e. crime section 30A and simple offence section 30B) –other jurisdictions have a single test.
2. The standard for the proposed WA offences in section 30Bis much lower than other State jurisdictions. The way in which section 30B has been drafted makes it easy for WorkSafe to secure a successful prosecution in any matter involving a workplace fatality, without the corresponding protections or procedural fairness elements apparent. Whilst the prosecution bears the onus of proof, the bar to establish culpability is so low, and does not require any of the standard requirements for a manslaughter provision (knowledge, recklessness, negligence, deliberate act etc) which exist in all other Australian jurisdictions safety legislation.

Concerns include:

• The Laws Already Exist– WA already has laws covering negligence which contributes to injury or death in a workplace, including jail sentences (Occupational Safety and Health Act 1984 and Criminal Code).

The additional offence of Industrial Manslaughter is a duplication of existing laws, in circumstances where only 12 months earlier the penalties for workplace fatalities were increased to penalties higher than the national model. Individuals currently face 5 years’ imprisonment and fines up to $680,000; and body corporates currently face fines up to $3.5 million.

• Extreme nature of section 30B– The proposed offence in section 30B goes further than any accepted industrial manslaughter provisions in jurisdictions that have them to date, and further than any recommendations in relation to industrial manslaughter offences from other jurisdictions. There are no equivalent provisions in force elsewhere with as low a standard to meet, yet as high a corresponding penalty. Section 30B requires consideration as to the impact, including unintended consequences, which has not occurred without proper consultation on the proposed offences.
• Low standard of proof –The very low standard of proof required to prosecute under section 30B, which does not require gross negligence, negligence or recklessness, and with respect to 30B(1), does not even require knowledge (ie It also puts employers at risk of prosecution for actions by employees that they may not be directly involved with or if the victim is a person who visits or strays into a workplace, whether invited or not).
• Exclusionary nature– Exclusion of a whole class of persons from responsibility (employees).
• Extreme, broad reach of s30B– No obvious areas it wouldn’t catch, including sectors such as health (hospitals, medical services), front line services such as policing, farming, transport/ logistics, apprenticeships and training. How will laws address mental health and suicide?
• IM does not improve safety– Despite IM laws in place , the ACT has higher rates of serious injury than both WA and the national rate. Similarly, in the UK, the rate of workplace fatalities has remained relatively flat since IM was introduced. IM simply does not provide the ‘deterrent’ effect anticipated by the Government.
• Independence and expertise of Counsel– concerns over appropriateness of section 30B offences prosecuted by investigator (WorkSafe) rather than independent counsel at DPP as per 30A. This is a significant justice and procedural fairness issue.
• Relevant Court– concerns over s30B being tried in Magistrates Court, rather than in the District Court (a superior Court, same as ‘County Court’ in Victoria), where most indictable offences are usually tried, with only some serious offences going to the Supreme Court.
• Defences– it is not clear as to the applicability of defences under the Criminal Code.
• Other issuesrelating to procedural fairness, privilege, legal representation etc.
• Section 31– Legal and justice issues also arise with s31, which mirrors the drafting of s30B, but deals with causing serious harm to an individual that doesn’t result in death.

The draft Bill has progressed to the Legislative Council and an Inquiry in the legislation is now underway under the Standing Committee on Legislation.

WAFIC is working closely with a range of other industry groups (e.g. WA Farmers and Master Builders Association) to prepare a consolidated industry response to the Standing Committee Inquiry.

WAFIC is seeking comments from industry on the matters raised in the summary above that can be included in a submission.

 Public submissions close on 26 June 2020, however it’s important that members get engaged and continue to share their comments.

Comments should be forwarded to Brett McCallum ([email protected]).