Chapter heading 1

TABLE 7: Offence provisions relating to work-related fatalities

Jurisdiction	Act and section	Description of provision	Penalty
NSW	NSW Act, s.32A	Conduct of duty holder causes death of a person to whom a duty is owed and duty holder is reckless as to danger of death or serious injury.	Corporation: $1,650,000 Natural person: $165,000 or 5 years imprisonment
Vic	Vic Act, s.32	Recklessly place another person at a workplace in danger of serious harm	Corporation: $1,020,780 Natural person: $204,156 or 5 years imprisonment
Qld	Qld Act, s.24	Person fails to discharge workplace health and safety obligation causing multiple deaths or death or grievous bodily harm	Corporation: $750,000 (multiple deaths), $ 375,000 (single death) Natural person: $150,000 or 3 years imprisonment (multiple deaths), $75,000 (single death) or 2 years imprisonment
WA	WA Act, s.19A(1), (2)	Breach of general duty to ‘employee’ with gross negligence; breach of general duty causing death or serious harm to ‘employee’.	Breach by corporation with gross negligence: $500, 000, first offence; $625,000 subsequent offence. Breach by individual: 50% of corporation fine or 2 years imprisonment. Breach by corporation causing death, etc: $400,000 first offence; $500,000 subsequent offence. Breach by individual: 50% of corporation fine
SA	SA Act, s.59	Person must not act in a manner that creates a substantial risk of death or serious harm to another person in a workplace	Corporation: $1,200,000 Natural person: $400,000 or 5 years imprisonment
Tas	Tas Act, s.9	Duty of care to other persons at work	Corporation: $150,000 Natural person: $50,000
NT	NT Act, s.82	Offence against the Act is committed intentionally, offender ought to know it may result in death or injury and death of a person occurs	Corporation: $1,375,000 Natural person: from $27,500 to $275,000 or 5 years imprisonment
ACT	ACT Act, ss.33,34 Note: The ACT provides for industrial manslaughter in Part 2A of the Crimes Act 1900 (ACT)	Non-compliance with safety duty causes serious harm to someone and duty holder is either negligent about the matter or reckless	Corporation: $750,000 (negligence), $1,000,000 (recklessness) Natural person: $150,000 or 3 years imprisonment (negligence), $200,000 or 7 years imprisonment (recklessness)
Cwth	Cwth Act, Schedule 2, cl.18, 21	Breach of duty or other specified obligation causes death or serious injury and offender was negligent or reckless as to consequence of breach	The Commonwealth or Commonwealth authority or a licensee (normally a corporation): $495,000 Natural person: $99,000

14. 
    The general criminal law may also apply, depending on the circumstances of the offence (e.g. manslaughter, grievous bodily harm, recklessly causing serious injury). Also, where a fatality occurs in circumstances where another type of health and safety regulation applies, the offender might be subject to the penalties that apply under the relevant law (e.g. road safety laws, mining safety laws in some jurisdictions).
    
15. 
    We are, however, unaware of any successful Australian prosecutions for manslaughter in such circumstances.
    
16. 
    By contrast, such prosecutions are not uncommon in England and Wales. Analysis of 24 incidents in those countries that involved at least one death (54 deaths in total) resulting in a conviction for the criminal law offence of manslaughter showed that there were convictions of seven companies, 17 directors and nine business owners who were sole traders or partners.²⁹⁶ The longest sentence of imprisonment that was imposed was nine years (reduced to seven years on appeal).²⁹⁷ In many cases, the periods of imprisonment were suspended.
    
17. 
    Previous reviews of OHS laws in Australia have all recognised the seriousness of work-related deaths, but have been divided on how the OHS Acts should deal with the matter.
    
18. 
    Maxwell distinguished offences of non-compliance with duties of care from other criminal law offences of negligently or recklessly causing serious injury and manslaughter. This was because, unlike other criminal law offences, OHS offences were punishable whether or not harm occurred, without any question of causation. In the event, Maxwell found that manslaughter fell outside his review.²⁹⁸
    
19. 
    The SA Review expressed the view that there would be little benefit in pursuing industrial manslaughter under SA’s OHS laws, given that a charge for manslaughter against anyone where death was caused either intentionally, recklessly or negligently at the workplace could be brought under the Criminal Law Consolidation Act 1935 (SA).²⁹⁹
    
20. 
    On the other hand, the McCallum Review³⁰⁰, considered that a separate category of offence, involving both higher penalties and a wider range of penalty options, would be the best way to ensure that cases of workplace death are dealt with appropriately and that the necessary general deterrent effect is achieved. McCallum reached this view after finding that there was a failure of sentencing patterns to keep pace with legislated increases in maximum penalties, and the apparent associated failure of general deterrence. This initiative “…would put employers on extra notice as to the need for them to be vigilant in ensuring that risks which might lead to death are to be eliminated from the workplace, which would in turn, in our opinion, have a cascading effect on all areas of occupational health and safety.”³⁰¹