Key Takeaways:
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On 11 September 2024, the Tasmanian Parliament passed the Work Health and Safety (Safer Workplaces) Bill 2024 (Tasmanian Reforms), representing the final jurisdiction in Australia to implement an Industrial Manslaughter offence and marking the end of an extended process of law reform across Australia.
The Tasmanian Reforms provide that a PCBU, or an officer of a PCBU, will commit an Industrial Manslaughter offence if an individual that they owe a health and safety duty to dies, or is injured and later dies. The PCBU or officer must have engaged in conduct that caused the death of the individual and they must have been either negligent about causing the death, or reckless to the risk of death or serious injury or illness. For completeness, we note that the Tasmanian Reforms also remove the usual 2-year limitation period under the Work Health and Safety Act 2012 (Tas) (TAS WHS Act). When the Tasmanian Reforms commence, the Industrial Manslaughter offence will carry a maximum penalty of 21 years imprisonment for individuals and $18,000,000 for body corporates.
Separately, in New South Wales, on 13 September 2024, the Industrial Manslaughter offence that was passed in June 2024 commenced. As referenced in our earlier article, the NSW Industrial Manslaughter offence carries the highest maximum penalties of all jurisdictions being a $20 million fine for body corporates and 25 years imprisonment for individual offenders.
Unlike the balance of the work health and safety legislation, which is risk-based, the reforms have introduced a consequences-based offence. That is, it singles out serious breaches of the duty of care which causes the death of a person at work.
The key message arising from this law reform is that the stakes for breaches of safety laws across Australia are now substantially heightened. For most businesses, this should have no real impact on their approach to safety. At best, it will maintain the focus on critical risk control as the area of greatest interest to officers of companies, including the boards of those companies. In the event of a fatality, a more conservative approach is required to investigations and legal representation for both the company and individuals.
Finally, we note all jurisdictions across Australia have taken different approaches to introducing the Industrial Manslaughter offence, resulting in inconsistencies in the legislation. There is no consistency in language, standards and coverage in relation to Industrial Manslaughter. We set out a full summary of Industrial Manslaughter offences in the table below.
| Jurisdiction | Legislation | Person | Breach | Culpability | Maximum Penalty |
| Cth | Fair Work Legislation Amendment (Closing Loopholes) Act 2023
Inserting section 30A into the Work Health and Safety Act 2011 |
A PCBU or officer of a PCBU.
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The person intentionally engages in conduct that breaches their health and safety duty, and the conduct causes the death of an individual.
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The person was reckless or negligent as to whether the conduct would cause the death of an individual.
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Individual – 25 years imprisonment
Body corporate –$18M
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| NSW | Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 Inserting sections 34C, 244B and 244BA into the Work Health and Safety Act 2011 | A PCBU or officer of a PCBU.
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The person engages in conduct that constitutes a failure to comply with their health and safety duty, and the conduct causes the death of a worker or another individual to whom the person’s health and safety duty is owed. | The person engages in the conduct with gross negligence. | Individual – 25 years imprisonment
Body corporate – $20M
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| Qld | Work Health and Safety Act 2011
sections 34C and 34D |
A PCBU or a senior officer of a PCBU.
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The person has a health and safety duty and the person’s conduct causes the death of the individual.
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The person is negligent about causing the death of the worker by the conduct.
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Individual – 20 years imprisonment
Body corporate – $16.13M |
| NT | Work Health and Safety (National Uniform Legislation) Act 2011
section 34B |
A PCBU or an officer of a PCBU.
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The person intentionally engages in conduct that breaches their health and safety duty and causes the death of an individual to whom the duty is owed.
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The person is reckless or negligent about the conduct, breaching the health and safety duty and causing the death of that individual.
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Individual – life imprisonment
Body corporate – $12.025M |
| WA | Work Health and Safety Act 2020
section 30A |
A PCBU or an officer of a PCBU. | The person’s conduct constitutes a failure to comply with the person’s health and safety duty and causes the death of an individual.
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PCBU
The PCBU engages in the conduct knowing that the conduct is likely to cause the death of, or serious harm to, an individual and in disregard of that likelihood.
Officer of a PCBU The PCBUs conduct is attributable to any neglect on the part of the officer or is engaged in with the officer’s consent of connivance, and the officer engaged in the officer’s conduct knowing that the PCBU’s conduct is likely to cause the death of, or serious harm to, an individual, and acted in disregard of that likelihood. |
Individual – 20 years imprisonment and a fine of $5M
Body corporate – $10M |
| SA | Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023
Inserting section 30A into the Work Health and Safety Act 2012 |
A PCBU or an officer of a PCBU.
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The person engages in conduct that breaches their health and safety duty, and the conduct causes the death of an individual to whom the duty is owed.
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The person engages in the conduct with gross negligence or is reckless as to the risk to an individual of death, serious injury, or illness.
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Individual – 20 years
Body corporate – $18M |
| VIC | Occupational Health and Safety Act 2004
section 39G |
A person or an officer of a body corporate, an unincorporated body or association, or a partnership. | The person’s conduct constitutes a breach of an applicable duty that the person owes to another person, and that conduct causes the death of that other person. | The person’s conduct is negligent, as defined in section 39E.
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Individual – 25 years
Body corporate – $19.759M |
| ACT | Work Health and Safety Act 2011
section 34A |
PCBU or an officer of a PCBU. | The person engages in conduct that results in a breach of their health and safety duty and causes the death of a worker, or an injury to a worker and the injury later causes the death of the worker, or the death of another person. | The person is reckless or negligent about causing the death of the worker or other person by the conduct. | Individual – 20 years
Body corporate – $18M |
| TAS | Work Health and Safety (Safer Workplaces) Bill 2024 inserting section 29C into the Work Health and Safety Act 2012 | PCBU or officer of PCBU. | The person owes a health and safety duty to an individual who dies, or is injured and later dies and the person engages in conduct that causes the death of the individual. | The person is negligent about causing the death of the individual by the conduct, or is reckless as to the risk to the individual of death or serious injury or illness. | Individual – 21 years
Body corporate $18,000,000 |
If you would like more information on the Tasmanian reforms or want to understand how this may impact your organisation, reach out to Michael Tooma or Keenan Smith.
