Industrial manslaughter – 5 years in

Since the beginning of civilisation, there have been laws prohibiting unlawful killing.

Those laws are continued today¹ and are regularly applied where there has been a workplace death.²

However, prosecuting corporate entities under the general law is difficult. This is because the prosecutor often must identify an individual director or employee as the directing mind and will of the corporation, who is at fault. Aggregating the negligence of more than one individual would often not succeed.

From a practical perspective, this means that large corporations, particularly those with elaborate corporate structures, are largely immune from prosecution for manslaughter under the general law; while in contrast, small single director companies are much more vulnerable.³

The bias in favour of large corporations is not in any way consistent with the objectives of work health and safety legislation.

To address the practical difficulties in the general law, the Australian Capital Territory introduced the first offence of ‘industrial manslaughter’ in 2003.⁴ The Minister⁵ introducing the offence suggested that the ACT offence would be enforced, saying, “workers deserve to know that there is more than an insignificant fine compelling corporations to provide safe workplaces”.

Notwithstanding the bold start, no one in the ACT has been charged with industrial manslaughter.

Queensland was the next government to introduce industrial manslaughter laws, and since 23 October 2017⁶ businesses and their executives have been bound by the industrial manslaughter laws in Queensland.⁷

The Queensland industrial manslaughter laws attract significant penalties of up to 20 years’ imprisonment and fines up to $10 million (in most cases) if the employer is to be seen as at fault.⁸

Unlike the ACT, Queensland has been active in utilising its industrial manslaughter laws. To date, Brisbane Auto Recycling Pty Ltd has been convicted and fined $3 million⁹ and Jeffrey Owen has been convicted and sentenced to five years’ jail¹⁰ for industrial manslaughter offences.

In a third case, Orko Fertilizers Pty Ltd was charged with an industrial manslaughter offence, but managed to persuade the WHS Prosecutor to accept a plea on a lesser charge and was fined $250,000.¹¹

Ironically, the current convictions of companies for industrial manslaughter involve small corporations. In addition, to date no one has successfully contested an industrial manslaughter charge. This contrasts with mainstream criminal law, where people regularly successfully contest charges of unlawful killing.

Industrial manslaughter offences are now not unique to Queensland. They appear across Australia.¹² In addition, the offences are not confined to the Work Health and Safety Act 2011 and they appear in many different statutes,¹³ making them a common feature of modern regulatory frameworks.

Industrial manslaughter offences are significantly different from the remainder of the provisions in the Work Health and Safety Act 2011 (Qld) (the Act) and can be viewed in isolation. For the main part, the Act creates duties which, if breached, can lead to a range of offences. The industrial manslaughter laws do not have the duty-offence paradigm.

Under the industrial manslaughter laws, a business commits an offence if:

• a worker dies from injuries suffered at work, and
• the businesses conduct causes the death, and
• the business is negligent.¹⁴

A similar offence exists for a senior officer of the corporation.¹⁵ The phrase ‘senior officer’ is not well defined in the legislation, but the Queensland Government has indicated that it may include:

• a director or secretary of a corporation
• Chief Executive Officers
• Chief Financial Officers or Chief Operations Officers
• General Counsel
• General Managers
• officeholders in an unincorporated association (for example, a club president).¹⁶

Although the offence of industrial manslaughter only applies to ‘senior officers’ and not ‘officers’ in general, the distinction can be circumvented due to the obligation all officers have to exercise ‘due diligence’ to ensure that the business complies with the Act.¹⁷

If a business has committed industrial manslaughter, then the officer could be charged with failing to ensure that the business complied with the Act. A conviction of an ‘officer’ of failing to ensure that the business did not commit industrial manslaughter could attract a maximum penalty of five years’ imprisonment.¹⁸

Under the industrial manslaughter laws, a person need not die immediately. This is particularly important where workers die many years after the causal event or events (for example, silicosis).

In addition, the causal event or events can be either an act or omission, and it need only substantially contribute to the death.¹⁹ This might be important where a person dies from multiple causes (for example, silicosis and smoking causing cancer and respiratory and vascular disease).

However, the industrial manslaughter laws do not excuse the prosecutor from the obligation to identify the specific act or omission that is said to have caused the death. This can be extremely problematic for prosecutors where the causal events may have occurred over many years and for which memory and records are poor (for example, silicosis).²⁰

With either a corporation or a senior officer, it does not matter that the person charged did not intend the death²¹ and they may still be liable even though the person’s conduct was not the sole cause of the death.²²

Consistent with the move away from intention, the industrial manslaughter laws were designed to capitalise on imputation provisions in the Act.²³ The imputation provisions provide that conduct engaged in on behalf of the business by an employee, agent or officer that appears to be within the scope of their engagement, is deemed to be conduct of the business. Because the test is an objective one, conduct of another person can be held to be the conduct of the business, no matter how out of keeping it is with the intended operations of the business.

In order for a person to be guilty of industrial manslaughter, their negligence must have caused the death. The concept of negligence under the criminal law involves a large or serious departure from reasonable standards of conduct. It must go beyond a case where compensation would be an adequate punishment. It must be of a category of behaviour where the only adequate punishment is for the person to be branded a criminal and for them to be punished for it.²⁴

A charge of industrial manslaughter is a crime.²⁵ This means a person can be arrested before being charged,²⁶ may be held in custody until trial,²⁷ or alternatively, may be compelled to surrender their passport as a condition of bail.²⁸

In a curious gap in the legislation, the industrial manslaughter offences do not extend to the death of non-workers (for example, customers) and do not apply to volunteers.²⁹

The process of investigating and prosecuting a person for industrial manslaughter is a long one. In the prosecution of Brisbane Auto Recycling Pty Ltd, it was about a year from the date of the offence until the date of sentence.³⁰

In the case of Jeffrey Owen, it was about three years from the date of the offence until the date of sentence.³¹

In other indicatable prosecutions, the delay has been significantly longer and a five-year delay is not unusual.³² Both Brisbane Auto Recycling Pty Ltd and Mr Owen pleaded guilty, but Mr Owen has appealed the decision. It may be significantly longer before Mr Owen’s case is finally resolved. Mr Owen was granted bail prior to hearing, but had he not been granted bail, it would have been a long wait in prison.

A politically astute prosecutor might prefer industrial manslaughter prosecutions. For other offences under work health and safety legislation, if the prosecution is unsuccessful, the WHS Prosecutor³³ may be ordered to pay the defendant’s legal costs.³⁴

For industrial manslaughter prosecutions, if the jury finds the defendant not guilty, the defendant will be unlikely to recover any legal costs. In addition, in industrial manslaughter prosecutions, the reasons for the jury making findings of fact are often never known, so it is unlikely that any criticism will ever come from a jury.

In addition, it is rare for a judge to publish reasons following a finding of not guilty; whereas if the jury finds the defendant guilty, the judge is more likely to focus on the culpability of the defendant. Both from a cost and reputational perspective, industrial manslaughter prosecutions are a less risky form of prosecution for the WHS Prosecutor.

The existence of the industrial manslaughter provisions does not mean that businesses and their executives will necessarily be charged with an industrial manslaughter offence. From a statistical perspective, charges are more frequent under the other provisions of the Act and an industrial manslaughter charge can only occur where there has been a death.

That being said, the risk itself should be taken serious enough to elicit the implementation and review of risk management strategies on a regular basis.

Businesses need to also be mindful that where there is a death, there could be a coronial inquest. Completely avoiding a charge under the Act can increase the risk of an inquest and, if the Coroner is critical, could result in a charge under the traditional manslaughter provisions.³⁵

To further reduce the risk of industrial manslaughter charges, business should:

1. Ensure that a risk assessment of the businesses operations has been undertaken to identify those activities that could potentially cause a death.
2. Start thinking about how the business and the businesses officers could demonstrate the exercise of reasonable precautions and proper diligence.
3. Where a death occurs, take the incident extremely seriously, secure the scene and render it safe, immediately get professional help, and notify in accordance with obligations.

Applying these simple steps can be difficult. It can be useful to take early steps to protect yourself and the business against the risk of prosecution by reviewing and potentially modifying the:

• role of the person recognised as the “person conducting the business or undertaking” under the legislation³⁶
• role of the person recognised as an “officer” or “senior officer” under the legislation³⁷
• role of anyone who funds or controls the business
• safety and health management system
• management structure, and
• standard terms of engagement of contractors.

Traditional manslaughter offences and the newer industrial manslaughter offences are well established as part of the legal landscape.

As such, it is important for businesses and executives to understand their risk profile and to develop mechanisms to eliminate or where not possible minimise the risk. The time has come to proactively manage those risks.

Alan Girle is a Special Counsel, employment, safety and migration, at Macpherson Kelley.

Footnotes
¹ Criminal Code Act 1899 (Qld).
² Caravan Park Operator (Offence date: 1999); Robert William Webber (Offence date: 2000); Mark Spence (Offence date: 2008); Nathan Brian Day (Offence date: 27 February 2012); Peter Francis Colbert (Offence date: 7 March 2014, Convicted: 17 June 2015); Claudio D’Alessandro (Offence date: 6 October 2016); Neil Norris (Offence date: 10 April 2017).
³ Refer to Boland, M. ‘Review of the model Work Health and Safety laws Final report’, Dec 2018 at p121 and WHSQ, ‘The industrial manslaughter offence under Queensland legislation’, 22 Dec 2017.
⁴ Initially in section 49C of the Crimes Act 1900 (introduced 4 December 2003) and now in section 34A of the Work Health and Safety Act 2011.
⁵ The Honourable Katy Gallagher, ALP, 15 May 2002.
⁶ Refer to the Queensland Work Health and Safety and Other Legislation Amendment Act 2017.
⁷ Refer to sections 34A-34D of the Work Health and Safety Act 2011, sections 48L-48O of the Electrical Safety Act 2002, sections 48A-48D of the Coal Mining Safety and Health Act 1999, sections 45A-45D of the Mining and Quarrying Safety and Health Act 1999, sections 799I-799L of the Petroleum and Gas (Production and Safety) Act 2004, sections 54A-54D of the Explosives Act 1999, and sections 25A-25D of the Safety in Recreational Water Activities Act 2011.
⁸ Refer to sections 34C and 34D of the Work Health and Safety Act 2011 and to section 5 of the Penalties and Sentences Act 1992.
⁹ R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113.
¹⁰ R v Jeffrey Owen [2022] QDCSR 168.
¹¹ owhsp.qld.gov.au/court-report/company-fined-250000-failing-address-risk-dangerous-conveyor-belt.
¹² For example:
ACT: Initially in section 49C of the Crimes Act 1900 (introduced 4 December 2003) and now in section 34A of the Work Health and Safety Act 2011.
Victoria: Sections 39A-39G of the Occupational Health and Safety Act 2004.
NT: Sections 34A-34E of the Work Health and Safety (National Uniform Legislation) Act 2011.
WA: Section 30A of the Work Health and Safety Act 2011.
SA: Proposed section 268A of the Work Health and Safety Act 2011, proposed in the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2020.
¹³ Refer to sections 48L-48O of the Electrical Safety Act 2002, sections 48A-48D of the Coal Mining Safety and Health Act 1999, sections 45A-45D of the Mining and Quarrying Safety and Health Act 1999, sections 799I-799L of the Petroleum and Gas (Production and Safety) Act 2004, sections 54A-54D of the Explosives Act 1999, and sections 25A-25D of the Safety in Recreational Water Activities Act 2011.
¹⁴ Refer to section 34C of the Work Health and Safety Act 2011.
¹⁵ Ibid, section 34D.
¹⁶ Refer to WHSQ, ‘The industrial manslaughter offence under Queensland legislation’, 22 Dec 2017.
¹⁷ Refer to section 27 of the Work Health and Safety Act 2011.
¹⁸ Ibid, section 31.
¹⁹ Ibid, section 34B.
²⁰ SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117.
²¹ Refer to section 34B(3) of the Work Health and Safety Act 2011.
²² Ibid, section 34A(2).
²³ Ibid, sections 244 and 251. See also R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at paragraph [59] and Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at paragraph 33.
²⁴ Refer to the Supreme and District Courts’ Criminal Directions Benchbook (Qld).
²⁵ Refer to sections 34C(2) and 34D(2) of the Work Health and Safety Act 2011.
²⁶ Refer to section 65 of the Justices Act 1886.
²⁷ Refer to section 89 of the Justices Act 1886.
²⁸ Refer to section 11 of the Bail Act 1980.
²⁹ Refer to section 34B of the Work Health and Safety Act 2011.
³⁰ R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113.
³¹ R v Jeffrey Owen [2022] QDCSR 168. Mr Owen was sentenced to five years’ imprisonment, suspended after serving 18 months for an operational period of five years.
³² Refer to R v Oil Tech International Pty Ltd [2020] QDC (unreported), where the delay was about five years; R v Lavin [2019] QCA 109, where the delay was about five years; R v Illawarra Enterprises (Qld) Pty Ltd and Michael Walsh [2022] QDCSR 785, where the delay was almost four years; and R v Cordwell Resources Pty Ltd and Brian Andrew Cordwell [2021] QDCSR 816, where the delay was about two years.
³³ Refer to schedule 2 of the Work Health and Safety Act 2011.
³⁴ Refer to sections 530 and 545 of the Industrial Relations Act 2016 and section 158 of the Justices Act 1886.
³⁵ Reynolds, S, R v Day, 15 March 2018 at: ablawyers.com.au/ABLA/media/Images/InternalBanner/R-V-Day.pdf. See also abc.net.au/news/2022-08-23/gas-contractor-charged-over-fatal-mix-up/14028988.
³⁶ Refer to section 5 of the Work Health and Safety Act 2011.
³⁷ Refer to schedule 5 of the Work Health and Safety Act 2011 and section 34A of the Work Health and Safety Act 2011.