Industrial Manslaughter in NSW
How safe is your workplace? Wikimedia Commons
The Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 was passed and received assent on 24 June 2024. [1] It marks a significant milestone in workplace safety legislation in NSW. Although the date of commencement has not yet been set, it is expected soon. New South Wales is the second-to-last Australian state to introduce industrial manslaughter laws, with Queensland and Victoria passing legislation in 2017 and 2022 respectively. The Amendment will establish multiple new sections and amendments in the Work Health and Safety Act and the Crimes Act 1900. [2]
Tragically, despite over 300 industrial deaths since 2019, one that received media coverage is the horrific death of Christopher Cassaniti. Christopher was an apprentice construction worker and just four days after his 18th birthday, he died on his worksite in Macquarie Park crushed by 17 metres worth of scaffolding. [3] A subsequent investigation found almost 18,000 kilograms were loaded on the scaffolding when it could only hold 675 kilograms. [4]
The new legislation aims to provide clearer definitions and elements, eliminating ambiguity in the current legal framework. The act will not create any new WHS obligations but shall rather reinforce the importance of complying. Section 34C establishes industrial manslaughter as an offence by declaring a person commits industrial manslaughter if that person has a health and safety duty and the person is a person conducting a business or undertaking and engages in conduct that constitutes a failure to comply with persons health and safety duty, and causes a death of a worker to whom is owed a duty. Previously the WHS Act had a limitation period requiring prosecutions to be commenced within two years of the offence being committed. But under section 34E there will be no limitation period for proceedings to be brought for section 34C. [5]
NSW has set the maximum penalties for industrial manslaughter at 25 years imprisonment and the highest maximum fine of $20,000,000, the highest in Australia, surpassing Victoria’s maximum fine of $19,200,000. These severe penalties align with existing penalties of manslaughter under the Crimes Act 1900 and are intended to reflect the culpability of the offender and gravity of the offence. [6]
While holding individuals and corporations accountable is critical for workplace safety, the enforcement of industrial laws face significant challenges. Despite the severe penalties, workplace deaths remain devastating, with lasting mental, emotional, physical and financial harm on all people involved. Although the introduction of the Act in NSW is welcomed with open arms, the experience of other Australian states show that successful prosecution of industrial manslaughter has been extremely rare. [7] With Queensland only prosecuting and convicting its first corporation in 2020 and an individual in 2022 despite the laws being passed since 2017. [8] Additionally with Victoria more recently convicting a corporation in 2024 despite the legislation being introduced in 2022. These cases highlight the difficulties in securing convictions as proving gross negligence is required. [9]
The Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 represents a significant step towards stronger accountability for workplace safety in NSW. As NSW joins other states in adopting these laws there will be many families who are grateful for this new legislation. However, like any new law, there will be challenges for prosecuting individuals and large corporations into the future.
[1] Work Health and Safety Act 2011 NSW.
[2] Work Health and Safety Act 2011 NSW; Crimes Act 1900 NSW.
[3] Parliament of New South Wales, Hansard, ‘Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 Second Reading Speech’ (Online Report, 4 June 2024)
<https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/'HANSARD-1323879322-141670'>.
[4] Michael Tooma and Isabel Harrison, ‘Legal Update – Latest Reforms to Work Health and Safety Laws in NSW’, (Web Page, 04 July 2024) <https://hamiltonlocke.com.au/legal-update-latest-reforms-to-work-health-and-safety-laws-in-nsw/c>.
[5] Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 https://www.parliament.nsw.gov.au/bill/files/18597/Passed%20by%20both%20Houses.pdf
[6] Lander & Rogers, ‘Overview of Industrial Manslaughter Laws Around Australia’s’ (Web image, November 2024) <https://assets.ctfassets.net/7bkqs8vgq34y/2twdsAVXvKHDca0j2k63eO/1e7630dac93935fbf73e56581dc6ad19/LR__Overview_Industrial_manslaughter.pdf>; Crimes Act 1900 NSW s 18.
[7] Marie Boland, ‘Review of the model Work Health and Safety Laws Final Report’ (Report, December 2018) <https://www.safeworkaustralia.gov.au/system/files/documents/1902/review_of_the_model_whs_laws_final_report_0.pdf>.
[8] Lander & Rogers, ‘Industrial manslaughter soon to be an offence in almost every jurisdiction’ (Web page, November 2023) <https://www.landers.com.au/legal-insights-news/industrial-manslaughter-soon-to-be-an-offence-in-almost-every-jurisdiction>.
[9] Tasmine Chalvatzis, ‘Review of industrial manslaughter laws across Australia – are workers who die on worksites better protected? (Web page, 30 April 2024) <https://attwoodmarshall.com.au/industrial-manslaughter-laws-across-australia/>.
This article was originally published under the title ‘Industrial Manslaughter in the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (NSW)’ in The Brief Edition 3, 2024 — Ad Aeternitatem.