Legislative Council: Thursday, July 06, 2023


Work Health and Safety (Industrial Manslaughter) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:53): Obtained leave and introduced a bill for an act to amend the Work Health and Safety Act 2012. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:53): I move:

That this bill be now read a second time.

Today, I introduce the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. As I have said before in this place, this government is firmly committed to the idea that every worker deserves the right to come home safe to their family and loved ones at the end of each working day. Sadly, and far too often, that is not the case.

Last year, 15 South Australians lost their lives from traumatic workplace injuries. More than 100 South Australians have lost their lives at work over the last decade. It is a sobering figure but, if anything, it is likely an underestimate, because 100 lives do not include the deaths from occupational diseases such as asbestosis or silicosis, or death related to mental illness caused by work.

As a community and as policymakers these figures should focus our attention on the essential need for strong work health and safety laws, which avoid preventable workplace injuries and save lives. This bill delivers on this government's commitment to make industrial manslaughter a standalone crime in South Australia, but more importantly it answers the long call of injured workers, of victims' families, of unions and of the community for this parliament to take a stand and make very clear that every death at work is one too many.

This is a reform that, unfortunately, has taken far too long. Where once South Australia could have been a leader on this issue, we have fallen behind the rest of the nation. Industrial manslaughter is now a crime in Western Australia, the Northern Territory, Queensland, Victoria and the Australian Capital Territory. The commonwealth has committed to introducing its own industrial manslaughter laws.

Earlier this year, the commonwealth, state and territory work health and safety ministers unanimously agreed that industrial manslaughter would form part of our model national work health and safety code going forward. With the passage of this bill, South Australia joins other parts of the nation recognising the severity of preventable workplace deaths.

There have been three guiding principles to how the government has approached this important reform. First, industrial manslaughter must be a real deterrent against serious contraventions of work health and safety, and carry a penalty that recognises the dignity of human life and the devastating consequence for families of loved ones who are taken due to workplace injuries.

Second, we should strive for consistency with the recommendations of the 2018 national review into model work health and safety laws, which recommended the introduction of an industrial manslaughter offence in the model Work Health and Safety Act, as well as the industrial manslaughter laws of other jurisdictions across Australia.

Third, industrial manslaughter legislation should be developed in consultation with the community, including South Australian businesses, rather than being imposed from above without discussion. That is because the essential aim of this bill is to deter unlawful dangerous behaviour, and to achieve that we need the cooperation of the business community and their representatives. Each of those principles are reflected in the bill that is now before parliament.

This bill is the product of an extensive consultation process. This government was elected with a clear mandate to criminalise industrial manslaughter, which formed an important pillar of our industrial relations platform. Following the election, we released a discussion paper and held roundtable forums with business groups and trade unions to discuss the design of these laws.

Following those round tables we released two consultation drafts of this bill for comment, the first between November 2022 and February 2023 and a second from April to May 2023. These laws were also discussed at a number of forums and meetings over the same period. I am very grateful for the constructive feedback we have received from both unions and business groups during this consultation process, and I am pleased to say that much of that feedback has been taken into account in this final bill.

Some have questioned why these laws are necessary when the offence of manslaughter already exists under our criminal laws. There are several reasons. One of the primary functions of parliament is to protect the dignity of human life and to vindicate victims of gross criminal misconduct. We have watched over past decades as South Australia has fallen further and further behind in the nation in relation to industrial manslaughter laws. It would be a disturbing outcome if that failure was seen to reflect that this parliament treats the tragedy of preventable workplace deaths as a lesser concern than do other jurisdictions across the nation.

As a matter of legislative policy, it is important that industrial manslaughter is integrated within our work health and safety framework, not something that stands apart from it. Criminal manslaughter laws are effective at dealing with the misconduct of an individual person, but not where the death results from a chain of decision-making failures by a large corporation, for example, where a serious health and safety risk simply falls through the cracks.

The reality is that our criminal laws and our work health and safety laws are monitored and enforced by different investigative agencies applying different principles. It is important that both businesses and workers have certainty that the standard of misconduct from industrial manslaughter is assessed against the same health and safety duties already owed under the Work Health and Safety Act. If you are complying with your existing work health and safety duties, then you have nothing to fear from these laws.

The sole function of industrial manslaughter laws is to ensure that where those duties are breached, and where that results in the death of a person, the penalty is commensurate with the gravity of the offence. These laws will result in a system that is more just to the victims, easier to understand for the community, and fairer to businesses that do the right thing and meet their responsibilities and obligations under the Work Health and Safety Act.

Turning to the precise provisions of the bill, the offence of industrial manslaughter will be inserted in section 30A of the Work Health and Safety Act. Subsection (1) provides that the offence of industrial manslaughter will apply where a person has a health and safety duty, engages in conduct which breaches that duty, the conduct causes the death of an individual to whom the duty is owed, and the person engages in the conduct either recklessly or with gross negligence.

The adoption of the criminal standard of either recklessness or gross negligence is consistent with the overwhelming majority of states and territories across Australia. The only state that does not provide for a negligence standard is Western Australia.

An industrial manslaughter offence will incur a penalty of up to 20 years' imprisonment for a person and a financial penalty of up to $18 million for an offence committed by a body corporate. These penalties are consistent with the uniform national penalties unanimously agreed to by the commonwealth, state and territory work health and safety ministers earlier this year.

The offence of industrial manslaughter will apply to both persons conducting a business or undertaking and officers. This also consistent with industrial manslaughter laws in other jurisdictions. The offence is subject to the same exceptions for volunteers which already exist under section 34 of the Work Health and Safety Act and which already apply to other criminal offences.

Statutory definitions of recklessness and gross negligence will be inserted in section 4 of the Work Health and Safety Act. This directly responds to requests from stakeholders seeking greater legal certainty about these criminal thresholds during the consultation process. The definitions of recklessness and gross negligence are based on the ACT and NT criminal codes, which were endorsed in the 2018 Review of the Model Work Health and Safety Laws when it recommended a gross negligence standard for industrial manslaughter.

These definitions are intended to codify the common law of recklessness and gross criminal negligence. They are not intended to impose a higher criminal threshold than would otherwise be found at common law.

Subsection (2) provides that conduct is taken to cause the death of an individual if it 'substantially contributes' to the death. This provision reflects the common law of causation and makes clear the mere fact that conduct that contributes to a death is alone insufficient. The concept of conduct 'substantially contributing' to a death is intended to include conduct that causes a person to be injured or to contract an illness (including a mental illness) that later causes the person's death.

It is also intended to include deaths due to injuries or illnesses which are caused cumulatively, such as exposure to hazardous chemicals, or injuries which arise over an extended period of time, such as dust diseases like asbestosis or silicosis.

Subsection (3) provides for the availability of an alternative verdict, where a person may be convicted of a category 1, category 2, or category 3 offence under the Work Health and Safety Act if their conduct does not meet the relevant threshold for an industrial manslaughter conviction. These alternative verdicts are only available if an industrial manslaughter prosecution is commenced within the same statutory limitation period as would apply to the lesser offence.

Section 31 of the act is also amended to introduce an alternative criminal threshold of gross negligence to category 1 offences. This amendment is consistent with recent changes to the model national work health and safety laws. While the government had initially intended to progress these changes as part of a later bill, feedback from the business community was that this should be done concurrently with the introduction of industrial manslaughter to avoid any incentive for a prosecuting authority to effectively 'overcharge' an offence as industrial manslaughter when a category 1 charge may be more appropriate.

Section 232 of the act is amended to make it clear that there is no statute of limitations for an industrial manslaughter prosecution. This is consistent with industrial manslaughter laws in other jurisdictions, as well as the ordinary law of criminal manslaughter.

I want to close by expressing my immense gratitude to the work of the many unions, community organisations and family members touched by workplace tragedies, family members like Andrea Madeley and Pam Gurner-Hall, who have campaigned for these laws for years and years. I had the pleasure of standing with Pam Gurner-Hall at the Port Adelaide Workers Memorial when the government announced we would be progressing industrial manslaughter laws last year. Pam has been a passionate and tireless advocate for health and safety in workplaces after the tragic death of her partner, Jorge Castillo-Riffo, at the Royal Adelaide Hospital site in 2014.

I also particularly want to acknowledge the advocacy of Andrea Madeley, who has been such a valuable support to so many others. Andrea lost her 18-year-old son, Daniel, in a horrific workplace accident in 2004 when he was in the first year of his apprenticeship as a toolmaker. In the midst of that terrible loss, Andrea had to navigate a criminal investigation, legal proceedings and a coronial inquest.

As a result of that experience, Andrea founded the advocacy group Voice of Industrial Death, which has provided support to numerous other families affected by workplace tragedies. In 2011, informed by her own exposure to the legal system, Andrea made the decision to study law. Now, as a lawyer, she helps people injured at work navigate the complexities of our legal system.

Andrea has pressed governments of both political persuasions to take stronger action on workplace safety and has spoken frequently with my office during the development of this bill. The fact that Andrea has been able to devote her life to doing so much good after such a horrendous tragedy is nothing short of inspirational. It is entirely fitting that in 2023 Andrea was nominated for Australian of the Year.

The introduction of industrial manslaughter laws in this state has taken far too long, but I hope that, thanks to the tireless work of people like Andrea and Pam, these laws will go some way to ensuring that no other family has to go through that experience again.

I wish to give my thanks to those in this chamber and in this parliament who have considered, pushed for, held committees for and even introduced laws for this in the past, including the Hon. Tammy Franks in this chamber. I commend the bill to this council and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title


These clauses are formal.

Part 2—Amendment of Work Health and Safety Act 2012

3—Amendment of section 4—Definitions

This clause inserts new defined terms of industrial manslaughter offence, gross negligence and reckless for the purposes of Part 2 of the Act.

4—Insertion of section 30A

This clause inserts a new section 30A containing the offence of industrial manslaughter into the principal Act.

30A—Industrial manslaughter

Proposed section 30A establishes the offence of industrial manslaughter.

A person commits an industrial manslaughter offence if they have a health and safety duty and engage recklessly or with gross negligence in conduct that breaches that duty, and the conduct causes the death of a person to whom the health and safety duty is owed.

The proposed maximum penalty is 20 years imprisonment for an offence by an individual, or an $18,000,000 fine in the case of an offence by a body corporate.

Proposed section 30A(3) provides for alternate verdicts in a trial for an industrial manslaughter offence.

5—Amendment of section 31—Reckless conduct—Category 1

This clause amends section 31 of the principal Act to include gross negligence as an element of a Category 1 offence, and amends the title to reflect the change.

6—Amendment of section 216—Regulator may accept WHS undertaking

This clause amends section 216 of the principal Act to indicate that WHS undertakings may not be accepted for a contravention or alleged contravention that is an industrial manslaughter offence.

7—Amendment of section 230—Prosecutions

This clause amends section 230 of the principal Act to disapply subsection (4) in relation to an industrial manslaughter offence.

8—Amendment of section 231—Procedure if prosecution is not brought

This clause amends section 231 of the principal Act to allow a person to make a written request to the regulator for a prosecution to be brought in certain circumstances where the person considers that an industrial manslaughter offence has occurred, and no prosecution has been brought.

9—Amendment of section 232—Limitation period for prosecutions

This clause amends section 232 of the principal Act such that the limitation period for prosecutions for offences against the principal Act does not apply in relation to an industrial manslaughter offence.

Debate adjourned on motion of Hon. D.G.E. Hood.