Why industrial manslaughter recommendations should not be supported
NatRoad has a deep commitment to improving safety in the road freight transport sector, both on-road and off-road.
But NatRoad is disappointed that a Senate Committee recently recommended that an Australia-wide offence of industrial manslaughter become part of the work health and safety (WHS) laws.
Making industrial manslaughter part of WHS laws is unnecessary and inappropriate.
There are already existing manslaughter offences in each jurisdiction, under the general criminal law.
For example, the Crimes Act 1900 NSW incorporates a charge for manslaughter with a maximum penalty of 25 years imprisonment.
In recent years, there have been successful prosecutions for workplace deaths under the general crime of manslaughter.
For example, in April 2017 the South Australian Supreme Court imposed a 12-year jail sentence on the company director of a transport company who was found guilty of manslaughter in relation to the death of a truck driver.
In March 2018, the Queensland Supreme Court sentenced a company director to seven years’ jail for manslaughter under general criminal laws, following the electrocution of a 20-year-old worker.
WHS laws also have significant penalties including terms of imprisonment.
The model WHS Act has three categories of offences, which are based on the degree of culpability, risk and harm, and not on the actual consequence or outcome of the breach.
This means that a duty holder can be held to account for a breach, even when it has not resulted in an injury, illness or death.
For the most serious offence involving reckless conduct, the penalties are:
• up to $3 million for a body corporate;
• up to $600,000- and 5-years’ imprisonment for an officer, or an individual who is a person conducting a business or undertaking
• up to $300,000- and 5-years’ imprisonment for an individual.
These penalties are the same for the new chain of responsibility offences under the Heavy Vehicle National Law.
Industrial manslaughter, on the other hand, is triggered only when there is workplace fatality. Including industrial manslaughter provisions into WHS laws would change the focus of the legislation from one that is about the level of risk to one where the outcome becomes the determinant.
This could have the perverse effect of initiating an industrial manslaughter offence in circumstances that may have less culpability than a similar incident that does not result in death.
The ACT introduced an industrial manslaughter offence that commenced on 1 March, 2004.
These provisions have never been used and have not prevented workplace deaths in the ACT. Since 2008, ten industrial deaths occurred in the ACT.
In reality, the threat of a penalty or prosecution is not the only deterrent against poor health and safety practices.
The direct costs of workplace incidents and reputational damage are additional factors.
Industrial manslaughter is not the answer.
Reforms to workplace safety must be aimed at increasing the proactive nature of the laws, educating duty holders on how to comply, improving the quality of investigations and harmonising the approach of state, territory and Commonwealth regulators.
The new chain of responsibility laws are a step in the right direction and will require all parties involved in transport activities to actively manage risks, as opposed to simply reacting to a breach.
However, these laws alone aren’t enough to reach zero fatalities. Australia needs to embrace a better on-road culture, which respects that heavy vehicles have a place on the road.
Passenger and light vehicle interaction with heavy vehicles needs a renewed focus by road safety regulators.