Business owners, Directors, and CEOs may face up to 25 years imprisonment under new Industrial Manslaughter laws

22 October, 2024. 3 minute read.

From 16 September 2024 Industrial manslaughter is now an offence in New South Wales.

This means that business owners, directors and CEOs found guilty of significantly contributing to a workplace fatality may face jail time of up to 25 years under the new charge. The business itself may be fined up to $18 million.

Industrial manslaughter is a special kind of Category 1 offence. Category 1 offences are offences where wilful and deliberate actions have been committed resulting in serious harm to individuals. Prior to the new industrial manslaughter charges, workplace fatalities were deemed Category 1 offences and were charged accordingly. Under the new laws, Directors and CEOs may still face jail time for Category 1 offences that did not necessarily result in a workplace fatality. Charges on Category 1 offences are determined by intent.

See here: Three Categories of WHS Offences and a Table of NSW Penalty Units (2024)

Additions to the WHS Act 2011

The WHS Act 2011 has been amended with a new section, Section 34A which states:

Industrial manslaughter

 (1)  A person commits an offence if:

  (a)  the person is:

  (i)  a person conducting a business or undertaking; or

  (ii)  an officer of a person conducting a business or undertaking; and

  (b)  the person has a health and safety duty; and

  (c)  the person intentionally engages in conduct; and

  (d)  the conduct breaches the health and safety duty; and

  (e)  the conduct causes the death of an individual; and

  (f)  the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.

Note:  There is no limitation period for bringing proceedings for an offence against this subsection (see subsection 232(2A)).

Penalty:

  (a)  In the case of an offence committed by an individual--25 years imprisonment.

  (b)  In the case of an offence committed by a body corporate--$18,000,000.

Monetary fines not a substitute for imprisonment

A "pecuniary penalty" refers to a monetary fine or penalty imposed by a court as a consequence of a business or individual breaching competition or consumer laws. Once a court imposes a pecuniary penalty, the Australian Competition and Consumer Commission (ACCC) takes on the responsibility of enforcing it. The ACCC has various means at its disposal to collect the penalty, including issuing infringement notices, initiating legal action to recover the amount, and working with debt collection agencies. These penalties can be quite substantial and are intended to act as a deterrent, ensuring that individuals and businesses adhere to the regulations enforced by the ACCC.

Section 4B(2) of the Crimes Act 1914 Pecuniary penalties--natural persons and bodies corporate states that pecuniary penalties may apply to body corporates (PCBUs) as well as natural persons (individuals), either as a replacement for or addition to a term of imprisonment.

(2A)  Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty...

The new Industrial Manslaughter laws also state:

When conduct causes death ... Subsection 4B(2) of the Crimes Act 1914 does not apply in relation to an offence against subsection (1) of this section.

This means that a monetary fine cannot be issued as a replacement for imprisonment.

A judge may not proceed with charges of industrial manslaughter if they are not convinced the PCBU or individual is guilty of the prosecuted offence. They may charge the accused with an alternative offence, either a Category 1 offence or a Category 2 offence as described in Sections 31 and 32 of the WHS Act respectively.

Industrial Manslaughter cases

The states of Victoria and Queensland both introduced Industrial Manslaughter laws in 2017.

The first ever prosecution and sentencing of Industrial Manslaughter occurred in 2020 in Queensland.

Another industrial manslaughter case was tried on 25 March 2022, also in Queensland.

As of 2024, there has yet to be an Industrial Manslaughter prosecution in Victoria.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066