Business owners, Directors, and CEOs may face up to 25 years imprisonment under new Industrial Manslaughter laws
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 will 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. Directors and CEOs may still face jail time for Category 1 offences that did not necessarily result in a workplace fatality. Category 1 offences are determined by intent.
The WHS Act 2011 has been amended with a new section, Section 30A 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)).
(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.
When conduct causes death
(2) For the purposes of subsection (1), a person's conduct causes a death if the conduct substantially contributes to the death.
No substitution of pecuniary penalty for imprisonment
(3) Subsection 4B(2) of the Crimes Act 1914 does not apply in relation to an offence against subsection (1) of this section.
Alternative verdicts
(4) If, in proceedings for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of the prosecuted offence; and
(b) is satisfied that the person is guilty of an offence (the alternative offence) that is a Category 1 offence or a Category 2 offence;
the trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.
No limitation period in relation to alternative verdicts
(5) For the purposes of subsection (4), it does not matter whether the proceedings mentioned in that subsection were brought at a time when, or in circumstances in which, bringing proceedings for the alternative offence would have been permitted under section 232 (limitation period for prosecutions).
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
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