23 February 2023
The South Australian Government is considering feedback on its draft Work Health and Safety (Industrial Manslaughter) Amendment Bill following a period of public consultation.
The public consultation is now closed. It commenced in November 2022, inviting submissions on the draft Work Health and Safety (Industrial Manslaughter) Amendment Bill until 10 February 2023. The Government is now considering feedback that was provided during the consultation period.
The draft Bill is consistent with the Government’s election commitment to introduce legislation to make industrial manslaughter a criminal offence, with a maximum penalty of up to 20 years in prison and significant financial penalties for companies.
In preparing the draft Bill the Government took into consideration preliminary feedback provided by industry stakeholders, including through roundtable forums with the business community and trade unions.
Key elements of the Bill include the following:
- The offence will apply where a person has been either reckless or grossly negligent in conduct which breaches a work health and safety duty under the Work Health and Safety Act 2012 (WHS Act) and which results in the death of an individual.
- The inclusion of a gross negligence standard reflects the recommendations of the 2018 Review of the model WHS laws. A statutory definition of gross negligence is included to make the threshold for criminality as explicit as possible and assist in educating duty holders about their obligations.
- The maximum penalty will be 20 years imprisonment for individuals and $15 million for body corporates. This is consistent with the Government’s election commitment and comparable with the maximum penalties available for industrial manslaughter in other jurisdictions.
- The offence will apply to both Persons Conducting a Business or Undertaking and officers. This recognises that responsibility for breaches of work health and safety duties can occur at many different levels of management.
- Industrial manslaughter offences will not be subject to a 2-year statute of limitations. This is consistent with other jurisdictions and recognises the added complexity of investigating and prosecuting these offences.
- An alternative verdict of guilt for a Category 1, Category 2, or Category 3 offence will be available if the trier of fact is not satisfied that a person is guilty of industrial manslaughter, but is satisfied the person is guilty of a lower tier offence under the WHS Act.
- It is intended that industrial manslaughter will be investigated by SafeWork SA and tried in the South Australian Employment Court, consistent with existing offences under the WHS Act. This reflects that these institutions already have the relevant expertise over work health and safety matters.