Industrial manslaughter – moving towards a national regime

By Daniel Crute|
2019-07-03T15:05:38+10:00
July 17th, 2019|

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In Australia, only the ACT and Queensland have laws covering the crime of industrial manslaughter, whilst Victoria is considering passing similar legislation.


Queensland passed its laws in response to tragedies at Dreamworld amusement park and the death of workers at Eagle Farm in Brisbane, although curiously these laws only apply to workers and not visitors.

In late April, federal ALP committed to working with state and territory governments to establish a uniform industrial manslaughter offence across Australia. The ALP has promised to establish a national advisory committee made up of representatives from each state and territory who have been personally impacted by a serious workplace injury or death.

Representatives would provide advice to Australian workplace health and safety ministers and develop recommendations to governments.

The federal Coalition government believes existing laws to be adequate and has consistently argued against industrial manslaughter laws. In Queensland, the

Liberal National Party opposition voted against the laws introducing the offence of industrial manslaughter.

RECENT REVIEWS – MOMENTUM BUILDS SAFE WORK AUSTRALIA 2018

In 2018, Safe Work Australia conducted a review of the national model Work Health and Safety (WHS) laws which all jurisdictions except Victoria and Western Australia have implemented. The former Executive Director of SafeWork SA conducted the review which led to a final report being published in February of this year (Boland 2019). One of the report’s recommendations was a new offence of industrial manslaughter being introduced into the model WHS laws. The ACTU strongly supports this recommendation.

Part of the problem identified in the review was that laws in this area were inadequate. Under existing laws, there is the offence of “negligent manslaughter” for corporations. But convictions are rare with big hurdles to getting a conviction. Prosecutors need to identify a grossly negligent individual who embodies the company and whose conduct is attributable to the corporation.

 SENATE INQUIRY 2018

In late 2018, the Australian Senate Education and Employment References Committee completed its Inquiry into industrial deaths in Australia. It recommended that Australian governments work together to introduce a nationally consistent industrial manslaughter offence into the model WHS laws, using the Queensland law as a starting point.

Unsurprisingly, Liberal National coalition senators on the committee issued their own dissenting recommendations in the report. They did not support implementing industrial manslaughter laws, stating that “focus on holding companies and managers accountable for breaches (sic) in their WHS duties regardless of outcome…is the appropriate approach to continue to drive a reduction in fatalities and injuries in the workplace” (Australian government 2018).

 HOW WOULD SUCH LAWS AFFECT ANMF MEMBERS?

Compared to many industries and occupations in Australia, health does not have as many workplace deaths. However, health workers are not immune from deaths in their workplace.

The tragic case of Orange nurse Robert Fenwick is one sad example of a workplace death suffered by a nurse.

Mr Fenwick was stabbed by a patient at the mental health facility he worked at in 2011. Had there been industrial manslaughter laws at the time of his death regulators could have looked at the surrounding circumstances of Mr Fenwick’s death to see if an offence had been committed.

THE AUSTRALIAN PUBLIC SUPPORT INDUSTRIAL MANSLAUGHTER LAWS

Many Australian unions have long pushed for nationally consistent industrial manslaughter laws.

It is also clear that the general public support such laws. Polling conducted for the ACTU in February this year shows that a majority of Australians support the introduction of industrial manslaughter laws and an expanded role for unions in ensuring workplace safety. Nearly 60% of Australians want laws that would see employers who are responsible for workplace deaths held accountable and ultimately sent to jail, with only 21% of people opposed to such laws. Even a majority of Liberal National coalition voters support such a law (uComms 2019).

As the ALP lost the recent federal election, Australia has missed any immediate chance of having a nationally consistent approach to industrial manslaughter. Australian unions will be working hard wherever they can to get industrial manslaughter laws implemented. The short term will most likely see pressure on state governments to amend their legislation. In the long term, a nationally consistent approach will be worked towards.

References
Australian government. 2018. They never came home – the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia, Commonwealth of Australia, Canberra, aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/IndustrialdeathsinAus/Report (Accessed May 2019).
Boland, M. 2019. Review of the model work health and safety laws: Final report, Safe Work Australia, Canberra, www. safeworkaustralia.gov.au/doc/review-model-whs-laws-finalreport (Accessed May 2019).
Safe Work Australia. 2019. Fatality statistics, Commonwealth of Australia, Canberra safeworkaustralia. gov.au/statistics-and-research/statistics/fatalities/fatalitystatistics (Accessed May 2019).
uComms. 2019. Survey of 2,124 Australian residents conducted 21 February 2019, Reachtel, Melbourne (unpublished survey for ACTU).

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