3. The development of a workplace deaths offence
Updates and background for this project (Digest)
3.1 This Chapter provides a brief overview of the background to the enactment of Part 2A of the Occupational Health and Safety Act 2000 (NSW).
NSW LEGISLATIVE COUNCIL STANDING COMMITTEE
3.2 On 19 November 2003, the New South Wales Legislative Council referred the issue of serious injury and death in the workplace to the General Purpose Standing Committee No 1 (the “Standing Committee”) for inquiry.1 The referral was made following concerns about the rate of workplace injury and death in New South Wales, particularly in the building and construction industry. The principal issue before the Standing Committee during the inquiry was that of criminal responsibility for workplace deaths. 2
3.3 Many submissions expressed concern that prosecutions under the Occupational Health and Safety Act 2000 (NSW) were ineffective in deterring workplace deaths,3 particularly due to the low penalties being issued for contraventions of the Act.
3.4 The Standing Committee concluded that current manslaughter laws in NSW only captured small businesses, leaving large corporations immune. Corporate prosecutions were made difficult by corporate liability and the operation of the identification doctrine.4 Unsuccessful prosecutions of individuals were attributed to the high level of negligence and the standard of proof (beyond reasonable doubt), required for establishing manslaughter by criminal negligence.
3.5 The Standing Committee recommended that, “as a matter of urgency, discrete and specific offences of ‘corporate manslaughter’ and ‘gross negligence by a corporation causing serious injury’ be enacted in the Crimes Act 1900 (NSW)”.5
THE McCALLUM REPORT
3.6 On 29 January 2004, WorkCover New South Wales sought advice from a panel of experts consisting of Professor Ron McCallum, Mr Peter Hall QC, Mr Adam Hatcher and Mr Adam Searle (“McCallum Report”).6 The panel concluded that measures proactively to identify and eliminate risks are crucial. Despite Parliament increasing maximum penalties multiple times, the evidence showed “actual penalties as a proportion of maximum penalties have tended to decrease”7 and “in the overwhelming majority of cases, the penalty imposed has been in the area of 10-20% of the maximum”. The panel recommended that this failure of general deterrence in sentencing warranted the creation of a separate offence with higher penalties for occupational health and safety violations resulting in deaths.8 The regulatory burden of this additional offence would lead to greater vigilance in minimising workplace risks in general.9
THE 2004 BILL
3.7 In October 2004, the New South Wales Minister for Industrial Relations, the Hon John Della Bosca, released the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004 (NSW) (“2004 Bill”) for consultation. Modelled on the WorkCover Report, the Bill created a new offence, a breach of the Act causing death of a person. Existing monetary penalties were increased for workplace deaths and the Bill listed aggravating factors to assist courts in sentencing and assigning penalties. There was a possibility that the penalty of imprisonment be made available to courts.10
3.8 The draft 2004 Bill was criticised on a number of grounds including that it allowed unions to initiate prosecutions; the burden of proof was reversed with no presumption of innocence; and rights of appeal within the criminal justice system were restricted.11
3.9 The 2004 Bill was subsequently withdrawn.
COMMUNITY CONSULTATION
3.10 In an extensive six-month consultation process following the 2004 Bill, business groups argued the reforms would reduce the economic growth of local business and foreign investment. Some also perceived that absolute liability general duties with limited defences unfairly punished employers whose culpability might be minimal.12
3.11 However, the union movement,13 along with many major stakeholder organisations including Australian Business Limited, the Australian Industry Group, and the NSW State Chamber of Commerce, supported the introduction of a new workplace deaths offence.14
THE NEW LAW IS ENACTED
3.12 The Government released a revised Bill in May 2005, the Occupational Health and Safety (Workplace Deaths) Bill 2005 (NSW), which became law in June 2005. During the Second Reading Speech of the Bill in the New South Wales Legislative Council, the Minister for Industrial Relations, the Hon John Della Bosca, stated:
The revised bill is aimed at the very small minority of rogues whose indifference to health and safety in the workplace results in death. The bill represents the most effective means of targeting those who are most culpable and deserving of greater degrees of punishment.15
3.13 Along with the element of recklessness,16 the revised Bill also added the “reasonable excuse” defence to the general defences available to any offence under the Act.17 Unions were not permitted to initiate prosecutions.18
FOOTNOTES
1. The immediate catalyst was possibly the workplace death of a 16 year-old labourer in Western Sydney. This incident provoked renewed interest in legislating for an offence of industrial manslaughter. The New South Wales Government responded by asserting that it was committed to enacting new provisions covering industrial manslaughter, but only as part of the Occupational Health and Safety Act 2000 (NSW). The Communications, Electrical and Plumbing Union reportedly joined other unions demanding that the New South Wales Government speed the introduction of special industrial manslaughter legislation. See: “Prosecution Clash Over Teen’s Work Death”, Sydney Morning Herald, 15 October 2003; B Norington, “Union Calls for Tougher Laws After Teen’s Death”, Sydney Morning Herald, 16 October 2003; B Norington, “Anger Over Joel’s Last Day at Work” Sydney Morning Herald, 17 October 2008. WorkCover successfully prosecuted the employer company and its director, and the director of the roofing company engaged to undertake the work.
2. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), xiii.
3. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.1].
4. Parliament of New South Wales, General Purpose Standing Committee No 1 Serious Injury and Death in the Workplace (2004), [12.25]-[12.28].
5. Parliament of New South Wales, General Purpose Standing Committee No 1, Inquiry into Serious Injury and Death in the Workplace (2004), [12.79] (Recommendation 26).
6. R McCallum, P Hall, A Hatcher and A Searle, Advice in Relation to Workplace Death, Occupational Health and Safety Legislation & Other Matters: Report to WorkCover Authority of NSW (2004) (“McCallum Report”).
7. McCallum Report, [14].
8. McCallum Report, [20].
9. McCallum Report, [27].
10. K Haines, T John and M Park, Workplace Death and Serious Injury: A Snapshot of Legislative Developments in Australia and Overseas, Research Brief No 7 2004–05 (Parliament of Australia, Parliamentary Library, 2004).
11. See NSW Minerals Council, “Combined Employer Group Submission Concerning the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004” (12 November 2004). See also R Evans, Australian Institute of Company Directors, “AICD Concerned NSW Workplace Fatalities Bill 2004 Will Become Law” (Press Release, 29 April 2005).
12. See New South Wales, Legislative Council, Parliamentary Debates (Hansard), 5 May 2005, 15652 (Hon John Della Bosca, Special Minister of State, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-President of the Executive Council).
13. K Haines and T John, Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005, Bills Digest No 131 2004–05 (Parliament of Australia, Parliamentary Library, 2005).
14. WorkCover NSW, Report on the Review of the Occupational Health and Safety Act 2000 (May 2006).
15. New South Wales, Legislative Council, Parliamentary Debates (Hansard), 8 June 2005, 16539 (Hon John Della Bosca, Special Minister of State, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, Assistant Treasurer, and Vice-President of the Executive Council).
16. See para 4.10-4.18.
17. See para 4.31.
18. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 May 2005, 16340 (Hon Kerry Hickey, Minister for Mineral Resources).
