4. Part 2A of the OHS Act

Updates and background for this project (Digest)

• The aims and objectives of part 2A
• The offence
• Recklessness
• Application to corporations
• Application to directors and managers
• Causation
• Defences
• Penalties
• A summary offence
• Restrictions on the initiation of proceedings
• Victim impact statements
• Appeals

4.2 In the absence of empirical data concerning the operation of the workplace deaths provisions in s 32A,¹ this chapter analyses the appropriateness of the provisions of Part 2A having regard to their internal consistency and clarity in the definition of the offence elements; the test used for establishing corporate criminal liability; the extent to which the offence encompasses all employers (corporate or otherwise), and to individuals such as directors and managers; external consistency between the offence and other offences of similar gravity in the law, particularly as measured by proportionality between culpability and penalty and consistency of procedural safeguards; and, the extent to which a regime is created that facilitates deterrence of workplace breaches, education about workplace safety, and cooperation between stakeholders in promoting workplace safety.

THE AIMS AND OBJECTIVES OF PART 2A

4.3 We have already drawn attention to some of the difficulties in responding to the terms of reference drawn up by Parliament in 2005.² There is another. Our terms of reference require us to determine the extent to which the 2005 amendments are appropriate to achieve their aims and objectives.³ Yet it is by no means clear what those aims and objectives are.

4.4 The general aims and objectives of the Occupational Health and Safety Act 2000 (NSW) are listed in s 3 and largely centre on securing and promoting the health, safety and welfare of people at work⁴ through ensuring risks at work are identified, assessed and eliminated or controlled,⁵ and through developing community awareness of workplace safety issues.⁶

4.5 The specific intended aims of the amendments were examined in Chapter 3, which demonstrates that the 2005 amendments had a difficult political history. The general concerns prompting the amendments were that there was insufficient responsibility placed on employers and corporations in the case of fatal incidents; a failure to prosecute breaches; and insufficient penalties being imposed resulting in poor general deterrence. This had led to various recommendations, including a proposal for an absolute liability workplace deaths offence. This formed the basis for a Bill in 2004. However, by the time of the Second Reading Speech for the 2005 Bill, the offence had a recklessness element, its purpose having been narrowed to punish merely “a very small minority”, “rogues” in the workplace who are “most culpable” for deaths, without placing undue burden on “the vast majority of employers”.⁷ The extent to which the 2005 are intended to provide a general response to workplace deaths in cases where recklessness can be proved is, therefore, debatable.

4.6 If Part 2A is to be retained in OHS legislation, its aims and objectives should, in our view, be clearly articulated.

THE OFFENCE

4.7 Section 32A (2) of Part 2A of the Occupational Health and Safety Act 2000 (NSW) provides:

A person:

(a) whose conduct causes the death of another person at any place of work, and

(b) who owes a duty under Part 2 with respect to the health or safety of that person when engaging in that conduct, and

(c) who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct,

is guilty of an offence.

4.8 A person can only be prosecuted under s 32A if they first owe a duty to the victim⁹ under Part 2 of the Occupational Health and Safety Act 2000 (NSW).¹⁰ There are a wide range of parties who must ensure health, safety and welfare at work. These parties include employers;¹¹ self-employed persons;¹² controllers of work premises, plant or substances;¹³ and designers, manufacturers and suppliers of plant and substances for use at work.¹⁴ Employees themselves also have duties, including the duty to take reasonable care that their actions do not harm the health and safety of other employees, and the duty to co-operate with their employers’ health and safety compliance efforts.¹⁵

4.9 The conduct causing death can be an act or omission.¹⁶ The conduct causes death where it “substantially contributes” to the death.¹⁷ There has been no case law to define the meaning of the term “substantially contributes”. The location of a person’s death is irrelevant provided the death results from an injury sustained at a place of work.¹⁸ However, the conduct causing death need not occur at a place of work. The Second Reading Speech states:

The death of a person under the new offence is taken to have been caused at a place of work even if the person is injured at work but dies elsewhere, such as a hospital. It also does not matter where the culpable conduct that led to the death at work took place. An employer can therefore be held accountable for conduct or decisions taking place at corporate headquarters although the fatal injury to the worker took place at the worksite.¹⁹

The meaning of recklessness

4.10 A person is only guilty of the offence created by s 32A if the person was reckless as to the danger of death or serious injury to the victim.²⁰ The term “reckless” is not defined in the Act.²¹

4.11 Very generally, “recklessness” involves foresight of, or advertence to, the consequences of an act as either probable or possible and a willingness to take the risk of the occurrence of those consequences. Its application in criminal law can be controversial in a number of respects, at least two of which are relevant, and remain unresolved in their application, to the s 32A offence. The first is whether the awareness of the consequences must be that of the accused or of a reasonable person. The second is whether the awareness of the degree of risk is that of a probability or only a possibility, probability indicating a higher likelihood than possibility.²²

4.12 As to the first, the Second Reading Speech to the Occupational Health and Safety Amendment (Workplace Deaths) Bill 2005 in the New South Wales Legislative Council, states the following:

‘Recklessness’ has been defined as ‘heedless or careless conduct where the person can foresee some probable or possible harmful consequence but nevertheless decides to continue with those actions with an indifference to, or disregard of, the consequences’.²³

4.14 On the other hand, the fault elements for manslaughter by criminal negligence or manslaughter by unlawful and dangerous act are based on objective tests. The Court of Criminal Appeal has recently said that “[m]anslaughter by criminal negligence is committed where an accused causes the death of a person by an act or omission which so far falls short of the standard of care required by a reasonable person, that it goes beyond a matter of civil wrong and amounts to a crime”.²⁸ And, manslaughter by unlawful and dangerous act requires that the person breach the criminal law in circumstances where a reasonable person would have realised that they were exposing someone to an “appreciable risk of serious injury”.²⁹

4.15 As to the second factor, the Second Reading Speech requires foresight of “some probable or possible harmful consequence”. If the offence is analogous to manslaughter by criminal negligence, it would require proof that a reasonable person would have foreseen a high risk of serious injury.³⁰

Is recklessness too high a threshold?

4.16 Section 32A departs from the general pattern of offences in occupational health and safety legislation by imposing liability for workplace deaths only where recklessness is established. This has the obvious effect of making it more difficult to establish liability in such cases. Thus, the expert panel gathered by WorkCover took issue with the need to prove recklessness and negligence in the ACT industrial manslaughter offence.³¹ These were considered “excessively onerous” and too high a threshold to establish:

The requirements for a conviction are, compared to the current offences under the 2000 Act, excessively onerous such that we suspect that few, if any, convictions would be obtained under such provisions. This would in turn mean that they would be unlikely to have any real deterrent effect. We are not in favour of the creation of a statutory provision which is unlikely to be utilised to any significant degree and is really only tokenistic in nature.³²

The Commission’s view

4.18 In our view, if recklessness is to be retained as an element of a workplace deaths offence, its meaning should be clarified. However, there is a real question whether recklessness should be retained as an element of the offence. A basal inquiry needs to focus on what fault requirement would best serve the articulated objectives of a workplace deaths offence. In this respect, careful consideration should be given to the approach of the National Review, which has already been discussed.³⁵ In particular, consideration should be given to whether the offence should be one of absolute liability, but with an enforcement regime that takes account of the culpability of the offender in determining the seriousness of the offence and hence the penalty that ought, in the circumstances, to be imposed.

APPLICATION TO CORPORATIONS

4.19 A corporation can only act through its employees. To establish the criminal liability of a corporation, the identification doctrine requires that a mental element be shown in senior employees who are the corporation’s directing mind and will.³⁶ This is then attributed to the corporation to establish corporate liability. However, the board of directors and senior managers, the “directing mind and will” of corporations,³⁷ rarely make operational decisions about workplace health and safety. Large corporations often have diffused command structures,³⁸ so there is no clear stratum of employees with power over workplace safety.

4.20 The workplace deaths offence in s 32A of the Occupational Health and Safety Act 2000 (NSW) does not make corporate liability easy to establish. The offence contains a mental element of recklessness but does not specify how a corporation can possess a mental state. The identification doctrine is the only method of determining corporate criminal liability. In contrast, an offence of absolute liability does not require proof of a mental element so the deficiencies of the identification doctrine, used to attribute liability to corporations, are bypassed.³⁹

4.21 Commentators have argued that if an offence with a fault element is retained, there must be attendant provisions dealing with corporate criminal liability.⁴⁰ The National Review into Model Occupational Health and Safety Laws has now recommended that model occupational health and safety legislation should provide for “the imputation to a corporation of the conduct and state of mind of officers, employees and agents of the corporation acting within the scope of their actual or apparent authority”. A defence available to the corporation would be that it had taken all reasonable and practicable measures to prevent the occurrence of the offence.⁴¹

4.22 Clearly, if recklessness is to be retained as an element of the offence, consideration should be given to whether Part 2A should contain provisions explaining when liability for a workplace deaths offence will attach to a corporation, and, if so, what those provisions should be. As we explain in Chapter 5, we see merit in the approach to corporate criminal liability in the Commonwealth Criminal Code.⁴² At the same time, we acknowledge that the incorporation of the Code’s provisions would seem out of place in OHS legislation.

APPLICATION TO DIRECTORS AND MANAGERS

4.23 Where a corporation owes a duty under Part 2 of the Occupational Health and Safety Act 2000 (NSW), any director or other person concerned in the management of the corporation is also deemed to owe the duty for the purposes of s 32A(2).⁴³ This overcomes the difficulty in manslaughter by criminal negligence prosecutions of proving that the individual manager or director owed a personal, rather than corporate, duty of care to the victim.⁴⁴

4.24 The expression “person concerned in the management of the corporation” has been subject to interpretation in other sections of OHS legislation.⁴⁵ In Powercoal v Industrial Relations Commission of NSW,⁴⁶ Chief Justice Spigelman was of the view that the term should not have a narrow or technical meaning and should not be read down to apply only to central management.⁴⁷ However, it would appear that some form of managerial or decision-making role is required. In Newcastle Wallsend Coal Company Pty Limited v Inspector McMartin,⁴⁸ which applied the Powercoal formulation, a distinction was drawn between the role and functions of the General and Statutory Mine Manager on the one hand, and a mine surveyor on the other. The former was considered a “person concerned in management” as he attended meetings where safety policy was formulated, implemented this policy, and authorised personnel appointments.⁴⁹ The latter was not considered a manager as he was a casual employee whose actions were subject to others, and who had no involvement in board meetings or company policy. Although the mine surveyor’s work was critical to the safety of the mining work, this did not elevate the employee into a managerial position.⁵⁰

4.25 Although directors and managers may possess a deemed duty to ensure the safety of a worker under s 32A(5), they will only be individually liable for a workplace death if they personally engaged in reckless conduct, which substantially contributed to the death.⁵¹ We point out below that the requirement that the conduct of the director or manager must cause the death in question, is likely to place significant limits on the liability of directors or managers.⁵² The justification for such limitation is no doubt found in the potentially severe penalties likely to follow on a conviction for a workplace death. However, we see merit in the general provision in current OHS law that where a corporation has contravened a provision of the Act or regulations, a corporation’s manager or director is deemed to have contravened the same provision unless they can satisfy a court that they were not in a position to influence the corporation in relation to the contravention or, if they were in such a position, used all due diligence to prevent the contravention.⁵³ This general provision is, in our view, much more consistent with the approach of the National Review, with which we agree, of imposing a positive duty on officers of the corporation to exercise due diligence to ensure compliance with the duties of care that the corporation has under OHS legislation.⁵⁴

CAUSATION

4.26 Section 32A(2)(a) requires that the defendant’s conduct “causes the death of another person at any place of work”. The person’s conduct causes death if it substantially contributes to the death.⁵⁵ This is similar to the causation formulation under the common law of murder and manslaughter.⁵⁶ All other offences in the Occupational Health and Safety Act 2000 (NSW) require causation to be proved between the conduct and the creation of a risk.⁵⁷

4.27 Because directors and managers of large corporations are often separated from the day-to-day operations of a business, it will usually be difficult to attribute causation for a workplace death to a policy maker or a person in a position of control whose omissions or negligent practices (such as a failure to change a corporate culture of lax safety measures) are hidden within the corporation’s complex organisational roles and structures.⁵⁸ It is more likely that the most directly reckless person was not a senior officer. One commentator provides the example of the UK Southall train crash, where the primary cause of the crash and fatalities were a driver’s negligence but senior managers had failed to ensure properly functioning automatic warning and protections systems were installed in the train.⁵⁹

4.28 Moreover, there is a tendency in workplace safety regulation to focus on accidents and “events” rather than investigating background circumstances. A study of occupational health and safety prosecutions in Victoria found that prosecutions were event focused, 87% of the matters were in response to actual accidents rather than the general creation of risks, and the defence focused on details in order to portray events as atypical rather than contextualising accidents within histories of systematic culpability.⁶⁰ This serves further to limit the causal link to individual workers at the scene of an accident rather than directors or managers.

4.29 Part 2A thus provides no firm incentive for corporate officers to take a proactive approach to ensuring both their own and their corporation’s compliance with occupational health and safety duties. Because there are no legislative prescriptions or guidelines for managerial practices accompanying s 32A, there is no impetus for managers to create an “integrated system approach in managing hazards or risks”.⁶¹ Rather, managers in corporate headquarters have incentives to distance themselves from the dangers facing workers.

4.30 The National Review into model occupational health and safety laws has recommended that a proactive duty should be placed on officers, requiring them to exercise due diligence in their position of responsibility.⁶² Where a company commits an offence, controlling officers are liable if they fail to do all that is reasonably necessary. In this instance, the officer is liable both for their own conduct and also the actions and policy of the corporation. We agree with this approach.

DEFENCES

4.31 Under s 32A(3), it is a specific defence if the defendant proves there was a reasonable excuse for the conduct that caused the death. The general defences set out in s 28 of the Occupational Health and Safety Act 2000 (NSW), which apply to any charge under the Act, are also available to those defending a workplace deaths charge. A person may prove that it was not reasonably practicable for the person to comply with the provision,⁶³ or the offence occurred due to causes over which the person had no control and it would have been impracticable for the person to prevent the cause happening.⁶⁴ While the “reasonable excuse” defence does appear in other OHS legislation,⁶⁵ it is questionable whether, in the context of s 32A, it ought to operate as an additional defence to those identified in s 28 of the Act.

PENALTIES

4.32 Since the offence in Part 2A requires proof of a greater degree of culpability than other offences under OHS legislation, it is accompanied by a “significantly higher” penalty regime.⁶⁶ Section 32A(2) provides that the maximum penalty for a corporation guilty of a workplace death offence is 15,000 penalty units (currently $1,650,000).⁶⁷ The maximum penalty for an individual is a five-year term of imprisonment or 1,500 penalty units (currently $165,000). These penalties are at least double those prescribed for offences involving contraventions of the general duties under Part 2 Div 1 of the Occupational Health and Safety Act 2000 (NSW). At the same time, the penalties under s 32A are considerably lower for individuals than under the criminal offence of manslaughter. Section 24 of the Crimes Act 1900 (NSW) establishes a maximum penalty of 25 years imprisonment for the crime of manslaughter.

4.33 If the workplace deaths provision in Part 2A were to be redrawn as an absolute liability offence, the question would arise as to whether or not imprisonment was an appropriate response to the sentencing of an offender guilty of the offence. Currently, s 12(c) of the Occupational Health and Safety Act 2000 (NSW) provides for imprisonment (up to a maximum of 2 years) only where an individual is guilty of an offence under Part 2 Division 1 of the legislation and is a previous offender. Submissions from State governments, the Australian Council of Trade Unions, and the Australian Industry Group to the National Review all support custodial sentences for the most serious occupational health and safety breaches, such as those involving reckless conduct.⁶⁸ Others have questioned the fairness and justice of a regulatory system that imposes custodial sentences in an absolute liability context.⁶⁹ The Australian Industry Group stated that employers could be deprived of rights they would have possessed under conventional criminal law prosecutions. There was a lack of confidence in the impartiality of WorkCover investigations and prosecutions, and in the soundness of relegating occupational health and safety matters to be heard by a specialist tribunal.⁷⁰

4.34 The National Review itself favoured the imposition of sentences of imprisonment (to a maximum of 5 years) for breaches of duties of care under OHS legislation where there is a high level of culpability in the offender.⁷¹ We support the approach of the National Review in linking penalties imposed for non-compliance with duties under OHS legislation to the culpability of the offender and the level of risk. Where appropriate, such penalty should include imprisonment.

A SUMMARY OFFENCE

4.35 Proceedings for an offence under Part 2A may only be dealt with summarily before the Industrial Relations Commission in Court Session, now known as the Industrial Court.⁷² There are some benefits to this approach. Summary proceedings are usually faster and more efficient, and matters are heard before those experienced and expert in occupational health and safety.⁷³

4.36 On the other hand, the National Review into OHS Laws has recommended that prosecutions for the most serious breaches of duties of care under OHS laws should be brought on indictment, with provision for indictable offences to be tried summarily where the Court decided that it is appropriate and the defendant agrees.⁷⁴ The deterrent value of workplace death offences would arguably be strengthened by making them indictable, “demonstrating that they are on a par with the most serious breaches of the general criminal law”.⁷⁵ While this would exclude the jurisdiction of the Industrial Court with its special expertise in occupational health and safety matters, it potentially carries the advantage of exposing proceedings to juries who would, for example, be able to inject community values into the determination of what is “reasonable excuse” for a person’s conduct under s 32A(3). Moreover, as the Law Society of NSW has pointed out, the Industrial Relations Commission has rarely exercised powers of imprisonment.⁷⁶

4.37 It should be noted that making proceedings indictable would not preclude WorkCover, with its specialised expertise in workplace criminal law, from prosecuting occupational health and safety offences.

RESTRICTIONS ON THE INITIATION OF PROCEEDINGS

4.38 Proceedings under s 32A may only be instituted with the written consent of a Minister of the Crown or by an inspector.⁷⁷ “Inspector” means a WorkCover Inspector or, in the case of mines, a Mines Inspector in the Department of Primary Industries.⁷⁸ However, any person who would otherwise be entitled to institute proceedings may make a written application to WorkCover for a statement of the reasons why proceedings have not been instituted.⁷⁹ This provision applies to unions who are authorised to prosecute other offences against the Occupational Health and Safety Act 2000 (NSW) under s 106(1)(d).

4.39 In our view, if a workplace deaths offence were to be retained in OHS legislation in New South Wales, a person who is not satisfied with the reasons given by WorkCover for a failure to institute proceedings should at least be able to have those reasons reviewed by the DPP.⁸⁰

VICTIM IMPACT STATEMENTS

4.40 Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) contains provisions on victim impact statements. These are voluntary⁸¹ written statements⁸² from either the victim, or in case of a fatality, family members of the victim, that are received and considered by certain courts⁸³ after the conviction of an offender, but before sentencing. The statements describe how the crime for which the offender has been convicted has impacted upon the victims with regard to physical or psychological health, coping skills, relationships, and financial situation. Its purpose is to involve the victim in the criminal justice system and if the convicted person disagrees with the contents of the statement, the victim or victim’s representative may be cross-examined by the defence.

4.41 Section 27(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) currently limits the use of victim impact statements in the Industrial Relations Commission to Division 1 of Part 2 of the Occupational Health and Safety Act 2000 (NSW) where there is a death or actual physical harm caused. Victim impact statements are not currently permitted for s 32A prosecutions.

4.42 Even where victim impact statements are receivable by courts in death cases, a court must not consider a victim impact statement, given by a family victim in a case where the victim has died, in connection with the determination of the punishment for the offence unless it considers it is appropriate to do so.⁸⁴ Trial judges who, at sentencing, “bear in mind” the victim impact statements made by friends and family of the deceased and who have regard to the particular effects of the death of the deceased upon the members of his family, at least run the risk of taking irrelevant material into account in sentencing.⁸⁵

4.43 WorkCover’s review of the Occupational Health and Safety Act 2000 (NSW) in May 2006⁸⁶ and a further review by Justice Paul Stein in April 2007⁸⁷ proposed that Victim Impact Statements be available in matters involving a breach of s 32A of the Occupational Health and Safety Act 2000 (NSW). Both reviews considered it an omission that this had not been previously included.⁸⁸ Notwithstanding the limitations on the use of victim impact statements in death cases, we agree with these earlier reviews.

APPEALS

4.44 The Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW) inserted s 5AG of the Criminal Appeal Act 1912 (NSW) providing for appeals to the Court of Criminal Appeal. The appeals are available where a person has been convicted of an offence under s 32A of the Occupational Health and Safety Act 2000 (NSW) and sentenced to any term of imprisonment by the Industrial Court of NSW. The person may appeal their conviction or their sentence.⁸⁹ However, they may only do so if they have first exercised any right they have to appeal to the Full Bench of the Industrial Court of NSW under the Industrial Relations Act 1996 (NSW).⁹⁰

4.45 Section 197A of the Industrial Relations Act 1996 (NSW), which provides for an appeal against acquittal in proceedings for an offence against occupational health and safety legislation, does not apply to an offence under Part 2A of the Occupational Health and Safety Act 2000 (NSW).⁹¹ In our view, this provision should be retained. We agree with the National Review that there should not be an appeal against acquittal in proceedings for any offence against OHS legislation.⁹²

1. See para 1.6.

2. See para 1.4-1.5.

3. See para 1.3 (item (a)).

4. Occupational Health and Safety Act 2000 (NSW) s 3(a).

5. Occupational Health and Safety Act 2000 (NSW) s 3(e).

6. Occupational Health and Safety Act 2000 (NSW) s 3(f).

7. See para 3.12.

8. Interpretation Act 1987 (NSW) s 21.

9. Generally an employee (Occupational Health and Safety Act 2000 (NSW) s 8(1)), but including other people who are “exposed to risks to their health of safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work” (Occupational Health and Safety Act 2000 (NSW) s 8(2)).

10. See para 2.3.

11. Occupational Health and Safety Act 2000 (NSW) s 8.

12. Occupational Health and Safety Act 2000 (NSW) s 9.

13. Occupational Health and Safety Act 2000 (NSW) s 10.

14. Occupational Health and Safety Act 2000 (NSW) s 11.

15. Occupational Health and Safety Act 2000 (NSW) s 20.

16. Occupational Health and Safety Act 2000 (NSW) s 32A(1).

17. Occupational Health and Safety Act 2000 (NSW) s 32A(4)(a).

18. Occupational Health and Safety Act 2000 (NSW) s 32A(4)(b).

19. Parliament of New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 May 2005, 16340 (Hon Kerry Hickey, Minister for Mineral Resources).

20. Occupational Health and Safety Act 2000 (NSW) s 32A(2)(c).

21. Crimes Act 1900 (NSW) s 4A distinguishes “recklessness”, “intention” and “knowledge”, providing that where recklessness is an element of an offence under the Crimes Act, that element can also be proved by proof of intention or knowledge.

22. Boughey v The Queen (1986) 161 CLR 10; R v Solomon [1980] 1 NSWLR 321; R v Crabbe (1985) 156 CLR 464, 469.

23. Parliament of 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).

24. Interpretation Act 1987 (NSW) s 34(2)(f).

25. Crimes Act 1900 (NSW) s 18(1)(a)

26. Parker v The Queen (1963) 111 CLR 610, 632; Pemble v The Queen (1971) 124 CLR 107.

27. R v Crabbe (1985) 156 CLR 464, 469-70; R v Solomon [1980] 1 NSWLR 321.

28. R v Cittandi [2008] NSWCCA 256, [4], citing Nydam v R [1977] VR 430. See also R v Lavender (2005) 222 CLR 67, [60].

29. Wilson v The Queen (1992) 174 CLR 313, 340.

30. See, eg, R v Lavender (2005) 222 CLR 67.

31. See Appendix para A.11-A.17.

32. 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), [48].

33. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.78] (evidence of Garry Brack).

34. M Goodsell, “Submission to Hon John Della Bosca MLC re: Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004” (2 February 2005) Australian Industry Group «http://www.aigroup.com.au/ portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Policy%2520and%2520Representation/Submissions/OHS/2005/ltr_minister_2_2_05_final.pdf».

35. See para 1.12.

36. Tesco Supermarkets Ltd v Nattrass [1972] AC 153. See para 2.12.

37. Tesco Supermarkets Ltd v Nattrass [1972] AC 153; R v A C Hatrick Chemicals Pty Ltd (Unreported, Supreme Court of Victoria, Hampel J, 29 November 1995); Hamilton v Whitehead (1988)166 CLR 121.

38. See para 2.13-2.16.

39. See para 2.3.

40. 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), [49].

41. R Stewart-Crompton, S Mayman and B Sherriff, National Review into Model Occupational Health and Safety Laws: Second Report to the Workplace Relations Ministers’ Council (January 2009), Recommendation 232 (“National Review”).

42. See para 5.7.

43. Occupational Health and Safety Act 2000 (NSW) s 32A(5).

44. N Foster, “Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing From Company Workplace Safety Breach” (2006) 9 Flinders Journal of Law Reform 79, 109.

45 See Occupational Health and Safety Act 2000 (NSW) s 26., previously Occupational Health and Safety Act 2000 (NSW) s 50.

46. Powercoal v Industrial Relations Commission of NSW (2005) 145 IR 327 (“Powercoal”).

47. Powercoal (2005) 145 IR 327, [116].

48. Newcastle Wallsend Coal Company Pty Limited v Inspector McMartin (2006) 159 IR 121 (“Newcastle Wallsend”).

49. Newcastle Wallsend (2006) 159 IR 121, [482]-[486].

50. Newcastle Wallsend (2006) 159 IR 121, [514]-[516].

51. Occupational Health and Safety Act 2000 (NSW) s 32A(6).

52. See para 4.26-4.30.

53. Occupational Health and Safety Act 2000 (NSW) s 26, whose application is specifically excluded in respect of the s 32A offence: see s 32A(6).

54. See para 1.14.

55. Occupational Health and Safety Act 2000 (NSW) s 32A(4)(a).

56. Royall v The Queen (1991) 172 CLR 378; R v Hallett [1969] SASR 141; R v Smith [1959] 2 QB 35.

57. See para 2.5.

58. N Foster, “Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing From Company Workplace Safety Breach” (2006) 9 Flinders Journal of Law Reform 79, 90-91. See also the description of management failures in the Esso Longford Gas explosion: K Wheelwright, “Corporate Liability For Workplace Deaths And Injuries – Reflecting On Victoria’s Laws In The Light Of The Esso Longford Explosion” (2002) 7 Deakin Law Review 321.

59. J Gobert, “The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen Years in the Making But Was It Worth the Wait?” (2008) 71 Modern Law Review 413, 418.

60. A Hall and R Johnston, “Exploring the Re-criminalising of OHS Breaches in the Context of Industrial Death” (2005) 8 Flinders Journal of Law Reform 57, 70-71.

61. 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), [165].

62. National Review, [8.31], Recommendation 40.

63. Occupational Health and Safety Act 2000 (NSW) s 28(a).

64. Occupational Health and Safety Act 2000 (NSW) s 28(b).

65. See Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(2). And see Appendix, para A.6.

66. Parliament of New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 May 2005, 16340 (Hon Kerry Hickey, Minister for Mineral Resources).

67. The Crimes (Sentencing Procedure) Act 1999 (NSW) s 17 currently provides that the value of a penalty unit is $110.

68. National Review, [12.2]-[12.5].

69. Parliament of New South Wales, General Purpose Standing Committee No. 1, Serious Injury and Death in the Workplace (2004), [12.73] (The Law Society of NSW).

70. M Goodsell, “Submission to Hon John Della Bosca MLC re: Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004” (2 February 2005) Australian Industry Group «http://www.aigroup.com.au/portal/binary/ com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Policy%2520and%2520Representation/Submissions/OHS/2005/ltr_minister_2_2_05_final.pdf».

71. National Review, [12.26], Recommendation 59.

72. Occupational Health and Safety Act 2000 (NSW) s 32B(1); Industrial Relations Act 1996 (NSW) s 151A.

73. See National Review, [11.3]-[11.6]; 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), [47], [127].

74. National Review, Recommendations 53, 54.

75. National Review, [11.4]. See also Recommendation 53.

76. See Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004) [12.73] (The Law Society of NSW).

77. Occupational Health and Safety Act 2000 (NSW) s 32B(2). Section 4 of the Occupational Health and Safety Act 2000 (NSW) defines “inspector as “an inspector appointed under Division 1 of Part 5”.

78. Occupational Health and Safety Act 2000 (NSW) ss 47, 47A.

79. Occupational Health and Safety Act 2000 (NSW) s 32B(3).

80. Compare R Stewart-Crompton, S Mayman and B Sherriff, National Review into Model Occupational Health and Safety Laws: Second Report to the Workplace Relations Ministers’ Council (January 2009), Recommendation 224.

81. Crimes (Sentencing Procedure) Act 1999 (NSW) s 29.

82. Crimes (Sentencing Procedure) Act 1999 (NSW) s 30.

83. Crimes (Sentencing Procedure) Act 1999 (NSW) s 27.

84. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(4)(b).

85. See Bollen v The Queen (1998) 99 A Crim R 510, though the status of the decision may be in question: see R v Tzanis [2005] NSWCCA 274, [14]-[16].

86. WorkCover NSW, Report on the Review of the Occupational Health and Safety Act 2000 (May 2006).

87. P Stein, Inquiry Report (WorkCover NSW, April 2007).

88. WorkCover NSW, Report on the Review of the Occupational Health and Safety Act 2000 (May 2006) 61; P Stein, Inquiry Report, [13.44].

89. Criminal Appeal Act 1912 (NSW) s 5AG(1).

90. Criminal Appeal Act 1912 (NSW) s 5AG(2).

91. Occupational Health and Safety Act 2000 (NSW) s 32B(4).

92. National Review, Recommendation 64.