5. Prosecution under criminal law
Updates and background for this project (Digest)
5.1 This chapter addresses two questions:
- the role that the general criminal law ought to have in the regulation of workplace deaths; and
- the sentencing options that ought to be available to a court in response to a workplace deaths offence.
SHOULD WORKPLACE DEATHS BE PROSECUTED UNDER GENERAL CRIMINAL LAW?
5.2 Where a person is guilty of an offence under OHS legislation the person may also be guilty of an offence under the general criminal law. Thus, a person who is guilty of an offence under s 32A of the Occupational Health and Safety Act 2000 (NSW) may also be guilty of manslaughter under the general criminal law.1 In such a case, the person may be prosecuted either under the OHS legislation or under the criminal law.2 There have been few prosecutions for manslaughter in circumstances of workplace deaths in Australia.3 Convictions, however, are not uncommon overseas. Before the commencement of the Corporate Manslaughter and Corporate Homicide Act 2007 (UK) in April 2008, twenty-four incidents involving workplace deaths in England and Wales had resulted in the successful prosecution for manslaughter of seven companies, seventeen directors, and nine business owners who were sole traders or partners.4
The differing views
5.3 Opinions differ on whether workplace death offences should be dealt with under the general criminal law rather than under OHS legislation, and “there is no academic or social consensus that greater use of the criminal law … in the regulation of OHS is either necessary and/or worthwhile”.5 On the one hand, while stakeholders generally view the criminal status of OHS offences as crucial for ensuring that workplace safety is taken seriously,6 there is a common perception that placing corporate homicide within OHS legislation marginalises it by equating it to the mere infringement of regulatory legislation, such as the failure to fence dangerous machinery.7 On the other hand, even if the criminal law is recognised as a useful tool in the scheme of regulation to punish the most culpable offenders,8 if a workplace death is singled out for “special treatment” as a manslaughter prosecution, this risks undermining the criminality of regulatory OHS offences under OHS legislation.9
5.4 Workplace death offences are not, however, easily equated with other offences under OHS legislation. The Maxwell Report, which reviewed Victorian OHS laws, rejected locating a workplace deaths offence within OHS legislation because it was inconsistent with the nature of other OHS offences:
It follows from the nature of [OHS] offences that no question of manslaughter can arise under [OHS legislation]. Manslaughter is a concept known only to the criminal law, as are the offences of negligently or recklessly causing serious injury. … [T]here can be a punishable breach of an OHS duty whether or not that breach had any direct consequence in the form of injury or death. No question of causation arises. Instead, the fact that somebody is injured or dies is relevant only –
(a) as evidence of the existence of the risk to health and safety which the dutyholder (ex hypothesi) failed to take adequate measures to prevent; and
(b) in providing some indication (perhaps) of the “severity of the hazard or risk” and, therefore, as a pointer to what the dutyholder ought reasonably to have done.10
5.5 Thus, the offence under s 32A of the Occupational Health and Safety Act 2000 (NSW) is obviously not a typical OHS offence, especially as it requires proof of fault and the establishment of a causative link between the conduct relating to the OHS duty and the death in question.11 In short, such an offence arguably looks as if it belongs in the general criminal law.
Establishing corporate criminal liability
5.6 The effective prosecution of corporations for manslaughter under the criminal law assumes that corporate criminal liability can successfully be attributed to corporations. The common law identification doctrine is inadequate for this purpose. However, there are other models of corporate criminal liability.
5.7 Part 2.5 (Corporate Criminal Liability) of the Criminal Code (Cth) is the most prominent example.12 The provisions of this Part operate to extend the basis of corporate liability beyond the identification doctrine13 to include aggregation,14 corporate fault and vicarious liability.15 The provisions as a whole have been heavily cited by commentators in other jurisdictions as providing a “more holistic approach to corporate criminal liability”.16 The Commission has previously recommended that consideration should be given to the adoption of Part 2.5 into the criminal law of NSW. Part 2.5 would be particularly relevant to workplace deaths in so far as it allows proof of guilt to be founded on a corporate culture that directs, encourages or tolerates non-compliance with law.17 This is a useful way of encouraging corporations to be proactive in determining their practices and attitudes towards ensuring workplace safety.
5.8 Vicarious liability is another possible means of establishing the criminal liability of corporations. Vicarious liability has not generally been applied in criminal law in Australia,18 and its use in the United States has been criticised for unfairly importing a civil law mechanism into the criminal law with the result that:
holding a corporation liable for the unlawful acts of a subordinate employee in violation of company policy in effect imposes vicarious liability twice removed upon the corporate entity and stretches the concept of mens rea beyond an acceptable limit.19
5.9 Moreover, vicarious liability has not made prosecuting offences of specific intent any easier in the United States, although the courts have developed doctrines such as collective knowledge and wilful blindness to apply in corporate prosecutions.20
5.10 The Commonwealth Criminal Code utilises vicarious liability only to attribute the physical elements of an offence to a corporation.21 As we have already noted, the National Review proposes to use vicarious liability as the general basis of attributing liability to corporations in the context of offences in OHS laws.22
An industrial manslaughter offence
5.11 An alternative to prosecuting corporations for manslaughter in the case of workplace deaths is to develop a new offence of industrial manslaughter for incorporation in the Crimes Act 1900 (NSW). In 2004, the General Purpose Standing Committee of the NSW Legislative Council 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)”.23 A few years earlier, however, a South Australian government review of occupational health and safety had concluded that there was no need for an industrial manslaughter provision because it was already adequately covered by the criminal law.24 The Attorney General’s Department believed that creating another manslaughter offence in occupational health and safety legislation in addition to the Criminal Law Consolidation Act (SA) would result in inconsistency and duplication of the law.
5.12 An industrial manslaughter provision would have to give careful consideration to the basis of liability for workplace deaths, in particular how the element of fault is to be drawn (for example, is a defendant to be liable only where it has acted intentionally, recklessly or in a grossly negligent way). Unless liability were to be imposed on an absolute basis, the law would obviously have to address the issues of corporate criminal liability to which we have just referred.25 These issues are beyond our current terms of reference.
WHAT SENTENCING OPTIONS SHOULD BE AVAILABLE?
5.13 The debate about what sentencing options should be available in workplace death cases focuses on the sentencing of corporations. This is because, unlike an officer of the corporation, a corporation cannot be imprisoned. Generally, monetary penalties or fines are imposed on corporations by way of punishment.
5.14 Prioritising the sentencing principle of deterrence over retribution and denunciation enables better protection of health and safety at work.26 The Occupational Health and Safety (Workplace Deaths) Bill 2005 (NSW), which enacted the s 32A workplace deaths offence, was partly a response to the perceived lack of deterrence in the low level of penalties imposed on those responsible for industrial deaths.27 Sentencing requires that “in principle it should not be cheaper to offend than to prevent the commission of an offence”.28 But increasing maximum penalties does not result in a proportional increase in average penalties.29 There are several reasons for this failure: the maximum penalty is limited to the very few most serious offences; corporations cannot be fined commensurate to their wealth under general sentencing principles; and monetary fines are associated with phenomena of “overspill”, where the corporation itself does not directly bear the punitive burden but discharges the fine through laying off employees, by reducing dividends to shareholders or by other measures.30
5.15 Numerous government reports,31 the experience of comparative jurisdictions and legal theorists suggest the solution lies in making available a broader range of sentencing options in addition to fines. These should also be accompanied by sentencing guidelines. This is reflected in the Occupational Health and Safety Act 2000 (NSW) which, in pt 7 div 2, empowers a court to make orders for restoration;32 orders relating to the costs and expenses of investigation;33 publicity orders;34 and orders to undertake OHS projects.35 Additionally, the legislation makes provision for guideline judgments.36 The Crimes Act 1900 (ACT)37 provides examples of remedial orders and other measures in the more general criminal law context.38
5.16 In our Report 102, Sentencing: Corporate Offenders,39 we recommended that, in sentencing a corporation, a court, instead of imposing a fine, should generally be able to make one or more orders that it considers will best achieve the objectives of sentencing.40 These orders are:
- Orders for incapacitation – that is, orders aimed at preventing a corporation from carrying out certain commercial, trading or investment activities or taking advantage of certain rights (“disqualification”); and also orders aimed at winding up a corporation either directly or indirectly (“dissolution”).
- Correction orders – this category includes a range of orders, often referred to as “probation orders”, as well as another range of generally stricter orders that are referred to as “punitive injunctions”. Corporate probation orders aim to alter corporate behaviour, for example, by achieving some internal discipline in the corporation or reforming the organisation by means of external monitoring. Punitive injunctions involve a more severe form of intervention in the operation of the corporation. Such orders might involve specific internal controls, or require that particular activities cease or be undertaken.
- Community service orders – these orders may direct a corporation to undertake or contribute to work or projects that benefit the community or a part of the community in some way.
- Publicity orders – these are orders designed to inform specific people, groups of people or the community, of details relating to the offender, the offence and the penalty imposed for the offence.
5.17 In our view, if an industrial manslaughter defence is enacted in the Crimes Act 1900 (NSW), consideration should also be given to including, in the Crimes (Sentencing Procedure) Act 1999 (NSW) a range of sentencing options to be used in the case of corporate offenders. The detailed provisions relating to those options should accord with the recommendations made in our Report 102, Sentencing: Corporate Offenders.41
FOOTNOTES
1. See para 2.1.
2. See para 2.18, where we note our disagreement with the suggestion to the contrary of Judge English in R v Thurkell (Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5550, 6 November 2008), 6-7.
3. See para 2.17-2.18.
4. R Stewart-Crompton, B Sherriff and S Mayman, National Review into Model Occupational Health and Safety Laws: First Report to the Workplace Relations Ministers’ Council (October 2008) [11.16] (“National Review”) citing the Centre for Corporate Accountability, Statistics on Convictions in England and Wales, «http://www.corporateaccountability.org/manslaughter/cases/ convictions.htm». See also 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, 87-8.
5. 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, 59. See also the mixed opinions in submissions to Parliament of New South Wales, General Purpose Standing Committee No 1, Inquiry into Serious Injury and Death in the Workplace (2004), [12.1]-[12.79].
6. National Review, [10.5]-[10.7].
7. D Brown, D Farrier, S Egger, L McNamara and A Steel, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (4th ed, 2006) 494 citing G Slapper, “Corporate Manslaughter: An Examination of the Determinants of Prosecutorial Policy” (1993) 2 Social and Legal Studies 423, 432.
8. NSW Law Reform Commission, Sentencing: Corporate Offenders, Report 102 (2003) Ch 2, and literature there cited.
9. A Hall and R Johnston, “Exploring the Re-criminalising of OHS Breaches in the Context of Industrial Death”, 73-74. See also J Clough, “Will the Punishment Fit the Crime? Corporate Manslaughter and the Problem of Sanctions” (2005) 8 Flinders Journal of Law Reform 113, 116.
10. C Maxwell, Victorian Occupational Health and Safety Act Review (Department of Treasury and Finance, 2004) (“Maxwell Report”), 355-6.
11. See para 4.10-4.18, 4.26-4.30.
12. An extensive discussion of corporate liability and the Criminal Code (Cth) provisions can be found in NSWLRC, Report 102, Ch 2. See also para 2.11-2.16.
13. Criminal Code (Cth) ss 12.3(2)(a) and (b).
14. Criminal Code (Cth) s 12.4(2).
15. Criminal Code (Cth) s 12.2.
16. 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, 421.
17. Criminal Code (Cth) s 12.3(2)(c).
18. See R Grantham, “Attributing Responsibility to Corporate Entities: A Doctrinal Approach” (2001) 19 Company and Securities Law Journal 168, 171; N Foster, “Manslaughter by Managers: The Personal Liability of Company Officers for Death Flowing From Company Workplace Safety Breach”, 93. Even if vicarious liability concepts should be introduced in more broad criminal legislation, their applicability to occupational health and safety schemes is uncertain. Foster, at 93, cites an English case R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331, which refused “to apply vicarious liability analysis to legislation which itself distinguishes between the liability of employers and employees”.
19. S Vu, “Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent” (2004) 104 Columbia Law Review 459, 466 quoting S R Miller, “Corporate Criminal Liability: A Principle Extended to Its Limits,” (1979) 38 Federal Bar Journal 49, 67. See also Appendix, para A.45-A.48.
20. See further S Vu, “Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent”.
21. Criminal Code (Cth) s 12.2: “If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate”.
22. See para 4.21.
23. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.79] (Recommendation 26).
24. SafeWork SA, Review of Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia (2002), 111-12.
25. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.79].
26. See further NSWLRC, Report 102, Ch 2.
27. See Chapter 3, and para 4.5.
28. National Review, [12.9] (quoting the UK Sentencing Panel, “Consultation Paper on Sentencing for Corporate Manslaughter” (2007), 17 (available at http://www.sentencing-guidelines.gov.uk/docs).
29. 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), [14].
30. J Clough, “Will the Punishment Fit the Crime? Corporate Manslaughter and the Problem of Sanctions”, 121.
31. See Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004), [12.98]-[12.99] Recommendations 28 and 29; National Review, [12.10], Recommendation 61.
32. Occupational Health and Safety Act 2000 (NSW) s 113.
33. Occupational Health and Safety Act 2000 (NSW) s 114.
34. Occupational Health and Safety Act 2000 (NSW) s 115.
35. Occupational Health and Safety Act 2000 (NSW) s 116.
36. Occupational Health and Safety Act 2000 (NSW) pt 7 div 4.
37. Crimes Act 1900 (ACT) s 49E(2). Compare Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 10, and the discussion in para A.35.
38. See further J Clough, “Will the Punishment Fit the Crime? Corporate Manslaughter and the Problem of Sanctions”, 120-130.
39. NSWLRC Report 102.
40. NSWLRC Report 102, Recommendation 4.
41. NSWLRC Report 102, especially Chs 8-11, 13-14.
