Executive summary
Updates and background for this project (Digest)
In 2005 the NSW Parliament amended the State’s occupational health and safety (“OHS”) legislation to create a new “workplace deaths” offence. A corporation, or the director or manager of a corporation, is guilty of this offence where (1) their conduct causes the death of another person (the “victim”) at work; (2) when engaging in that conduct, they owe a duty under OHS legislation with respect to the health and safety of the victim; and, (3) they are reckless as to the danger of death or serious injury to the victim arising from the conduct in question.
When creating the workplace deaths offence, Parliament required the NSW Law Reform Commission to begin a review of its operation within three years of its enactment. This report responds to that requirement. However, it does so in very different circumstances to those that existed in 2005. In particular, a national review of OHS laws has recently recommended a model national OHS law to the Commonwealth government, and NSW has committed itself to national reform in this area of law. The model law does not contain a proposal for a specific workplace deaths offence. It does, however, provide for the graduated enforcement of duties under OHS law, exposing corporations or their officers to the severest penalties where their non-compliance with the duty in question involves high culpability (such as recklessness) and where there is a serious risk of harm (such as death). This approach effectively removes the need for a separate workplace deaths offence in OHS law.
By providing for the graduated enforcement of duties under OHS law, the advocated approach accords with the general basis for the imposition of criminal responsibility in OHS legislation, namely, that non-compliance with duties with respect to health and safety generate absolute liability offences (rather than offences based on recklessness or other fault), and that the conduct of the corporation or its officers must contribute to the risk in question (rather than cause the victim’s death). This approach is considered the most effective in achieving deterrence and promoting safety in the workplace.
At this time, it is makes no sense to examine the effectiveness of the workplace deaths offence enacted in 2005 in the way envisaged by Parliament, that is through full consultation with unions, employees, employers or other stakeholders and by conducting public hearings. The national review has recently consulted relevant stakeholders, although its focus was not specifically on a workplace deaths offence. There is, however, a lack of empirical evidence to make such a focus worthwhile. In particular, there have been no prosecutions under the new offence and no survey of industry, or workers compensation insurers, on which to base any practical conclusion as to whether the current law works, or has any deterrent effect.
In the event that a national OHS law is not enacted, the Commission considers that it should receive a new reference to review the current workplace deaths offence, taking into account the difficulties with the existing offence that are identified in this report, including that of attributing criminal responsibility to corporations.
Whether the national OHS law is enacted or not, any further review of workplace deaths should also consider if, and in what circumstances, corporations and their officers should incur responsibility for workplace deaths under the general criminal law of manslaughter, generally referred to in this context as “industrial manslaughter”. Such responsibility could be alternative or additional to any criminal responsibility in respect of the same offence under OHS laws.
