Industrial Manslaughter in Queensland  

Queensland Mines Minister Anthony Lynham has announced the intention of the government to introduce new laws in response to the recent spate of Queensland mine deaths – 7 in the past year. An offence of industrial manslaughter will be introduced for the mining sector.

The offence of industrial manslaughter does presently exist in Queensland. However, these laws do not yet apply to the mining sector.

As an example, earlier this year ‘Multi-Run Roofing’ Director, Gary Lavin was found guilty of reckless conduct after a 62 year old roofer died at a worksite in 2014. He was sentenced to a period of 1 year imprisonments, suspended after 4 months and fined $1,000,000.00.

This was the first workplace health and safety trial in Queensland and it highlights the significance of the government’s industrial manslaughter legislation introduced by Work Health and Safety and Other Legislation Amendment Act 2017. It also demonstrates the significant penalties which can be imposed under the regime.

The proposed new laws indicate the critical importance that mine operators and responsible persons (including boards, managers, supervisors and contractors) obtain;

1. expert legal advice in order to fully understand the potential implications of their conduct and take appropriate proactive measures to implement; and
2. document all operational practices to comply with workplace safety standards to reduce the risks of injury and death.

Those at risk need to understand both the investigative powers of the state and their rights in this regard.

 

Industrial Manslaughter in Queensland

In October 2016 the Government announced a best practice review of work health and safety laws as a result of fatalities at Dreamworld and Eagle Farm. These fatalities highlighted the need to ensure the current workplace health and safety framework is responsive to emerging issues.

The Work Health and Safety and Other Legislation Amendment Act 2017 introduced new offences into the Workplace Health and Safety Act 2011. Under the Act there are two streams of the offence – the first being industrial manslaughter with respect to a person conducting business or an undertaking (section 34C) and the second being,  industrial manslaughter in respect of a senior officer (section 34D).

Realted Reading: Queensland first jury conviction for industrial manslaughter.

 

 1.  Person conducting a business or undertaking

Under section 34C of the Act this provision a person conducting a business or undertaking commits an offence if:-

1. a worker:-
   1. dies in the course of carrying out work for the business or undertaking; or
   2. is injured in the course of carrying out work for the business or undertaking and later dies; and
2. the person’s conduct causes the death of the worker; and
3. the person in negligence about causing the death of the worker by the conduct.

The maximum penalties for the provision for an individual is 20 years imprisonment or for a body corporate, a fine of 100,000 penalty units ($10,000,000.00).

 

2.  Senior officer

Section 34D provides that a senior officer of a person who carries out a business or undertaking commits an offence if:-

1. a worker:-
   1. dies in the course of carrying out work for the business or undertaking; or
   2. is injured in the course of carrying out work for the business or undertaking and later dies; and
2. the senior officer’s conduct causes the death of the worker; and 
3. the senior officer is negligent about causing the death of the worker by the conduct.

As this provision relates solely to a natural person, the maximum penalty that can be imposed is 20 years imprisonment.

As with most laws, there are various exceptions outlined within the legislation. The existing standard of proof in Queensland for criminal negligence, specifically beyond a reasonable doubt applies and the legislation also makes equivalent amendments to include industrial manslaughter offences in the Electrical Safety Act 2002 and the Safety in Recreational Water Activities Act 2011.

There were also a number of amendments in consideration which were made to the Bill prior to its introduction. These amendments include excluding the availability of the defence of accident provided for in section 23 of the Criminal Code 1899 and that a reference to a worker carrying out work, includes a worker being on their break.

The industrial manslaughter provisions further bolster an employer’s duties to employees under the Workplace Health and Safety Act 2011 and associated legislation. What these amendments attempt to do is widen the scope of liability to ‘senior officers’.  This term is defined incredibly broadly as any person who is concerned with, or takes part in, the corporation’s management, regardless of whether the person is a director or the person’s position is given the name of executive officer.

 

Response

Mining and related activities are inherently dangerous and accidents occur despite the very best efforts of management.

It is debatable whether the most effective response to the recent spate of deaths is that outlined by the government or whether the focus ought to be on further resourcing the implementation of training and systems to protect workers. However, the reality is that the introduction of potential serious criminal liability for failures of management mean that all involved must take proactive steps – not simply to meet their existing legal obligations but to conduct operations in a manner which will provide protection against potential future prosecution and prepare them for the challenges inherent to an investigation.

The role of the experienced criminal lawyer in these circumstances is one of proactive risk management. Our lawyers are regularly involved in representing clients charged, or at risk of being charged, with such offences.

This article does not constitute legal advice. Any such advice depends on the circumstances of every case.

Potts Lawyers offer a free initial consultation to discuss the services we can provide.

 

Article by Cameron Browne, Director