Queensland Bill proposes new offence of industrial manslaughter

WHO SHOULD READ THIS

• All Queensland businesses and their senior officers.

THINGS YOU NEED TO KNOW

• The Work Health and Safety and Other Legislation Amendment Bill 2017 has been introduced to significantly amend Queensland work health and safety legislation, including the Work Health and Safety Act 2011 (Qld).

WHAT YOU NEED TO DO

• Pending the changes being passed, review work health and safety processes and procedures, and check insurance policies regarding coverage, including for statutory liability.

Following a ‘best practice’ review, the Queensland Parliament has introduced the Work Health and Safety and Other Legislation Amendment Bill 2017 (Bill), which will amend particular safety legislation to include significant departures from the ‘harmonised’ laws. Key changes include creating an offence of industrial manslaughter, reintroducing the role of a workplace health and safety officer (WHSO) and required safety measures in Codes of Practice.

Background

The Bill proposes to amend the Electrical Safety Act 2002 (Qld), the Safety in Recreational Water Activities Act 2011 (Qld), the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Work Health and Safety Regulation 2011 (Qld) (collectively, Amended Legislation).

The proposed changes to the Amended Legislation are intended to improve and strengthen work health and safety regulation in Queensland, with the new industrial manslaughter offence being considered the most significant change.

Amendment timing

Amendments will commence at different times, some commencing on the date of assent, others on the date of proclamation and others from 1 July 2018.

The amendments proposed to commence on assent include:

• introducing an offence of industrial manslaughter by a person conducting a business or undertaking, or by a senior officer of a person conducting a business or undertaking (in essence, negligence causing death)
• introducing maximum penalties for the offence of industrial manslaughter of 20 years imprisonment for an individual or 100,000 penalty units ($10,000,000) for a body corporate
  providing that limitation periods for prosecutions do not apply to industrial manslaughter
• requiring a mandatory review of codes of practice in operation in Queensland every five years
• requiring persons conducting a business or undertaking to provide Health and Safety Representative (HSR) lists and copies of provisional improvement notices issued by HSRs to the regulator, and
• prohibiting the ability to enter enforceable undertakings in circumstances involving a category 1 offence, a category 2 offence that result in a fatality and for the offence of industrial manslaughter.

The amendments proposed to commence on proclamation include:

• establishing an independent statutory office for work health and safety prosecutions
• addressing issue resolution matters by expanding the jurisdiction of the Queensland Industrial Relations Commission to include hearing and determining disputes over health and safety matters, and
• mandating the use of The Director of Public Prosecutions Guidelines when deciding whether to initiate a prosecution.

The amendments proposed to commence on 1 July 2018 include:

• restoring the status of Codes of Practice as they existed under the (now repealed) Workplace Health and Safety Act 1995 (Qld)
• requiring compliance with such Codes, or otherwise providing a standard of health and safety equivalent to or higher than the standard required under the Code
  clarifying the circumstances in which the inspector powers under section 171 of the WHS Act apply
• mandating training for HSRs
• allowing the discretionary appointment of a WHSO, including for sole traders being able to appoint themselves as the WHSO, and
• permitting the appointment of a WHSO or HSR to be used as evidence that a duty holder has taken action to mitigate health and safety risks at a workplace.

Commentary

The introduction of the Bill signals a significant departure from the harmonisation of work health and safety laws that culminated in the WHS Act. This departure was prompted by two incidents in 2016 which sparked the Queensland Government undertaking a best practice review of work health and safety laws. The first high profile incident occurred at Dreamworld when an amusement park ride failed and resulted in four fatalities. This incident remains under investigation. The second incident occurred during the Eagle Farm Racecourse redevelopment when a concrete slab toppled over and crushed two workers at the construction site. The workers’ supervisor is being prosecuted for two counts of manslaughter over the deaths.

Separately to these incidents, Queensland is still yet to see a Category 1 prosecution for ‘reckless’ breaches of work health and safety duties by businesses or officers finalised under the WHS Act. As such, the effectiveness of these measures against both corporate duty holders and their officers remains untested.

Despite this, these high profile incidents have raised concerns about the regulation of public safety matters in Queensland and about the effectiveness of the offences and penalties under the current WHS Act. However, the main object of the WHS Act is ‘to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces’. These amendments therefore appear to be out of step with this WHS Act object and would impose a much higher bar for safety compliance in Queensland than other harmonised jurisdictions.

The Bill has been assigned to the Finance and Administration Committee. A public briefing will be held on 6 September 2017 and submissions addressing any aspect of the Bill are due by 14 September 2017. The Committee is due to report back by 5 October 2017.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.