Article

Understanding industrial manslaughter laws: Where is Australia at in 2024?

A state-by-state status update on industrial manslaughter laws across Australia in 2024 and what it means for businesses in Vic, NSW, WA, Qld, SA, NT, ACT and Tas.

Updated 22 July 2024 (Originally published 30 November 2023)

At a glance:

Recent development includes the NSW Government enacting industrial manslaughter laws on 20 June 2024, and Tasmania’s historic passing of an industrial manslaughter Bill by the lower House on 19 June 2024.
Systematic change and proactive risk management within businesses and organisations are critical to the success of elevating the overall standards for workplace safety.
Insurance is typically not available where the loss is uninsurable at law. Cover for legal/defence costs is generally still permitted.

The independent review on national Work Health and Safety (WHS) laws conducted by Marie Boland on behalf of Safe Work Australia in 2018 proposed several key recommendations, one of which was the inclusion of the offence of industrial manslaughter^[1]. Since the review, industrial manslaughter has been increasingly under the spotlight in the ongoing discussion and advancement of WHS laws throughout Australia.

Tasmania is currently the only jurisdiction yet to enact legislation on this offence, however a Bill has passed the lower House in a historic moment, and will now progress through the upper House.

Despite legislative progress in recent years, the number of workplace fatalities in Australia have remained relatively static over the last five years. In 2022 alone, 195 Australian employees tragically lost their lives at their place of work^[2]. In addition to laws and regulations, systematic change and proactive risk management within businesses and organisations are critical to the success of elevating the overall standards for workplace safety and reducing serious injury and fatality risks. Organisations need to proactively review and implement the necessary changes/improvements to their safety systems to ensure a safe work environment is provided and maintained. The consequences of not doing so can be severe.

A good place for companies to start is having a sound understanding of industrial manslaughter laws in the various jurisdictions you operate in and how they may impact your business. Let’s take a closer look at each state and territory.

Overview of industrial manslaughter laws by state/jurisdiction

In September 2023, the Federal Government put forth a Bill aimed at addressing the "loopholes" in Commonwealth employment laws.^[3] This Bill suggests several modifications to Commonwealth work health and safety legislation, including the implementation of industrial manslaughter provisions at the Federal level. These provisions would be applicable to both the Commonwealth public sector and Comcare covered licensees.

If approved, persons conducting a business or undertaking (PCBU) and their officers, falling under the jurisdiction of the Commonwealth WHS Act, would be subject to a new offence of industrial manslaughter if their actions of "gross negligence or recklessness" are found to have played a role in the death of a worker. The penalties for individuals could result in imprisonment for up to 25 years, while bodies corporate could face fines of up to $18 million.^[4]

On 20 June 2024, the NSW Government made landmark progress by passing the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024.^[5] The new law introduces an industrial manslaughter offence, which holds businesses and individuals accountable for any loss of life resulting from gross negligence.

Under this new law, a body corporate will face the highest financial penalties in Australia, with a maximum fine of $20 million. Additionally, individuals found guilty of gross negligence that leads to a workplace fatality may face a maximum prison sentence of 25 years.^[6] These severe penalties reflect the government's commitment to deterring unsafe practices and reinforcing the importance of maintaining safe working environments.

As of 1 July 2024, industrial manslaughter is a criminal offence in South Australia with the introduction of the Work Health and Safety (Industrial Manslaughter) Amendment Act 2023. The legislation introduces a new industrial manslaughter offence under section 30A of the Work Health and Safety Act 2012 (SA).

These new laws bring South Australia in line with other jurisdictions which have made industrial manslaughter an offence. Under this law, individuals face a maximum penalty of 20 years imprisonment, while an offence committed by a body corporate can face maximum fines of $18 million.^[7]

In November 2020, the Work Health and Safety Act 2020 (WA) was passed, bringing Western Australia in line with work health and safety laws in most other jurisdictions. The Act includes an industrial manslaughter offence, which occurs when a duty holder (including officers of PCBUs in some situations) fails to comply with their health and safety duty and engages in conduct that causes the death of an individual, knowing that the conduct was likely to result in death or serious harm, and disregarding that likelihood. The maximum penalty for an individual is 20 years' imprisonment and a fine of $5 million, while companies can face fines of up to $10 million.^[8]

On 1 July 2020, the offence of workplace manslaughter was introduced in Victoria. This law states that a corporation or officer can be charged with workplace manslaughter if they engage in conduct that is negligent, breaches an applicable duty owed to another person, and results in the death of that person. The maximum penalty for individuals is 25 years' imprisonment, while companies can face fines of up to $19.23 million.^[9]

On 1 February 2020, the Northern Territory amended the WHS Act NT to include an industrial manslaughter offence. Under this law, a PCBU or an officer of a PCBU can be charged with industrial manslaughter if they intentionally engage in conduct that breaches a health and safety duty and results in the death of an individual to whom the duty was owed. The PCBU or officer must also have been reckless or negligent about the conduct breaching the health and safety duty and causing the death. The maximum penalty for an individual is life imprisonment, while companies can face fines of up to $11.5 million.^[10]

The offence of industrial manslaughter came into effect in Queensland in 2017. This law makes it illegal for a PCBU or a senior officer to cause the death of a worker through negligence, including cases where a worker is injured while carrying out work and later dies. The maximum penalty for an individual is 20 years' imprisonment, while companies can face fines of up to $15.48 million.^[11]

Industrial manslaughter has been a criminal offence in the ACT since 2004. In 2021, legislative amendments were introduced to align with other work safety offences. In the ACT, a PCBU or an officer of a PCBU can be charged with industrial manslaughter if their conduct breaches a health and safety duty and results in someone's death, and if they were reckless or negligent about causing the death. The maximum penalty for an individual is 20 years' imprisonment, while companies can face fines of up to $16.5 million.^[12]

Historically, Tasmania had been the only jurisdiction with no offence for industrial manslaughter, however, on 19 June 2024, the Tasmanian Labor Party achieved a significant milestone by successfully passing its industrial manslaughter laws. The new Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 introduces an offence for industrial manslaughter in the Work Health and Safety Act 2012 (the Act).

The swiftness in passing the legislation despite facing some opposition demonstrates the growing support from the Tasmanian Government and its recognition for the urgent need for stronger measures to promote a culture of workplace safety and accountability. Following passing by the lower House, the Bill will now progress through the upper House for consideration and will likely be enacted in 2025.

By enacting industrial manslaughter laws, the Tasmanian Government will take a proactive stance in prioritising the wellbeing and safety of workers. Under the proposed Bill, the maximum penalty for an individual is 21 years' imprisonment, while bodies corporate can face fines of up to $18 million.^[13]

Snapshot: Industrial manslaughter test and maximum enforceable penalty


Jurisdiction	Status	Industrial manslaughter test	Maximum penalty
Jurisdiction	Status	Industrial manslaughter test	Maximum penalty
Commonwealth	Proposed	“actions of gross negligence or recklessness”	Individuals - imprisonment for up to 25 years. Body corporate - Fines of up to $18 million
NSW	In force	“person was reckless or negligent as to whether the conduct would cause the death of an individual”	Individuals - imprisonment for up to 25 years. Body corporate - Fines of up to $20 million
SA	In force	“grossly negligent or reckless conduct”	Individuals - imprisonment for up to 20 years. Body corporate - Fines of up to $18 million
WA	In force	“knowing that the conduct was likely to result in death or serious harm, and disregarding that likelihood”	Individuals - imprisonment for up to 20 years and a fine of up to $5 million. Body corporate - Fines of up to $10 million
Vic	In force	“through negligence”	Individuals - imprisonment for up to 25 years. Body corporate - Fines of up to $19.23 million
NT	In force	“reckless or negligent about the conduct”	Individuals - imprisonment for life. Body corporate - Fines of up to $11.5 million
Qld	In force	“through negligence”	Individuals - imprisonment for up to 20 years. Body corporate - Fines of up to $15.48 million
ACT	In force	“reckless or negligent about causing the death”	Individuals - imprisonment for up to 20 years. Body corporate - Fines of up to $16.5 million
Tas	Proposed	“engages in conduct that is negligent“	Individuals - imprisonment for up to 21 years Body corporate - Fines of up to $18 million

How does this impact businesses and what should you do?

These laws serve as a call to all organisations to thoroughly assess their safety systems and governance structure, ensuring that directors and officers possess effective oversight of business operations and prioritise safety management.

Regardless of these laws, the impact of a workplace fatality or serious injury is profound. It not only results in a tragic loss of life but also affects the individual's family and friends, other employees, the reputation and functioning of the business, and the local community. While proactively implementing effective safety systems may incur expenses, the cost of an inadequate or non-existent safety system can be far greater.

All businesses and organisations need to have a robust risk management system in place that mitigates risk, identifies hazards, encourages reporting and responds in crisis situations. It needs to be a system that is functional, practical, understood and used by all levels of management and staff.

Safety systems and protocols should be periodically reviewed, audited, and tested to ensure they meet the latest industry standards. Sound WHS practices and consistent supervision should form the foundations of a safe work environment, which helps to mitigate workplace fatality risks.

Additionally, incorporating WHS on board agendas helps to encourage regular discussions and focus by senior management on the critical topic of health and safety.

Fines and penalties do not discriminate against company size, type or industry

Recent case law related to industrial manslaughter shows that the size, industry or complexity of an organisation do not play a role in judgements. We have witnessed trials play out in the public eye and severe penalties being imposed to both the individual and/or the company across businesses of all sizes, ranging from sole traders to large organisations. Most companies that experienced a workplace fatality also faced significant disruption to their business operations from the impacts of a trial or prosecution, cost of penalties and reputational damage.

Below are some examples of recent industrial manslaughter cases that have resulted in significant fines and/or imprisonment.

In February 2024, Victoria recorded its first industrial manslaughter conviction against a stonemasonry business. LH Holding Management Pty Ltd was found guilty of workplace manslaughter and was fined $1.3 million. The sole director received a two-year Community Corrections Order and was required to complete 200 hours of unpaid community work and undertake a course in forklift operation.
In 2022, at Gympie District Court (Queensland), Jeffrey Owen was found guilty of industrial manslaughter after a trial. Mr. Owen was charged with one offence under section 34C of the WHS Act, alleging that in July 2019, he negligently caused the death of a worker. He was sentenced to five years' jail, to be suspended after serving 18 months.
In June 2020, Brisbane Auto Recycling Pty Ltd was found to have committed industrial manslaughter and ordered to pay a fine of $3 million. The directors were sentenced to 10 months imprisonment based on reckless conduct, a category 1 offence.
In May 2021, Western Australia recorded its first conviction for industrial manslaughter against Mark Withers, director of MT Sheds (WA) Pty Ltd, who was sentenced to 2 years and 2 months imprisonment.
In July 2023, at New South Wales District Court, Arbor Tree Service Pty Ltd was charged with a breach of category 1 offence and was convicted and fined $2.025 million. This represented the largest court imposed fine for a business in NSW.

What are the insurance implications?

When it comes to industrial manslaughter laws and their potential implications on insurance, it is a general principle that insurance is not available where the loss is uninsurable at law (whether the policy provides such a term or not). This would include any policy that may appear to indemnify a person or entity against criminal liability if the crime is one which can only be or is in fact committed with both guilty intent and guilty act. Any insurance contract purporting to insure against such risks would be void and unenforceable. This is for reasons of public policy on the basis that a person or entity should not benefit from their own wrongdoing and, by extension, may not be indemnified against the consequences of that wrongdoing.

The insurance position is less clear where the crime is one of strict liability and the conduct of the offender is morally innocent. By and large, commentators in the insurance and legal industry prefer the view that insurance can cover such risk. This may depend on whether there is an element of fault attributable to the person or entity who has committed the strict liability offence.

Notwithstanding the above, insurance for legal and defence costs are typically still permitted under policies that provide this cover.

Although an employer can potentially obtain insurance for their legal defence costs, they are unlikely to be able to obtain indemnity for the significant fines associated with an industrial manslaughter conviction. Ultimately, to avoid imprisonment and/or heavy fines which may be uninsurable at law, it is crucial that employers implement comprehensive safety systems and comply with the relevant WHS laws applicable for their respective jurisdictions.

For a more detailed analysis of WHS legislations and their implications on specific classes of insurance, please refer to our previous publications Victoria insights paper and NSW and WA insights paper.

Learn more

To learn more about how industrial manslaughter laws may impact your business and your insurances, or if you need assistance with reviewing, testing, designing or implementing effective safety systems throughout your business, please contact your Marsh representative.

_{[1] www.safeworkaustralia.gov.au/law-and-regulation/model-whs-laws/review-model-whs-laws

[2] https://data.safeworkaustralia.gov.au/insights/key-whs-stats-2023

[3] www.ashurst.com/en/insights/commonwealth-to-introduce-industrial-manslaughter-offence/

[4] https://ministers.dewr.gov.au/burke/albanese-labor-government-criminalise-industrial-manslaughter

[5] www.parliament.nsw.gov.au/bills/Pages/Profiles/work-health-and-safety-amendment-industrial-manslaughter-bill-2024.aspx

[6] www.pinsentmasons.com/out-law/analysis/changes-to-nsw-work-health-and-safety-legislation

[7] www.safework.sa.gov.au/enforcement/industrial-manslaughter

[8] www.commerce.wa.gov.au/worksafe/enforcement-offences-and-penalties

[9] www.legislation.vic.gov.au/in-force/acts/occupational-health-and-safety-act-2004/044

[10] https://legislation.nt.gov.au/en/Legislation/WORK-HEALTH-AND-SAFETY-NATIONAL-UNIFORM-LEGISLATION-ACT-2011

[11] www.legislation.qld.gov.au/view/html/inforce/current/act-2011-018

[12] www.worksafe.act.gov.au/laws-and-compliance/industrial-manslaughter

[13] www.parliament.tas.gov.au/__data/assets/pdf_file/0016/82123/15_of_2024-Fact-Sheet.pdf}

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Understanding industrial manslaughter laws: Where is Australia at in 2024?

Overview of industrial manslaughter laws by state/jurisdiction

Snapshot: Industrial manslaughter test and maximum enforceable penalty