Industrial Manslaughter now applies in all states

On 2 October 2024 industrial manslaughter became a criminal offence under Tasmania’s WHS which now means it applies in all states and territories.

Industrial manslaughter occurs when negligence or reckless conduct, by a PCBU (usually identifiable as an employing entity) or by an Officer (usually identifiable as a senior manager), causes or substantially contributes to the death of a worker.

Corporations face fines of up to $18 Million.

Individuals face a maximum penalty of 21 years imprisonment.

There are no time limits to bring a prosecution. Other offences have a 2 year limitation period.

The new laws do not apply to Workers and Other Persons at the Workplace – but nonetheless Category 1 Offences still apply to them and individuals can face up to 5 years imprisonment for recklessly exposing another to a risk of death, serious injury or illness.

Our Take

Removing the ‘odd-man’ out status was always a compelling argument for the Tasmanian Parliament.

Unfortunately, ‘harmonising’ of the specific terms was not achieved in this offence so there are still a few differences that exist between the states and territories. Tasmanian industrial manslaughter law appears to be more consistent with the Victorian law for those interested in a comparative analysis.

One jurisdictional difference in how these Industrial Manslaughter provisions operate is the causal link threshold required. VIC, WA, & NSW require the perpetrator’s conduct to cause the death, which provides scope for argument about what the cause of the death actually was (including whether the victim was contributorily negligent). All other jurisdictions stipulate that the conduct only has to make a substantial contribution to the death. This means that if there are multiple factors at play, but the perpetrator’s conduct is still one reason why the victim dies, then the perpetrator is still liable.

The other key difference relates to the fault elements of the offences. While some jurisdictions criminalise conduct that is reckless (where the perpetrator disregards the likelihood of harm or death), other states require negligence or gross negligence (where the perpetrator falls well short of the standard of care expected of them). See the table below for the minimum threshold of fault in each jurisdiction.

We have conducted an assessment of the differences for our retainer clients.

Regardless of the technical differences Tasmanian employers need to be aware that although this new law does not impose any new duties on the PCBU or Officers, the seriousness of the implications of the new offence means an even higher approach should be taken (even accepting the fact that everyone should always do their utmost to avoid the death of a workmate at all times anyway).

Action

• Train your organisations in the new changes

• Add industrial manslaughter to your due diligence training

Edge Legal

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