Industrial manslaughter laws should be consistent: AMMA

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Industrial manslaughter laws should be consistent: AMMA

The NSW workplace deaths legislation commenced on 15 June and soon after the Australian Mines & Metals Association declared Australia’s industrial manslaughter legislation a mess.

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The NSW workplace deaths legislation commenced on 15 June and soon after the Australian Mines & Metals Association declared Australia’s industrial manslaughter legislation a mess.

A national circular released by AMMA on 29 June says because of the proliferation of various state and federal legislation dealing with industrial manslaughter, the same offence carries different tests for liability and different penalties for convictions.

‘These inconsistencies can only breed injustice,’ AMMA says.

National position

The circular says the recent NSW OH&S Workplace Deaths Act 2005 is a cause for particular concern and attention as it provides for offences to be prosecuted before the NSW Industrial Relations Commission.

Various employer groups have said that industrial offences which carry potential jail terms should be heard in a criminal court where there is a jury.

Steve Knott, Chief Executive of AMMA, said his organisation has taken a ‘consistent national position on the issue of industrial manslaughter’.

‘That position is that these matters should be left solely to criminal law (including all of its statutory and common law principles and defences) and that any prosecutions for the offence of manslaughter (in the workplace or in the community) should only occur before a proper criminal court with normal rights of appeal,’ he said.

‘None of the legislation identified in this circular satisfies the AMMA position.’

In the circular AMMA provides its members with a general overview of the different aspects to industrial manslaughter legislation in each state and territory.

Legislation passed 

Legislation is now in force dealing with the individual offence of industrial manslaughter in the following jurisdictions:

Australian Capital Territory 

Crimes (Industrial Manslaughter) Amendment Act 2003 (ACT) which inserted a new Part 2A ‘Industrial Manslaughter’ Provision into the Crimes Act 1900 (ACT).

Victoria 

Occupational Health and Safety Act 2004 (VIC) which contains a ‘Duty not to recklessly endanger persons at the workplace’ at Section 32.

Western Australia 

Occupational Health and Safety Act 1984 (WA) which contains an industrial manslaughter provision at Section 21C entitled ‘Breaches of section 21B’.

New South Wales 

Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (NSW) which amends the Occupational Health and Safety Act 2000 (NSW) and inserts a new Part 2A ‘Workplace Deaths - Offence’.

Commonwealth 

Occupational Health and Safety (Commonwealth Employment) Act 1991 which provides for criminal monetary penalties to be imposed upon private businesses which are manufacturers, suppliers or installers of plant, equipment and substances used by Commonwealth employees. This legislation does not contain jail terms penalties.

Legislation proposed 

There has been no written industrial manslaughter legislation proposed as yet in Queensland, Tasmania or the Northern Territory.

In South Australia, the Occupational, Health Safety and Welfare (Industrial Manslaughter) Amendment Bill 2004 has been introduced as a private members bill into the Parliament of South Australia by the independent Nick Xenophon and had a first reading.

Monetary penalties 

The following maximum monetary penalties apply (or are proposed, as in SA) to the offence of industrial manslaughter in each jurisdiction:

 

ACT

NSW

WA

VIC

SA

CWLTH

 

Individual

 

$200k

 

$165k

 

$250k to $312,500k

 

 

$184k

 

$500k

 

$9k

 

Company

 

$1M

 

$1.65M

 

$500k to $625k

 

 

$920k

 

$500k

 

$495k

JAIL TERMS 

The following maximum jail terms apply to the offence of industrial manslaughter in each jurisdiction for relevant ‘persons’:

 

ACT

NSW

WA

VIC

SA

CWLTH

 

1st

Offence

 

 

20yrs

 

5yrs

 

2yrs

 

 

5yrs

 

20yrs

 

N/A

 

2nd Offence

 

 

20yrs

 

5yrs

 

2yrs

 

 

5yrs

 

20yrs

 

N/A

JURISDICTIONAL DIFFERENCES 

The following differences between jurisdictions as to conduct, fatality required and legal forum may be identified:

 

Jurisdiction

 

General Conduct Test

 

 

Injury Required

 

 

Legal Forum

 

ACT

 

‘Reckless’ or ‘Negligent’

 

 

Death

 

Magistrate

 

VIC

 

‘Reckless’

 

Danger of Serious Injury

 

 

Magistrate

 

WA

 

‘Gross Negligence’

 

 

Death or Serious Harm

 

Magistrate

 

NSW

 

‘Reckless’

 

Death

 

NSW Industrial Commission

 

 

SA

 

‘Reckless Indifference’

 

 

Death

 

Magistrate

 

Cwlth

 

‘Negligent’ or ‘Reckless’

 

 

Death or Serious Injury or substantial risk of same

 

 

Magistrate

Related 

Employer proposal on NSW fatality laws
 

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