New NSW offence for workplace deaths

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New NSW offence for workplace deaths

A draft Bill providing for a new offence with jail penalties and a doubling of fines, when a breach of safety legislation results in death, was released this week.

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A draft Bill providing for a new offence with jail penalties and a doubling of fines, when a breach of safety legislation results in death, was released this week.

The Minister for Commerce, John Della Bosca commented:

'While the incidence of incidents and injuries has been falling consistently in New South Wales, the number of workplace fatalities remains unacceptable.

This legislation is aimed at rogue employers whose callous disregard for workers’ lives results in death. The punishment must fit the crime.

...The amendments to the Occupational Health and Safety Act include jail terms of five years and a doubling of monetary penalties to $165,000 for an individual (including directors and managers) and $1.65 million for a corporation.’

The amendments implement the primary recommendations of a panel of legal experts, headed by Sydney University Dean of Law, Professor Ron McCallum, who investigated the most effective way to strengthen New South Wales’ laws.

Factors relevant to sentencing

Under a new provision, a court must take into account five aggravating factors when sentencing:

  • That the risk to safety was reasonably foreseeable.

  • Available and feasible steps could have been taken to mitigate/avoid the risk.

  • The risk from the breach could have caused serious injury or death.

  • Death or serious injury was caused by reckless or negligent conduct.

  • The employer gained a financial advantage by not implementing safe systems of work.

The minister argued that listing these factors in the Act will ensure that courts must recognise the unique features of occupational health and safety laws when sentencing offenders and will promote greater transparency and accountability in sentencing.  

Consultation on draft Bill

Mr Della Bosca said:

 ‘A comprehensive consultative process has determined that new provisions in the Occupational Health And Safety Act will be the most effective legislative approach for dealing with workplace fatalities,

The Government will consult with employers, unions and members of the public, before a final version of the Bill will be introduced to State Parliament.

On the expert panel’s proposal for code of practice for directors and managers, I have asked WorkCover’s Advisory Council to advise me on the content and structure of a code.’
 

Draft Bill and comments

A copy of the exposure draft Bill is available here.
See, in particular: New penalties for workplace deaths.

Comments can be sent to office@smos.nsw.gov.au 

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