Marie Boland, the former Executive Director of SafeWork South Australia this week released a review of national workplace, health and safety laws. Ms Boland has recommended there should be a separate industrial manslaughter offence for workplace deaths, where there has been a gross deviation from a reasonable standard of care. Ms Boland says that the new offence is required to address community concerns and limitations in existing criminal manslaughter laws.
Carl Delaney was working for a subcontractor on the INPEX Itchthys LNG Project when he lost his life on the night of Wednesday, 29 November 2017. Under existing laws, an organisation can commit the crime of negligent manslaughter. However, Ms Boland’s review found that lawyers have identified loopholes in getting a conviction.
In this case, the report suggests that prosecutors need to identify a negligent individual who represents the company, and whose conduct can be attributed to the situation in hand instead of prosecuting the whole organisation.
Another example is the Dreamworld fatalities, the case argues that the deaths could have been prevented by the push of a button. Who is in charge in this scenario, the organisation? Or is it the person in charge of pushing the button?
Marie Boland has recommended through her review that someone who holds a duty of care should be liable if they are the ones who have shown negligence in their work and have exposed another individual to a serious or life-threatening situation. She also mentions that people or organisations should not be able to recover the cost of penalties due to such acts under insurance.
The federal government in NSW has opposed the introduction of industrial manslaughter laws and industry groups have argued that existing criminal laws against manslaughter under state crimes Acts are enough.
ACT and Queensland government have introduced industrial manslaughter laws and the Labor Party has promised to introduce them in Victoria and NSW if they are successful in the March State Election.
Hear more from Marie Boland who will share her insights on ‘Does the punishment fit the crime? Reflections on the 2018 model WHS laws review’ at the WHS Prosecution and Enforcement Conference on the 19th & 20th June 2019 in Melbourne.
Ms Boland will reflect on the review report and the differing views about the level of punishment needed as a deterrent in the WHS context. She will also present her personal views about WHS offices, penalties and sentencing and the future of WHS enforcement practices.