Article by Nicholas Graham

Industrial manslaughter may soon become a criminal offence under South Australian law, per a promise made by the Labor Government to minimise the number of avoidable deaths and workplace injuries. 

If the proposed changes to legislation are passed, the office will apply to both persons conducting a business or undertaking and officers. If found guilty, these persons could face severe financial penalties and up to 20 years of jail time.

Construction is an industry that is often exposed to work safety risks, and therefore, it is essential for industry members to consider the implications of the proposal. 24 of the 169 work-related fatalities in 2021 occurred in the construction industry. This statistic was exceeded only by deaths in transport/warehousing and agriculture. 

In South Australia, the proposed amendment to the Work Health and Safety Act 2012 (SA) will only extend to avoidable deaths in the workplace. Should the law come into force, the threshold to risk prosecution for a preventable death will require the employer to be found to have knowledge of or engaged in reckless or grossly negligent conduct that can be identified as the primary cause of an employee’s or other person’s death in the workplace. 

The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022 was introduced in the Legislative Council of the South Australian Parliament on 3 May 2022.  Many South Australian businesses, industry bodies, professionals, and unions have consulted on the Bill since, calling attention to various concerns.

The Law Society of South Australia and Master Electricians Australia, in particular, have examined the legal complexities that could arise from the amendments. They note that the Bill introduces Industrial manslaughter as a new offence, separate from the existing offence of manslaughter though existing legislation already covers employer negligence causing death. 

While South Australia will seemingly follow the lead of interstate jurisdictions, some international jurisdictions have taken a different approach. In the United Kingdom, for example, corporate manslaughter is a unique statutory offence. Corporate manslaughter applies exclusively to the relevant corporations, though individuals may be charged with the general offence of gross negligence manslaughter. The corporate offence applies when the conduct of senior management amounts to a gross breach of duty of care and causes death. In a case of corporate manslaughter, the evidential threshold required to establish guilt is much higher and more onerous than what is necessary to prove recklessness or negligent conduct in most Australian jurisdictions. 

New Zealand does not currently separate the offence of industrial manslaughter for individuals or companies. Instead, general criminal law that applies to negligent manslaughter may be the basis of prosecution. 

The Government is currently seeking written feedback from the public on the draft bill until February 2023. During this time, feedback can be provided to the Attorney-General at AttorneyGeneral@sa.gov.au for review and consideration by the SA Parliament. The draft bill is expected to be introduced to the House of Assembly for debate later in 2023. We will continue to track the development of the draft bill as it progresses. 

Now more than ever, it is important for employers to consider the risk of becoming liable under the proposed legislation. Employers that carry a high risk of serious injury or death must implement effective mitigation strategies that ensure compliance with the existing duty of care.

Key areas include:

• Safe use, handling and storage of plant structures and substances
• Adequate facilities for the welfare of workers
• Providing necessary information, training, instruction and supervision
• Monitoring of workers’ health and workplace conditions.

If you are an employer in a high-risk industry and have questions about the proposed legislation, health and safety duties, or risk mitigation strategies, get in contact with us.