South Australia passes industrial manslaughter laws
On 7 December 2023, the Work Health and Safety (Industrial Manslaughter) Amendment Act 2023 (SA) (amending Act) received royal assent. The amending Act amends the Work Health and Safety Act 2012 (SA) (Act) to incorporate industrial manslaughter offences.
It brings South Australia’s work health and safety laws in line with the majority of states and territories across Australia that have already introduced a specific offence of industrial manslaughter. While the date is yet to be set, it is expected that the new laws will come into operation in mid-2024.
The amending Act provides that it is an offence of industrial manslaughter when a person engages in conduct that breaches a health and safety duty and the person engages in the conduct with ‘gross negligence’ or is ‘reckless’. If the breach of the health and safety duty causes the death of a person, the person is guilty of industrial manslaughter.
It defines ‘gross negligence’ as conduct involving ‘a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances’ and a high risk of causing the death or serious injury or serious illness.
The amending Act provides that a person is ‘reckless’ as to the risk to an individual of death or serious injury or illness if ‘the person is aware of a substantial risk that death or serious injury or illness will happen’ and ‘having regard to the circumstances known to the person, it is unjustifiable to take the risk’.
The offence of industrial manslaughter will apply to both persons conducting a business or undertaking (PCBU) and their ‘officers.’ An officer includes a director or secretary of a corporation or a person who participates in the decision making affecting the whole or a major part of a business or undertaking.
Unlike other offences under the Act, industrial manslaughter will not be subject to the 2 year statute of limitation for prosecution. This means that prosecutions for offences in relation to industrial manslaughter may be brought many years, and at any time, after the event.
The maximum penalty for the offence of industrial manslaughter comprises penalties up to $18 million for corporations, or up to 20 years imprisonment for individuals (other than workers).
At this stage, the amending Act does not prohibit insurance and indemnity for pecuniary penalties in South Australia. As at the time of this Limebite, insurers are still able to cover fines for breaches of the Act in South Australia.
The implications of the amending Act on insurers and their insureds include the possibility of a claim involving an industrial manslaughter offence triggering a reckless and wilful acts exclusion so as to exclude the claim from cover. The application of such an exclusion will of course be subject to the terms of the policy which may require an admission of guilt or conviction.
If you require further information in relation to the new legislation, please do not hesitate to contact us.