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Blame on steroids – what Australia’s leading WHS lawyer thinks about industrial manslaughter legislation

31 Mar 2022, by Amy Sarcevic

In 2020, Queensland’s District Court handed down its first industrial manslaughter prosecution, sentencing two directors of Brisbane Auto Recycling to a ten month suspended prison sentence, following the accidental death of a worker. The directors admitted to negligence in the lead up to the accident, which saw victim, 52 year old Tiger Willis, caught between a forklift and truck, tragically losing his life eight days later.

Since their introduction, industrial manslaughter laws have been criticised, with some claiming the maximum 20 year jail sentence in some jurisdictions is too punitive for an ‘act of omission’ (failing to do something that results in harm) – as opposed to an ‘act of commission’ (doing something that results in harm). All the more so given that laws expose even managerial-level staff to imprisonment in some jurisdictions.

WHS lawyer Harold Downes acted for Brisbane Auto Recycling in the case and said telling his clients to “bring a toothbrush” to their hearing – given the prospect of jail – was difficult; particularly as he feels industrial manslaughter has done little to improve workplace safety.

In fact, Mr. Downes believes the laws may have done more harm than good, by concealing important safety learnings under a veil of legal ‘privilege’ – where individuals and companies are permitted to keep sensitive information confidential. Additionally, he says they contradict the very fabric of ‘no blame’ safety rhetoric, widely championed by unions in a bid to encourage incident reporting.

“Unions have been the main protagonists of open, ‘no blame’ safety cultures at work for years; the idea being that people are not afraid to report safety incidents to authorities,” said Mr. Downes ahead of the Industrial Manslaughter Conference, hosted by Informa Connect. “Ironically though, industrial manslaughter is ‘blame on steroids’, particularly in Queensland where the maximum prison sentence (20 years) is the most impactful of all Australian jurisdictions.

“The legislation has left managers, directors and PCBUs petrified of going to jail, but has not achieved any useful safety outcomes, given that important learnings are kept ‘hush hush’ to avoid potentially incriminating evidence getting out. Findings and reports cannot be put in the public domain and even the business itself may find it difficult to access them. This shutting down of information is massively problematic. As one of the only lawyers to have worked on a completed industrial manslaughter case in Australia, I can personally attest to that,” he added.

Complicating matters, Mr. Downes believes industrial manslaughter prosecutions are complex to defend, making it hard to target the right people and behaviours. “It’s a complicated area that cuts across some very technical areas of black letter law and human resources,” he said. “Using Queensland as a model, there is a fine line between a category 1 WHS offence (‘recklessness’) which carries a monetary penalty and a maximum five year sentence, versus industrial manslaughter, which involves ‘criminal negligence’.

“Moreover, the legislation has big impacts on corporate reputations and individuals’ careers – all of that on the back of the traumatic event of a death. It can be really difficult to sit down and explain to non-lawyers – even lawyers – how and why industrial manslaughter [which requires negligence to be proved] and a category 1 offence [which requires recklessness] can result in such different penalties.”

Given these arguments, Mr. Downes believes industrial manslaughter is nothing more than a “political hot potato”, implemented only so that leaders do not appear ‘anti-safety’ in the aftermath of high profile incidents. The widely reported death of four visitors at Dreamworld theme park in 2016 is said to have been the catalyst for industrial manslaughter, with the legislation adopted by several states in the years thereafter.

Mr Downes believes a stronger evidence base and more finesse is needed for the laws, particularly as the Dreamworld incident did not involve workers, and would therefore not have been captured by the legislation, had it have existed at the time.

Perhaps the legislation’s only redeeming feature, he says, it that senior executives have begun talking more about safety. “It has opened up discussions, and that’s a positive start, but without the visibility throughout the incident investigation process, this means very little.”

Harold Downes is a partner at Mills Oakley with a national WHS practice. He has more than 30 years’ experience and is ranked as preeminent in his field.

Hear more from Mr. Downes at the Industrial Manslaughter Conference hosted by Informa Connect. This year’s event will be held at the Hilton Sydney on 31st May 2022.

Learn more and register.

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