There has been much talk and growing pressure all around the world for manslaughter legislation to be exercised in cases of reckless endangerment by employers.
There is an equally strong resistance to keep the those two words out of written law.
Canberra at this time is the only state of Australia (A.C.T) to have executed the bold move toward INDUSTRIAL MANSLAUGHTER in their OHS legislation. It is also worth noting however that to date, this legislation has yet to be exercised in a court room.
Recently an amendment to the South Australian OHS legislation modified Section 59 in an attempt to bring about a minor indictable offence where a prison term is possible. The parameters of the legislation require an act of recklessness with regard to workplace safety. The section however still falls well short of actually addressing the seriousness of causing a death.
Today, while our legislation does go someway closer to addressing acts or omissions of reckless safety practise (or lack of), there still seems to remain a gap that acknowledges the seriousness of the consequences.
This is a highly technical area and I don’t pretend to understand the ins and outs of legal arguments but there is a real concern with the amended s59 following a legal argument made by Diemould Tooling Services and Santos Ltd in relation to s19 (an employer’s duty of care) whereby it was argued that it was inappropriate for the summons to make reference to the fact that an employee was fatally injured. It argued, since death or even injury is a part of the particulars that structures s19, that the consequences of the alleged breach, when a death is the result is irrelevant.
The Industrial Magistrates Full Court decision did not agree but in a recent Supreme Court decision Chief Justice John Doyle outlined in paragraph 34 the following:
“I should add that the allegation of a fatal injury to the named employee is unnecessary but legally harmless. The consequence of a contravention of s19 (1) is relevant to the question of penalty but is not an element of the offence”
What that apparently means is that in effect the death is not relevant to the breach of the law but is more likely to be taken into account when the magistrate decides a penalty because in effect it goes some way to describing the seriousness of the breach or contravention.
Our issue with the new s59 is as follows:
59—Offence to endanger persons in workplaces
(1) A person is guilty of an offence if—
(a) the person, without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace; and
(b) the person—
(i) knew that his or her act or acts would create that risk; or
(ii) was recklessly indifferent about whether his or her act or acts would create that risk.
(a) in the case of a natural person—imprisonment for 5 years or double the Division 1 fine;
(b) in the case of a body corporate or an administrative unit in the Public Service of the State—double the Division 1 fine.
It goes without saying there is mention of the consequence in this clause but yet again, just as in the case of s19, it is not a parameter that is specifically required in order for the breach to occur.
The concern here is - is the consequence of death relevant to the contravention or not?
Why is it that in Industrial law, you can be so reckless as to cause death and yet the term of imprisonment is less than ¼ of the potential for those outside the Industrial law court? Why is an employer gifted with the protection of his business when he is reckless with another human life?
We completely accept the myriad of complex legal issues that surround legislators when looking at Industrial Manslaughter legislation. There is no doubt that the process of proving accountability is difficult - but there is even less doubt that the issue is going away.