SA-BEST has a strong history of commitment to workplace safety and in supporting people affected by unsafe work.
The question as to whether South Australia needs a new Industrial Manslaughter offence is best answered with another question – would that just introduce another toothless tiger into law?
SA-BEST believes the priority on work health and safety prevention sits firmly with law enforcement. We are concerned about the steep decline in prosecutions under the Work Health and Safety Act 2011 as well as a sentencing regime that hands down inconsistent results, we think these areas should be the focus of our attention.
Our position on Corporate Manslaughter law is that if we were to go down that path, we should take advantage of jurisdictions that have successfully developed and prosecuted dozens of corporations. The UK model is precisely that - based on gross negligence and with a penalty regime and sentencing guidelines capable of delivering just outcomes to even the largest multinational corporations (unlimited fine).
The but remains; until an appetite exists to prosecute current safety laws, there is no logic to adding another to the wastepipe.
What we can and should address immediately are the flaws in the current law. This is a list of our priorities in that regard.
Our immediate position is to address the issues that can make a difference now:
- Victims of Crime: We need to provide families impacted by a workplace death with independent advice to guide them through the institutional corridors from the outset. This would include being represented at various times in proceedings. It should also include alternative responses like restorative justice or inquests. They have a stake in this process and they should be afforded some control.
- Enforcement: There is no greater risk to general deterrence than failing to enforce the law – we would look to making this the greatest priority in dealing with unsafe work
- Insurance: The ability for companies to insure themselves against criminal penalties when prosecuted must be prohibited to safeguard the deterrence element in the law
- Dishonest Directors: Where a director has acted dishonestly in relation to a conviction under safety laws where a worker has died, the court is empowered to activate s 206B Corporations Act – to disqualify that director from managing a corporation into the future
- Enforceable undertakings: They will no longer be available in matters relating to a fatality or serious injury without the expressed consent of the victims and only then, with the complete disclosure of evidence relating to the charges.
- Reasonable Excuse: The party contending they had a reasonable excuse to place a worker at risk of death will bear the burden of proof beyond reasonable doubt
- Sentencing Guidelines: Sentencing guidelines are an important measure of justice. We would implement specific and definitive sentencing guidelines designed to deal with a corporation and its quirky legal persona.
THE UK SYSTEM OF CORPORATE LIABILITY
Corporate Culpability – Corporate Manslaughter and Corporate Homicide Act 2007 (UK)
- As of April 2017 it had been subject to more than 25 successful convictions – the majority of which involved workplace deaths.
- Separate charges under Work Health and Safety Laws are still possible and quite common
- This offence was designed to capture large scale disasters such as ferry and rail disasters – it projects beyond industrial deaths.
- The maximum fine is unlimited – it operates to ensure even the largest corporations are appropriately fined with sentencing guidelines to direct sanctions.
- The health and safety laws focus on the worker being exposed to a ‘risk’ – this corporate manslaughter legislation focuses on the outcome of death.
- There is no prison sentence – this law uses financial penalties to deter.
- There is a separate offence to which individual culpability applies. It is based on gross criminal negligence and this is not as difficult a hurdle as that of the category 1 offence.
Individual Culpability - Gross Negligence Manslaughter
- The reckless conduct element as drafted in s 31 (Category 1 offence) in the Work Health and Safety Act 2012 (SA) requires a conscious mindset to take a risk without justification.
- The UK has maintained its common law offence to prosecute directors where conduct falls far short of the standard of a reasonable person in his position. There is no need to prove an intention to place a worker at risk.
- This common law offence has successfully imprisoned negligent directors in the UK but so far has only been successful against small sole-director businesses.
- It is often used as a bargaining chip for a guilty plea under the broader corporate offence.
- South Australia has successfully convicted and imprisoned a company director under its common law criminal negligence offence. This matter reflected a road traffic accident where the police and the DPP controlled proceedings.
ANOTHER TOOTHLESS TIGER WILL NOT ADDRESS BROADER ISSUES SURROUNDING A GENERAL LACK OF WILL TO ENFORCE THE LAWS WE HAVE IN SOUTH AUSTRALIA
- Real Law Reform: Workplace safety and accountability mixed with the criminal law has been shown to cause substantial harm to the people who survive the deceased worker. Recent research confirms the need to revisit how the process of investigation, prosecution and compensation interact together. We will be calling for stakeholders to engage in discussions that look more closely at progressive models such as those being utilised in other areas of the criminal justice system. If they can fit the industrial relations landscape, then our goal of harm minimisation becomes achievable.
SOUTH AUSTRALIA’S HISTORY ON INDUSTRIAL MANSLAUGHTER
21/01/2018: SA LABOR announced its promise to amend Work Health and Safety legislation with the introduction of an Industrial Manslaughter provision - if elected in March. The gauntlet was then thrown down in seeking SA BEST’s support those changes.
Historic snapshot: Industrial Manslaughter SA
It should be noted; Nick Xenophon has historically endeavoured to bring about tougher corporate accountability measures by way of private members Bills.
- December 2004: Nick Xenophon tabled Industrial Manslaughter legislation in the upper house. Labor did not support
- May 2005: Nick tabled amendments to remedy an unused and unworkable s 59 ‘aggravated offence’ in the old OHS laws. No support from Labor.
- December 2006: Labor expressly rejected Industrial Manslaughter legislation.
- July 2010: Labor rejected the Green’s push for industrial manslaughter legislation in favour of harmonised laws.
- November 2012: Labor’s Industrial Relations Minister refers to industrial manslaughter laws as providing little more than ‘symbolic appeal’.
- April 2016: The Government rejects Industrial Manslaughter amendments put forward by Greens because the current WHS and criminal laws are adequate.
- April 2016: The SA Union’s position voiced concerns on industrial manslaughter fearing the current criminal and common law would be compromised. The preference here was to amend the Category 1 offence to reflect a penalty more aligned with causing death by dangerous driving.
- Note: There is no instance where SA Liberal party has supported industrial manslaughter legislation
What this shows us is a snapshot of the general reluctance over more than a decade of Hansard of both major parties in their view of bringing about a connection with employment activity and the word ‘manslaughter’.
 R v Adomako  1 AC 171; R v Misra, R v Srivastava  EWCA Crim 2375.