The problems with Australia’s industrial manslaughter laws

Following a declaration by Queensland’s then-industrial relations minister Grace Grace that companies would not be able to “hide behind elaborate corporate structures”, the state held an independent national review and a Senate committee inquiry. Similar investigations also took place in other jurisdictions across Australia.

Although industrial manslaughter laws were progressively introduced between 2017 and 2024, they have so far resulted in few successful prosecutions, according to research from the Australian Catholic University’s (ACU) Peter Faber Business School’s Associate Professor Trajce Cvetkovski and Queensland barrister Neville Weston.

“Fast forward eight years and I think to myself, ‘Well, where are these industrial manslaughter prosecutions? Where are the individuals being prosecuted? Where is this upstream process to try and lift the corporate veil? Quite frankly, I can count on one finger how many individuals [were prosecuted], and they were hardly C-suite,” Cvetkovski told Lawyers Weekly.

At the time Queensland enacted its industrial manslaughter laws, the government said it was committed to seeing top-level corporate figures held to account. The first occurred in 2022 with the conviction of Jeffrey Owen of Owen’s Electric Motor Rewinds, whose negligence caused the death of a worker crushed under a generator.

While Owen was sentenced to five years imprisonment, suspended after 18 months, no person holding a position in a corporation who is responsible for its corporate culture has been convicted.

In one of the most recent examples, Mastermyne was found guilty of industrial manslaughter and hit with a $7 million fine after a miner was fatally injured in an underground roof collapse. However, no individual officer was charged with industrial manslaughter.

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Cvetkovski explained that there have been a number of prosecutions under section 32 of the Work Health and Safety Act 2011. The “dime a dozen” section 32 comes into play when a person has failed to comply with a health and safety duty and that failure exposes an individual to a risk of death or serious injury or illness.

What is missing are prosecutions under section 31, which covers reckless conduct and is classified as a Category 1 Offence. Neither have there been many for section 34 C and D, both industrial manslaughter.

“I’m coming from some [legal] background, I’m not purely academic about this. I’ve done a lot of prosecutions where I have had the victim impact statements … and people have died. Both Neville Weston and I, we’re both curious that, well, these are serious matters, these are serious crimes, so why aren’t there section 31s – the reckless – and why aren’t there section 34 C’s and D’s. That’s the first question, I just simply don’t know the answer, but I am very curious from a regulatory perspective,” Cvetkovski said.

Queensland also has a “standalone” situation where, under section 34D, industrial manslaughter is brought against “senior officers”. The term is not defined under “any cognate piece of legislation”.

“Why must it now be a class of corporate citizen that must be a senior officer when, if you’re an officer, you’re an officer. They have the up-to-date knowledge, they’re supposed to guide corporate culture, so why is it a senior officer whose right for it in Queensland, and why is it an officer in another state potentially right for prosecution. It really is quite disjointed, in our opinion,” Cvetkovski said.

This then leads into concerns around general – and, at times, specific – deterrence, with Cvetkovski explaining that the legislation gaps bring into question “just how effective these instructions are against recidivism”, particularly if it’s just a fine.

“The other thing we are quite curious about is we see so many corporate citizens being prosecuted, especially under section 32, but you can count on one hand how many human individual citizens have been prosecuted at the pointy end of the law.

“One would have thought for deterrence that’s what you would do, because you wouldn’t want to spend one day in prison, let alone a few years or a couple of months,” Cvetkovski said.

Cvetkovski and Weston analysed the inconsistent approaches across jurisdictions, which their paper argued pose significant challenges for corporate compliance and have raised concerns regarding the equitable application of criminal sanctions.

The key difference appears to be the concept of negligence. For example, Queensland does not define or describe negligent conduct, and Western Australia does not use the terms “negligence” or “recklessness”. On the other hand, NSW uses the term “gross negligence”, which could be equated with criminal negligence, “or something else perhaps closer in proximity to recklessness”.

“There’s a lot of caselaw going back quite a few decades grappling with what it means for someone to have been found grossly negligent [compared to] someone just negligent in the criminal context,” Cvetkovski told Lawyers Weekly.

The table below sets out the “subtle” but key differences between fault elements across jurisdictions, prepared by Cvetkovski and Weston in Inconsistencies in Industrial Manslaughter Laws and Category 1 Reckless Offences in Australia: Same, Same – But Different?, published in the Australian Journal of Labour Law.

“It’s very interesting that we have this divergence, for want of a better word, and I think it’s because each state’s pretty much doing its own thing in this arena. That would be the short answer.

“The next question is: why are they different if we’re across Australia where corporations exist from one jurisdiction to another. It must be a curious for international investors and others to learn this strange fact,” Cvetkovski said.

He added that it would be “surprising” for international investors to learn through their lawyers that each state has its own work health and safety laws. For example, a certain crime could attract a period of imprisonment if found guilty in one state, whereas that same crime could result in a different sentencing outcome in the next state over.

Cvetkovski also quipped, “Oh, by the way, you have to be a senior officer in Queensland. What’s ‘senior officer’ mean?”

The lack of certainty poses a lot of challenges for legal practitioners, and particularly those advising companies with a national presence. Cvetkovski said it would take a “pretty brave lawyer” who could confidently say they “know exactly” what to do.

“I think we would all have plaintive cries [and] scream from the same podium because of the mere fact that the fault elements differ from one jurisdiction to another,” Cvetkovski said.

“A person has died at the workplace, that’s a pretty universal cry. That’s the type of submission you make, ‘a person has died’; and yet, when you dig deeper, where or how they would be prosecuted would clearly depend on the way in which that particular piece of drafting in that particular jurisdiction has been framed.”

Following on from their research, Cvetkovski and Weston have called for reforms to the industrial manslaughter laws. While there has been some “excellent work” done with various reviews, including the 2018 Boland Review – which made 34 key recommendations – Cvetkovski said the extent of the regulators’ appetite for comprehensive reform remains to be seen.

The reforms could focus on stronger criminal code consideration, it might be a unique work health and safety piece of law, or it could be seen in a broader socio-legal context. With respect to Queensland in particular, Cvetkovski said it could, for example, be an amendment to the Criminal Code Act 1899.

“The question is: is it working now? It is fair to say it isn’t. Then should we radically consider repositioning industrial manslaughter and ‘reckless’ and ‘gross negligence’ aspects of work health and safety within another arena?” Cvetkovski said.

“In terms of objective gravity and the ground that it breaches, these are right at the top of the calendar. It doesn’t get bigger than this. To say, ‘well, there hasn’t been such an egregious breach’, I would say [there has]: when I read the caselaw, there’s a lot of reference to ‘serious’ and ‘egregious’ and ‘this should never have happened’.

“People have died, so why is it then we have a number of section 32s, and why is it we don’t have a lot of section 31s and 34s. That’s the question.”