Industrial Manslaughter in Australia

Industrial manslaughter under section 34C of the WHS Act 2011 (NSW) requires proof of three elements. First, the accused must be a PCBU or an officer of a PCBU. Second, the PCBU or officer must have engaged in conduct that constituted a negligent breach of a health and safety duty owed under the Act. Third, that conduct must have caused the death of a person to whom the duty was owed. The standard of negligence is drawn from the criminal law — the prosecution must prove that the conduct fell so far below the standard of care that a reasonable person in the same position would have exercised that it merits criminal sanction. This is a higher threshold than the civil negligence standard but lower than the recklessness required for Category 1 offences. The offence can apply to individual officers, not just the corporate entity. This means directors, partners, and senior managers face personal criminal liability for workplace deaths caused by negligent safety management. The conduct does not need to be a single act — it can be a pattern of omissions, such as systematically failing to implement safety systems, ignoring hazard reports, or failing to allocate adequate resources to safety.

Maximum penalties for industrial manslaughter vary across Australian jurisdictions. New South Wales, which introduced the offence through amendments to the WHS Act 2011, sets the corporate maximum at $20,000,000 and the individual maximum at 25 years' imprisonment. Queensland enacted industrial manslaughter in 2017 as part of the Work Health and Safety and Other Legislation Amendment Act, with a corporate maximum of $10,036,350 and individual imprisonment of up to 20 years. Victoria's provision, introduced under the Workplace Safety Legislation and Other Matters Amendment Act 2023, carries a corporate maximum of $18,271,400 and 25 years' imprisonment for individuals. The Australian Capital Territory applies 20 years' imprisonment for individuals. Western Australia's Work Health and Safety Act 2020 sets a corporate maximum of $5,000,000 and 20 years' imprisonment. The Northern Territory aligns with the model Act provisions. South Australia and Tasmania have not yet enacted standalone industrial manslaughter offences, though workplace deaths in those states can still be prosecuted under Category 1 provisions or general criminal law.

The primary defence available to officers charged with industrial manslaughter is the exercise of due diligence under section 27 of the WHS Act. Due diligence requires officers to take reasonable steps to acquire and maintain current knowledge of WHS matters, understand the nature of operations and associated hazards, ensure appropriate resources and processes are available, ensure the PCBU has and uses processes for receiving and responding to incident information, and verify the provision and use of those resources and processes. In practical terms, an officer who can demonstrate that they actively participated in safety governance, reviewed incident reports, allocated adequate safety budgets, ensured competent safety personnel were employed, and responded promptly to identified hazards will have a strong due diligence defence. An officer who delegated all safety responsibilities to a safety manager and never reviewed safety performance data will struggle to establish due diligence. EHS Atlas provides officer dashboards that document engagement with safety governance, creating a contemporaneous record of due diligence activities.

Industrial manslaughter prosecutions are still relatively rare in Australia due to the high evidentiary threshold, but investigations are becoming more common. Queensland has pursued several industrial manslaughter charges since 2017, with cases proceeding through the courts over multi-year timeframes. Victoria's WorkSafe commenced investigations under the new provisions following their commencement in 2023. New South Wales has indicated that SafeWork NSW and the NSW Police will jointly investigate potential industrial manslaughter cases, with the Director of Public Prosecutions making charging decisions. The investigation process for industrial manslaughter is significantly more intensive than for Category 1 or 2 offences. It typically involves forensic analysis of safety management systems, interviews with senior management and directors, review of board minutes and safety committee records, analysis of previous incident reports and corrective actions, and examination of safety budgets and resource allocation decisions. Businesses should understand that industrial manslaughter investigations can commence months or years after a fatality and that document preservation obligations apply immediately upon a workplace death.