I have written previously on what I believe the limits are of industrial manslaughter specifically, and prosecutions generally. But in this post, I want question – in the context of Western Australia – what issue is industrial manslaughter trying to address.
Western Australia has gone through several consultation periods around health and safety legislation as part of "modernising" its legislation to align with the Work Health and Safety (or harmonised) regime adopted across most of Australia. At no point did this include a discussion or consultation about industrial manslaughter, which only came onto the agenda as a fait accompli with recent announcements by the WA labour government at their annual state conference this year (2019).
But what is it that industrial manslaughter laws are trying to address?
The prosecution history under occupational safety and legislation in Western Australia is a little bit difficult to piece together, and I accept that some of what I am about to cite might be off by a handful of cases either way, but the history of prosecutions in Western Australia suggests very strongly that either there is no need for industrial manslaughter provisions, or they will never be used in practice.
Western Australia introduced an offence of "gross negligence" under occupational safety and health legislation in 2004. This is the most serious offence under existing health and safety legislation, and from October 2018 it attracted a penalty of $2.7 million for a first offence. Prior to that the maximum penalty was only $500,000.
My point in this article is not to argue about the quantum of penalty, rather the use of the provision.
Based on the information I can gather, since 2004 there have been 241 workplace fatalities in Western Australia. There has not been a single instance of a prosecution for gross negligence.
If there has not been a workplace fatality in Western Australia for the last 15 years which justifies a gross negligence offence, what will it actually take – what level of offence has to occur – which would compel the authorities to pursue an industrial manslaughter charge? And given that a gross negligence charge has never been pursued, how can we say it is not effective?
Criminal penalties are only as effective as a regulator's willingness to pursue them. Perhaps a more important question for advocates of criminal punishment in health and safety to consider is not the level of penalty or the type of offence, but rather the willingness and capacity of a regulator to pursue them – might that be the problem?
One of the other elements of industrial manslaughter is that it requires causation. In other words, the prosecution has to prove that the breach of occupational safety and health legislation by the defendant "caused" the fatality. Most charges under health and safety legislation do not rely on causation, and with good reason – it can be difficult to prove.
For example, the recent prosecution of Valmont (WA) Pty Ltd has been cited as a case which demonstrates the need for industrial manslaughter laws. However, the company was never charged with causing the fatality, much less being grossly negligent. It is impossible to believe in those circumstances they would have been prosecuted under proposed industrial manslaughter provisions.
Again, I am open to correction on my numbers, but on the figures I have been able to locate, since about August 2006 there have been 207 workplace fatalities in Western Australia and only 14 (call it 7%) of those cases involved prosecution where it was proved the defendant caused the death.
If such a small number of cases can prove a causal relationship between the breach and the fatality, and if no case justifies a charge of gross negligence what is the point of industrial manslaughter provisions?
It seems, at best, the likely use of these provisions will be so rare – even assuming a prosecution is successful – as to have no influence whatsoever on the consciousness, let alone the practices, of businesses when it comes to health and safety.
I have written before about my concerns around prosecutions for health and safety breaches, and that they are more likely to undermine than improve safety performance. In industrial manslaughter I think we see another lazy intellectual vacuum which will do nothing to improve health and safety outcomes in Western Australia, and in all likelihood undermine them further.