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Every
year in Queensland, between 60 and 100 people die
in workplace incidents. In 2000, the Queensland Government
published a discussion paper proposing a new offence
of "dangerous Industrial Conduct (Causing Death
or Grievous Bodily Harm)".
This
is summarised below, but if you would like to download
the paper, click
here
Existing
Criminal Offences
Under the existing Criminal Code, there are a number
of offences that a company or individual could be
prosecuted for in relation to a work-related death
or serious injury. These are:
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Manslaughter
(section 303)
This is defined as any unlawful killing which
does not constitute murder. This offence can
be committed by criminal negligence. According
to the discussion document:
"In
such cases, it is sufficient if the prosecution
shows that the act which caused the death
was done by the accused person consciously
and voluntarily, without any intention of
causing death or grievous bodily harm but
in circumstances which involved such a great
falling short of the standard of care which
a reasonable person would have exercised and
which involved such a high risk that death
or grievous bodily harm would follow that
the doing of the act merited criminal punishment"
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Grievous
Bodily Harm (section 320)
This section provides that
“Any
person who unlawfully does grievous bodily
harm to another is guilty of a crime and is
liable to imprisonment for 14 years”.
Criminal
negligence resulting in grievous bodily harm
would be dealt with under this section
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Negligent
acts causing harm (section 328)
This section provides that:
“any
person who unlawfully does any act or omits
to do any act which it is the person’s
duty to do, by which act or omission bodily
harm is actually caused to any person, is
guilty of a misdemeanor, and is liable to
imprisonment for two years”.
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Current
Legal Duties
It is notable that the current criminal code imposes
legal duties upon individuals - failures of which
could constitute the criminal negligence required
to prove the above offences. The duties are:
Section
288 – Duty of Person doing Dangerous Acts
“it is the duty of every person, who, except
in the case of necessity, undertakes to … do
any … lawful act which is or may be dangerous
to human life or health, to have reasonable skill
and to use reasonable care in doing such act, and
the person is held to have caused any consequences
which result to the life or health of any person
by reason of any omission to observe or perform
that duty.”
Section 289 – Duty of person in charge of
dangerous things
“it is the duty of every person who has in
the person’s charge or under the person’s
control anything, whether living or inanimate, and
whether moving or stationary, of such a nature that,
in the absence of care or precaution in its use
or management, the life, safety, or health, of any
person may be endangered, to use reasonable care
and take reasonable precautions to avoid such danger,
and the person is held to have caused any consequences
which result to the life or health of any person
by reason of any omission to perform that duty.”
In
order for a company to commit these offences it is
necessary under existing Queensland law for a "directing
mind and will" of the company to be prosecuted
(i.e. the identification test).
The
Discussion Paper - the proposed offence
The discussion paper proposes the creation of a new
offence with a new principle of attribution - which
is based substantially on the Federal Government's
Criminal Code Act 1995 (to read about this, click
here).
Under
the proposed offence, an individual would be liable
for the offence of “dangerous industrial conduct”
where that person behaves dangerously in a workplace
(that is, in a way that was unlawful or fell far below
what would reasonably be expected), resulting in death
or grievous bodily harm.
The Discussion Paper - attributing responsibility
to the company
Apart from individual liability, it is proposed that
a “corporation” and its “management”
will be criminally responsible for intentional, reckless
or negligent behaviour that results in death or injury
to persons affected by the activities of the corporation
(that is, employees and members of the public) where
| 1. |
the
behaviour was dangerous, in that it was unlawful
or otherwise fell far below what would reasonably
be expected (within the current definition of
criminal negligence) |
| 2. |
the
behaviour was that of an officer, agent or employee
of the corporation acting within the actual or
apparent scope of their employment or within their
actual or apparent authority. |
| 3. |
where
the behaviour was intentional or reckless, the
behaviour is to be attributed to the corporation
if it expressly, tacitly or impliedly authorised
or permitted the behaviour. Such authorisation
or permission can be established by proving that
| a. |
the
corporation’s board of directors intentionally
or recklessly carried out the relevant behaviour
or expressly, tacitly or impliedly authorised
or permitted the behaviour. |
| b. |
that
a high managerial agent of the corporation
intentionally or recklessly engaged in the
relevant behaviour, or expressly, tacitly
or impliedly authorised or permitted the
behaviour, unless the corporation can prove
that it exercised due diligence to prevent
the behaviour, or the authorisation or permission. |
| c. |
that
a corporate culture existed within the corporation
that directed, encouraged, tolerated or
led to the behaviour. |
| d. |
that
the corporation failed to create and maintain
a corporate culture that required the prevention
of the behaviour. |
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| 4. |
Where
the behaviour was negligent, the conduct of any
number of the corporation’s employees, agents
or officers may be aggregated. Negligence can
be evidenced by the fact that the behaviour was
substantially attributable to inadequate corporate
management, control or supervision of the behaviour
of one or more of its employees, agents or officers;
or failure to provide adequate systems for conveying
relevant information to relevant persons in the
corporation. |
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