Background
The
Australian Capital Territory (ACT) has enacted new legislation
in 2002 - the Crimes (Industrial Manslaughter) Amendment
Bill 2003 - that imposes new duties upon ‘senior
officers’ of companies and government bodies, and
allows for their prosecution if they negligently or
recklessly cause the death of a worker with a maximum
penalty of 25 years imprisonment if they are convicted.
It also allows for the organisation to be prosecuted
and creates innovative sentences that can be imposed
by the court.
The
legislation creates two new offences - one relating
to the organisation ("Industrial manslaughter
- employer offence") and another relating to
'senior officers'. They both follow a very similar
model.
It should be noted that the offence only relates to
a death of a worker, not a member of the public (which
was also the same situation in the State of Victoria's
failed legislation).
When
there has been a death at work, these offences in
effect replace both the general offence of manslaughter
that currently exists and the requirement that a directing
mind and will of a company is prosecuted in order
to prosecute the company.
The
Crimes (Industrial Manslaughter) Amendment Act 2003
did not address the issue of attributing criminal
liability to an employer – as this issue had
been addressed with the enactment of Part 2.5 of the
Criminal Code Act 2002 (ACT) (which applied the Criminal
Code Act 1995 (Cth) into ACT law: Click
here to read about this). It was because those
provisions did not apply to ‘pre-2003’ offences,
that it was necessary to re-enact new manslaughter
provisions. It is important to note however that the
corporate criminal liability provisions of the Criminal
Code 2002 (ACT) relate only to corporations, whereas
the the Crimes (Industrial Manslaughter) Amendment
Bill 2003 covers ‘employers’, which
would include ‘employers’ who are not corporations.
It is therefore not clear what principles would apply
to non-corporate employers who were prosecuted for
the manslaughter offences
Below
is a summary of the new legislation. However, you
can download the full Act and Explanatory Briefing
by clicking below.
The
Offences
The offence relating to the employer states that:
| An
employer commits an offence if— |
| (a) |
a
worker of the employer—
| (i) |
dies
in the course of employment by, or providing
services to, or in relation to, the employer |
| (ii) |
is
injured in the course of employment by,
or providing services to, or in relation
to, the employer and later dies |
|
| (b) |
the
employer’s conduct causes the death of the
worker; and |
| (c) |
the employer is—
| (i) |
reckless
about causing serious harm to the worker,
or any other worker of the employer, by
the conduct; |
| (ii) |
negligent
about causing the death of the worker, or
any other worker of the employer, by the
conduct. |
|
There
are no restrictions on what organisations can be an
employer - and therefore government bodies can also
be prosecuted for the offence.
If
the person prosecuted was a corporation, then Part
2.5 of the Criminal Code Act 2002 applies, which itself
adopts the corporate responsibility provisions of
the Criminal Code Act 1995 (Cth) as explained above.
The
'senior officer' offence states:
| "A
senior officer of an employer commits an offence
if— |
| (a) |
a
worker of the employer—
| (i) |
dies
in the course of employment by, or providing
services to, or in relation to, the employer |
| (ii) |
is
injured in the course of employment by,
or providing services to, or in relation
to, the employer and later dies |
|
| (b) |
the
senior officer’s conduct causes the death
of the worker; and |
| (c) |
the senior is—
| (i) |
reckless
about causing serious harm to the worker,
or any other worker of the employer, by
the conduct; |
| (ii) |
negligent
about causing the death of the worker, or
any other worker of the employer, by the
conduct." |
|
According
to section 20 (1) of the Criminal Code 2002 (ACT)
a person (not including a corporation) would be reckless
in their conduct that leads to an industrial fatality
if:
| (a) |
they were aware of a substantial risk that serious
harm would result to the worker; and |
| (b)
|
having
regard to the circumstances known to them, it
was unjustifiable to take that risk." |
The
question whether taking a risk is unjustifiable would
be a question of fact (section 20 (3)).
According
to section 21 of the Criminal Code 2002 (ACT), a person
would be negligent in relation to causing an industrial
fatality if ‘the person’s conduct merits
criminal punishment for the offence because it involves
–:
| (a) |
such
a great falling short of the standard of care
that a reasonable person would exercise in the
circumstances; and |
| (b)
|
such
a high risk that death of a worker would result.’
|
An
“officer” of a company includes directors
and those who “make or participate in making
decisions that affect the whole or a substantial part
of the business of the corporation.”
A
senior officer, of an employer is defined as:
| (a) |
for
an employer that is a government, or an entity
so far as it is a government entity—any of
the following:
| (i) |
a
Minister in relation to the government or
government
entity; |
| (ii) |
a
person occupying a chief executive officer
position (however described) in relation
to the government or government entity; |
| (iii) |
a
person occupying an executive position (however
described) in relation to the government
or government entity who makes, or takes
part in making, decisions affecting all,
or a substantial part, of the functions
of the government or government entity;
|
|
| (b) |
for
an employer that is another corporation (including
a corporation so far as it is not a government
entity)—an officer of the corporation; or
|
| (c) |
or
an employer that is another entity—any of
the following:
| (i) |
a
person occupying an executive position (however
described) in relation to the entity who
makes, or takes part in making, decisions
affecting all, or a substantial part, of
the functions of the entity; |
| (ii) |
a
person who would be an officer of the entity
if the entity were a corporation. |
|
The
New Duty
The Act imposes a duty upon both an "employer"
(i.e. the organisation) and individual "senior
officers" to:
"avoid
or prevent danger to the life, safety or health
of a worker or the employer”
It
states that either an "omission" of an employer
or that of a senior officer
"can
be conduct for this part if it is an omission to
perform the duty to avoid or prevent danger to the
life, safety or health of a worker of the employer
if the danger arises from—
| (a) |
an
act of the employer/senior officer; |
| (b) |
anything
in the employer’s/senior officer's possession
or control; or |
| (c) |
any
undertaking of the employer/senior officer." |
Sentencing
The Act also contains provisions for the court to
impose innovative penalties - including what are known
as 'Adverse Publicity Orders' or 'Community Service
Orders'
Paragraph
2 of section 49E of the Act states that when an organisation
has been convicted:
In
addition to or instead of any other penalty the
court may impose on the corporation, the court
may order the corporation to do one or more of
the following:
| (a) |
take
any action stated by the court to publicise—
| (i) |
the
offence; and |
| (ii) |
the
deaths or serious injuries or other
consequences resulting from or related
to the conduct from which the offence
arose; and |
| (iii) |
any
penalties imposed, or other orders
made, because of the offence; |
|
| (b) |
take
any action stated by the court to notify
one or more stated people of the matters
mentioned in paragraph (a); |
| (c) |
do
stated things or establish or carry out
a stated project for the public benefit
even if the project is unrelated to the
offence. |
|
The
examples that the Act itself gives for paragraph (a)
is to "advertise on television or in a daily
newspaper" and the example, given for (b) is
to "publish a notice in an annual report or distribute
a notice to shareholders of the corporation"
and an example given for paragraph (c) is to "develop
and operate a community service"
Para 49E of the Act goes on to state that:
| (a) |
In
making the order, the court may state a period
within which the action must be taken, the thing
must be done or the project must be established
or carried out, and may also impose any other
requirement that it considers necessary or desirable
for enforcement of the order or to make the order
effective. |
| (b) |
The
total cost to the corporation of compliance with
an order or orders under subsection (2) in relation
to a single offence must not be more than $5 000
000 (including any fine imposed for the offence).
|
| (c) |
If
the court decides to make an order under subsection
(2), it must, in deciding the kind of order, take
into account, as far as practicable, the financial
circumstances of the corporation and the nature
of the burden that compliance with the order will
impose. |
| (d) |
The
court is not prevented from making an order under
subsection (2) only because it has been unable
to find out the financial circumstances of the
corporation. |
| (e) |
If
a corporation fails, without reasonable excuse,
to comply with an order under subsection (2) (a)
or (b) within the stated period (if any) the court
may, on application by the commissioner for OH&S,
by order authorise the commissioner—
| (a)
|
to
do anything that is necessary or convenient
to carry out any action that remains to
be done under the order and that it is still
practicable to do; and |
| (b) |
to
publicise the failure of the corporation
to comply with the order. |
|
| (f) |
If
the court makes an order under subsection (7),
the commissioner must comply with the order. |
| (g) |
Subsection
(7) does not prevent contempt of court proceedings
from being started or continued against a corporation
that has failed to comply with an order under
this section. |
Definition
of Recklessness
Section 15, Criminal Code Act, Australian Capital
Territories,
| (1) |
A
person is reckless in relation to a circumstance
if--
| (a) |
the
person is aware of a substantial risk that
the circumstance exists or will exist; and |
| (b) |
having
regard to the circumstances known to the
person, it is unjustifiable to take the
risk |
|
| (2) |
A
person is reckless in relation to a result if--
| (a) |
the
person is aware of a substantial risk that
the result will happen; and |
| (b) |
having
regard to the circumstances known to the
person, it is unjustifiable to take the
risk |
|
| (3). |
The
question whether taking a risk is unjustifiable
is a question of fact. |
| (4) |
If
recklessness is a fault element for a physical
element of an offence, proof of intention, knowledge
or recklessness satisfies the fault element. |
Back
Definition
of Negligence
Section 15, Criminal Code Act, Australian Capital
Territories,
| A
person is negligent in relation to a physical
element of an offence if the person's conduct
merits criminal punishment for the offence because
it involves-- |
| (a) |
such
a great falling short of the standard of care
that a reasonable person would exercise in the
circumstances; and
|
| (b) |
such
a high risk that the physical element exists or
will exist. |
Back
|
