Today’s post is not a direct question, but a post on LinkedIN where Australian Emergency Law was mentioned. I’m not linking to the post nor identifying the author as I don’t want to promote their commercial interest in the subject area.

The topic is proposed commonwealth Industrial manslaughter laws to be introduced into the Work Health and Safety Act 2011 (Cth) by the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.  If passed, the WHS Act will have a new s 30A that says:

30A   Industrial manslaughter

(1)        A person commits an offence if:

(a)        the person is:

(i)         a person conducting a business or undertaking; or

(ii)        an officer of a person conducting a business or undertaking; and

(b)       the person has a health and safety duty; and

(c)        the person intentionally engages in conduct; and

(d)       the conduct breaches the health and safety duty; and

(e)        the conduct causes the death of an individual; and

(f)        the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.

Penalty:

(a)        In the case of an offence committed by an individual—25 years imprisonment.

(b)       In the case of an offence committed by a body corporate—$18,000,000.

When conduct causes death

(2)        For the purposes of subsection (1), a person’s conduct causes a death if the conduct substantially contributes to the death.…

This adds a new offence to the Act. There are already three offences –

  • Failure to comply with an OHS duty (Category 3 offence) (s 33);
  • Failure to comply with OHS duty exposing a person to a risk of death or serious injury (Category 2 offence) (s 32) and
  • Recklessly exposing a person to risk of death or serious injury (Category 1 offence) (s 31).

The maximum penalty for a Category 1 offence for an individual is a fine of $600 000 or 5 years imprisonment or both. For a corporation the maximum penalty is a fine of $3 000 000.

The post that asked for my attention referred to an article published in the Australian that I cannot access behind their paywall but the URL is https://www.theaustralian.com.au/nation/politics/manslaughter-laws-for-federal-public-servants/news-story/50b3dcae38569b3342203c0ed135cf59. The author of the post says:

Under these federal manslaughter laws, Australian Federal departments/agencies and even the military Heads of Department (or more than likely subordinates at some senior level) can be held personally accountable should a death occur due to failures in WHS legislative requirements to protect employees.

What does this mean??? Whilst the article refers to labour type industries, it opens senior commanders/managers within Federal Law Enforcement at a minimum as I understand it, to ensure their personnel are equipped and trained or have suitable controls in place to mitigate the workplace hazard/risk to ALARP.

So……. As we have been saying for 3 years …, how can you issue a police officer a firearm or send them to high-risk situations yet only provide a not fit-for-purpose AQF first aid course and no immediate first aid kit (IFAK) ‘individually’ to mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge???

Australian Federal Police Australian Border Force commanders take heed, I would believe you are on notice without the funding to support the upskills in training. …

If you are in Public Safety management or Emergency Law I’m keen to hear your thoughts??

The answer is that the industrial manslaughter laws add a new level of offence but the idea that PCBUs and officers of PCBUs can be held ‘personally accountable’ is nothing new.

But the Act does not say an offence is committed ‘should a death occur’. The duty under WHS law is to take reasonable steps to reduce the risk to workers. What is reasonably practicable requires consideration of  

(a)  the likelihood of the hazard or the risk concerned occurring; and

(b)  the degree of harm that might result from the hazard or the risk; and

(c)  what the person concerned knows, or ought reasonably to know, about:

(i)  the hazard or the risk; and

(ii)  ways of eliminating or minimising the risk; and

(d)  the availability and suitability of ways to eliminate or minimise the risk; and

(e)  after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

There are many ways to reduce risk but not all are practicable.  Police could ‘mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge’ by not equipping police with firearms at all and not sending them into high risk areas. That would reduce the risk of people getting shot by police but would not be practicable and would increase other risks.

There are costs and benefits of every action. Increase training for police and more kit to carry comes at a cost and it has to be asked ‘what will it add?’ If the concern is for offenders who might be shot, the police are unlikely to owe a WHS duty to them given that they are given firearms for the very purpose of, if necessary, shooting offenders.  The firearm is itself a risk management tool where the risk is a risk to life of the officer or others posed by the alleged offender.  And in most cases where these events are happening police will be backed up by paramedics so what real value would extra kit and training provide?

To be guilty of this offence the officer (as the term is used in the WHS Act, not a police officer) would have to ‘intentionally engage in conduct’ that is a breach of an WHS duty and that causes a death.  If police have done risk assessments and engaged in consultation with their workers to determine the on balance best response to the risk of shooting someone then they may have met their duty even if someone else thinks they should have come to a different conclusion. One could insist that all police train as paramedics but no-one would think that was a serious option, so equally it may not, for many reasons, be a reasonable option to train police beyond a standard first aid course which is meant to provide basic life support skills pending the arrival of medical care.  And it may be that this training is not needed because the police concern in a ‘high risk’ environment is to try and secure the situation from the threat posed by the alleged offender not necessarily protect the offender from police.

I cannot see that the new laws would make any difference to Australian Federal Police and Australian Border Force commanders. If Australian Federal Police and Australian Border Force commanders could be liable under the new laws because of the state of training, they could also be liable under the old laws but no-one has been prosecuted in the circumstances described.  And just because a company that sells ‘immediate first aid kits’ and higher level training thinks the AFP and ABF should buy their product does not mean they should.

Industrial manslaughter laws have been around in some states for some time. The first individual prosecuted in Queensland ran his own business so was the PCBU. He used a forklift without a licence, to lift a load that exceeded the forklift’s capacity. The load fell on a worker, killing him. This sort of deliberate conduct is quite different to a decision made about the type of equipment to issue workers particularly if the PCBU can point to processes that are in place to identify and manage risk.  Even if there is still a residual risk, it does not mean that WHS duties have not been met.

Looking at the elements of the offence

Another way to look at it is to look at the offence. Assume there is a Deputy Commissioner (Training) and they fit the definition of an ‘officer’ of the PCBU so 1(a)(ii) is satisfied. It is axiomatic that such a person would have a health and safety duty (s 1(b)).  Assume they say ‘we are not going to have higher level training and individual immediate first aid kits’.  Is the decision to decide not to do something ‘intentional conduct’? arguably not, but let us assume for the sake of the argument that it is so s 1(c) is satisfied. Does that breach a health and safety duty? Without much more evidence about the cost/benefit of the proposal it is impossible to say. If the Deputy Commissioner has considered the factors set out in the Act (and quoted above) then probably not even if someone else, who considered the same factors, may have come to a different decision. 

But if there has been no risk assessment regarding the first aid needs as required by the Act and its regulations and the First Aid Code of Practice then perhaps yes.

An offender is shot by police either intentionally or even ‘accidentally through negligent discharge’. They die. Did the absence of training and the kit cause, or substantially contribute to the death?  That would require proof, beyond reasonable doubt, that the presence of the training and the kit would have made a difference. That would require proof that officers would have used it when they may well have had other matters on their mind like securing the safety of others, and that the injuries were survivable.

In the Lindt Café siege police fired 22 shots at the terrorist aiming at his chest and head (Inquest into the Deaths arising from the Lindt Café Siege, p. 195).  No first aid training or kit was going to make a difference; their aim was to make sure he was no longer a threat and that involved the quite reasonable application of fatal force.  Not all sieges or events involving firearms will be that intense but where a police officer has drawn his or her firearm it must be because they believe it may be necessary to discharge it and if it is necessary to discharge it is necessary to inflict potential and perhaps even intentionally fatal wounds.   If the person is not killed there may be a duty to render assistance, but it may not be immediate eg the scene has to be secured, others rescued and police assured there is no ongoing threat.

The idea behind first aid is that it can make a difference and lives can be saved, but proving – beyond reasonable doubt – that in any particular case this particular life would have been saved when they have obviously life threatening injuries – in this case gunshot wounds – would I suggest be difficult if not impossible.   If the person was shot ‘accidentally through negligent discharge’ issues about training in the use of firearms would take up much more interest than a first aid kit and if it could be proved there was a failure there, it would be much easier to prove that it was that failure that led to the death charged.

Simply looking at what needs to be proved to establish industrial manslaughter demonstrates that ‘Australian Federal Police Australian Border Force commanders’ need not consider that failure to immediately change the level of first aid training and equipment issued to police will expose them to risk of prosecution for this particular offence.

Conclusion

The industrial manslaughter does not create a new situation of personal responsibility. It adds a higher-level offence – above the Category 1, 2 and 3 offences already in the Act. For all of those offences a PCBU and an officer of a PCBU can be personally liable for failure to meet their OHS duties.  But meeting an OHS duty is not proved just because there is some harm or injury (see Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1).  If issuing ‘a police officer a firearm or send[ing] them to high-risk situations yet only provide a not fit-for-purpose AQF first aid course and no immediate first aid kit (IFAK) … to mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge’ is a breach of an WHS duty then it’s a breach now. And if it’s not a breach now, it won’t be a breach if these new laws come into force. The new offence won’t change what are WHS duties, how those duties are to be met or the fact that an officer of a PCBU could be personally liable for a breach of those duties.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.