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Minerals Council caution on industrial manslaughter

industrial manslaughter proposed in Victoria
Industrial manslaughter legislation has been opposed by the Minerals Council

The Minerals Council of Australia has cautioned the Victorian Government on its’ proposed industrial manslaughter laws saying that the new laws will give rise to unintended consequences which impair, rather than enhance, health and safety outcomes at Australian workplaces.

Mineral Council of Australia (MCA) CEO Tania Constable says ‘the Victorian Government’s proposed laws will not contribute to general or specific deterrence or improvements in health and safety outcomes.  This must be the priority, not imposing oppressive and unnecessary criminal liability on selected individuals.’

The Victorian industrial manslaughter promise

The statements by the MCA (issued last week) are designed to shine a light on impending law changes in Victoria. In the lead up to the Victorian State election in May 2018, Premier Daniel Andrews made a commitment to voters to introduce manslaughter as an offence under the Victorian Occupational Health and Safety Act 2004.

Under the proposed changes, Victorian employers may face the highest penalties in Australia. For guilty finding, employers may face fines of up to 100,000 penalty units, currently over $16 million. Queensland’s current regime provides penalties of up to $10 million.

The Andrew’s Government changes also provide imprisonment options for individuals. An individual who causes a work-related death may face imprisonment for up to 20 years.

In May 2018, Andrew’s received a standing ovation at the Victorian Labor conference for his proposed changes. There’s a clear preference within the Australian Labor movement that punishment for grossly negligent work practices provides retribution for the families affected by negligent acts. Not all agree.

What about evidence-based decision making?

The requirement for evidence-based decisions in the health & safety profession has been promulgated and widely accepted for many years, yet…the Andrew’s Government basis for introduction is apparently lacking in evidence that the legislation will actually deter potential offenders.  No one really knows that the introduction of laws of this ilk will actually work and subsequently become a deterrent for those in the accident chain of events.

The Andrew’s Government’s lack of evidence of other implications of the introduction of the law may also prove challenging as the laws emerge. The concern for some in the industry is that quality candidates for management and supervisory roles may shy away because of the substantial risks involved. Negligence is a substantial legal term and proving it may be challenging and costly in court as most persons charged for health & safety offences come to the court as first-time offenders.

Potentially the Victorian Government has responded to a symbolic and highly emotional issue without adequately reviewing the available Australian evidence?

The Australian Capital Territory (ACT) introduced industrial manslaughter legislation in 2004 under the Crimes (Industrial Manslaughter) Amendment Act 2003. The ACT law seeks to prove that a corporate culture existed within an organisation that directed, encouraged, tolerated or led to noncompliance with the law, whereupon the fatal event occurred.

After 14 years in operation, there have been no successful prosecutions in the ACT. In fact, not one case has proceeded thus far.

Safety prevention strategies may be more cost-effective

Enhancing government safety prevention strategies may well be more cost-effective than drawn-out legal proceeding that, in probability, will not deliver an effective outcome following a tragedy. The cost to prosecute, enforce and manage a white collar offender in a complex and sub-standard prison system might well be spent on adequately funding departments which regulate safety.

Irrespective of the The MCA’s position is clear. It says it will ‘continue to advocate for continuous improvement, where all parties work together in support of a safety culture based on trust and openness, not an adversarial legal approach based on a blame culture.’

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AMSJ April 2022