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Health and Safety Update – June 2015

Home Insights Health and Safety Update – June 2015

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Contributed by: Richard McIlraith, Malcolm Crotty, Kylie Dunn, Adrian Olney and Mark Campbell.

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Published on: June 29, 2015

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Corporate manslaughter

The Justice Minister has recently announced that she favours the introduction of a corporate manslaughter offence, in the Health and Safety reform legislation. The Minister for Workplace Relations and Safety has said that he is considering the matter, but has noted that there are already sanctions in the bill and that if a death results from a breach, that could be taken into account at sentencing.

Those issues go to the heart of the matter – what exactly is corporate manslaughter, and how would it work?

The Crimes Act presently defines homicide as the killing of one human being by another. As manslaughter is a species of culpable homicide, it cannot be committed by a body corporate. However, even if corporate manslaughter is made an offence, it would not necessarily address perceived problems with the current law. 

A difficulty with prosecuting corporate offences is the requirement that the offence be committed by an individual who can be considered the “directing mind” of the company. In the case of large, complex companies, there will seldom be a single identifiable person in that position who also has a sufficient connection to the offence itself. Accordingly, success in prosecuting corporate offences is often limited to smaller operations where such a single person can be identified.

This issue has been exemplified in the United Kingdom, where there has been a dearth of successful prosecutions, despite the availability of corporate manslaughter offences.

Take for instance R v P&O European Ferries (Dover) Ltd, a negligent manslaughter case brought in the United Kingdom after a ferry, the Herald of Free Enterprise, set sail with the bow doors open and capsized, resulting in 193 deaths. Despite the findings in a previous judicial inquiry that the company was infected at all levels with a “disease of sloppiness” the prosecution failed because there was no single individual within the company who could be identified as having committed the offence. Contrast that with the case of R v Kite and OLL Limited, a prosecution following a kayaking disaster in which four teenagers died. In that case a small company was liable following the conviction of the managing director who was clearly the directing mind.

Cases such as the above demonstrate that, without more, a corporate manslaughter offence may be limited to reflecting the culpability of individuals who are already personally liable. If the point of a corporate manslaughter offence is to attribute liability for institutional failings, rather than to replicate the liability of individuals, any corporate manslaughter offence would need to provide a basis for:

  • aggregating the elements of the offence, albeit committed by different individuals across an organisation; and
  • attributing those aggregated acts to the corporate entity notwithstanding a lack of direct involvement by senior executives who might otherwise be said to be the “directing minds” of the company.

In 2007 the United Kingdom introduced a specific corporate manslaughter offence based on systemic or management failures. However, a significant increase in successful prosecutions of large corporations is yet to be observed (possibly because of the requirement that the failures be attributable to “senior management”).

The Australian Capital Territory has also introduced industrial manslaughter legislation (in 2003), but due to its limited size and lack of heavy industry, the ACT may not be fertile ground for prosecutions.  

In 2013, the Independent Taskforce on Workplace Health and Safety recommended extending the existing manslaughter offence (ie pursuant to the Crimes Act) to corporations and revising the corporate liability framework that applies to all offences. The Taskforce specifically rejected the idea of a standalone offence of corporate manslaughter with a bespoke liability framework (such as that adopted in the United Kingdom), as that would create inconsistency in the application of corporate liability as between manslaughter and other offences against the person.  

While the form and content of the new law remain to be seen, careful attention will need to be paid to the mechanism by which corporate liability is attributed if the offence is to do more than provide a corporate reflection of existing personal liability.

There is also a question as to the need for a corporate manslaughter provision in light of the relatively severe punishments already contemplated in the draft Health and Safety Reform Bill (a fine of up to $3 million for reckless conduct in respect of health and safety duties).

All of the above can be considered more fully in light of the actual offence if and when it is incorporated into the bill – watch this space.


 

 

This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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