Industrial manslaughter laws finally pass NSW Parliament

Today Abigail spoke on a bill to finally criminalise industrial manslaughter in NSW. This is decades in the making, and something the Greens have championed from day one. 

Watch Abigail's speech in Parliament: 

 

Transcript:

On behalf of The Greens, I indicate our strongest support and endorsement for the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024. The Greens have long supported the criminalisation of industrial manslaughter. The fundamental principle is that there should be no distinction between killing somebody at work and killing somebody in a non‑work‑related place. This is core work for The Greens. I am very pleased to stand in this Chamber today as The Greens spokesperson for work health and safety as the Parliament finally passes this long‑awaited legislation.

This legislation has been campaigned on for many years by many people. In particular, I acknowledge the long and strong work and advocacy of the Construction and General Division of the CFMEU. I also acknowledge my colleague Senator David Shoebridge, who remains a fierce advocate for workers. He worked diligently while he was a member of this House to bring us closer to the moment we are on the cusp of now. The history of industrial manslaughter legislation in this State has been filled with fits and starts. We almost got over the line in 2021, when this House passed a version of an industrial manslaughter bill brought on by the Hon. Adam Searle, only for it to get trapped and prevented from being brought on in the other place by a recalcitrant Liberal‑Nationals Coalition. That is a shameful stain on the former Government.

But we can go back further. Some 20 years ago in this Chamber another former Greens member—and, frankly, icon—Lee Rhiannon, introduced the Crimes Amendment (Industrial Manslaughter) Bill 2004. This followed the terrible death of 16‑year‑old apprentice roof plumber Joel Exner, who died on his third day on the job as a roof plumber at a construction site in Western Sydney after falling 12 metres to his death. The safety mesh that should have prevented his fall was not properly secured. His employer was fined just $20,000. That is shameful. This terrible incident is widely recognised as having kicked off the public campaign to reduce deaths in the workplace and to hold employers accountable. To reiterate the point that this is core Greens work, the mantle of Lee's tireless advocacy in this space was then picked up by David Shoebridge. I am so thrilled to see New South Wales finally—belatedly, limpingly but also proudly—deliver this important piece of legislation.

Of course, in 2004 Lee was tragically unsuccessful in having her bill passed—and it was tragic. We have to wonder how many lives might not have been lost if employers had to take genuine accountability and responsibility for worker safety. In her second reading speech in the other place the Minister for Industrial Relations, and Minister for Work Health and Safety, mentioned that over the last five years there have been 300 fatal workplace incidents in New South Wales.

How many lives have been lost due to this gap in our laws that has allowed bosses to get away with gross negligence when it comes to the lives and safety of workers in this State? How many costs and corners have been cut in the pursuit of profit and at the tragic expense of lives? How many families have been torn apart by that terrible phone call informing them that their partner, their husband or wife, their son or daughter, their grandchildren, or their niece or nephew will never come home from work again? How many colleagues and comrades have been traumatised for the rest of their lives after seeing their friend and co-worker die in a tragic and often avoidable accident before their very eyes? Enough is enough. It is time that somebody is held accountable.

I acknowledge and applaud the particularly strong and continuing work and advocacy of the CFMEU, which has been a key driving force behind this long‑overdue reform. It has taken longer than it should to overcome the political obstacles. Throughout this time, union leaders and politicians, including me, have continued to meet with and hear from grieving families about the death of a loved one at work. Throughout this time, the question has kept being put, demanding an answer and justice and vindication for their lost loved ones. They have asked, "Why is there a different test for the death of my son at work? Why is there a different test for the death of my daughter, husband, wife or partner at work? Why is their employer, which had a responsibility to keep them safe, when it has so terribly failed in that most basic duty, held to a different and lesser standard? Why do bosses get a 'get out of jail free' card for a death in the workplace?"

The bill, and the campaign for an industrial manslaughter offence, is an answer to those questions. When the bill passes into law, the answer will no longer be that a life is worth less when it is a worker's. The answer will be, "Kill a worker, go to jail." These reforms will bring New South Wales into alignment with the seven other mainland jurisdictions in Australia—all but Tasmaniawhich have already introduced industrial manslaughter offences. In August 2023, the federally agreed work health and safety model laws were also amended to include a jurisdictional note, and recommended maximum penalties in dealing with industrial manslaughter. The bill amends the Work Health and Safety Act 2011 to insert a new industrial manslaughter offence that will apply to a person, including a body corporate, who has a health and safety duty under the Act and is a person conducting a business or undertaking or is an officer of a person conducting a business or undertaking.

The offence will apply where the person engages in conduct that constitutes a grossly negligent failure to comply with their work health and safety duty, causing the death of a worker or another individual to whom the person's work health and safety duty is owed. There is discussion about what the correct threshold should be in determining the conduct and state of mind of the person accused of the offence. The bill determines that the standard of gross negligence is most appropriate, mirroring the threshold for other manslaughter offences. It may be worth monitoring whether that threshold remains appropriate or if it represents an impermissible barrier to the successful prosecution of this offence. The maximum penalty for the offence will be a fine of $20 million for a body corporate and 25 years imprisonment for an individual. These penalties will make New South Wales the harshest penalty jurisdiction in the country for this offence, as it should be.

New South Wales was once a nation leader in worker rights and safety, and it is long overdue for us to reclaim this mantle and become a leader again rather than laggard. There will be no limitation period for an industrial manslaughter offence, which is consistent with the manslaughter offence under the Crimes Act 1900, and a person may be found guilty of a category 1 offence in the alternative. Where a category 1 offence is relied on as an alternative to the industrial manslaughter offence, there will be no limitation period for that offence. It is right and fair that there should be no limitation period imposed on this offence, as it will continue to be a complex offence to make out, particularly in the earliest years of its implementation.

We must make it clear that there is no escape from this penalty and that justice will be served for workers who tragically die on a worksite. Proceedings against an individual will be dealt with on indictment. For a body corporate, these proceedings will be dealt with summarily, unless a prosecutor elects otherwise. The bill also requires that a statutory review of the offence provision be undertaken 18 months after the commencement of the provisions. This is a very important provision, as it will give experts the opportunity to improve and sharpen the offence to make sure it is serving its intended purpose. New South Wales will have the opportunity to learn the lessons of other jurisdictions that are a little more advanced in the implementation and enforcement of the offence so we can make sure that workers are best protected.

I will address a critical element that goes to the effectiveness of this legislation that exists outside of the language provisions of the bill: the resourcing within both SafeWork and, importantly, within the Office of the Director of Public Prosecutions to effectively and expeditiously pursue these prosecutions. I note the announcements in the media that the Government will create a special unit within the Director of Public Prosecutions that will be responsible for prosecuting industrial manslaughter cases. This is a really important element, and I strongly welcome it. I take this opportunity to ask the Minister to provide assurances in her speech in reply that this special unit will receive as much resourcing, training and prioritisation as is required to be the crack unit of specialist industrial prosecutors that this State deserves.

Additionally, I reflect on an important element that is implied through this legislation. Over the years, the nature of work has changed. Of course, the countless physically dangerous jobs are the rightful focus of attention in this legislation. But I also reflect on the important developments that have occurred in recent years since the last time Labor tried to legislate for an industrial manslaughter offence, in 2021. In this time, we have come to recognise the particularly harmful psychological effects that can arise due to workplace conditions. Our work health and safety laws now reflect this reality and impose a positive duty on employers to provide a psychologically safe workplace that is safe from harassment and discrimination.

I raise that duty on employers in the context of the bill to flag my hope and understanding that it will extend to the industrial manslaughter offence in the terrible event that a worker's mental wellness is so impacted by the psychologically unsafe conditions of their workplace that they end up dying by suicide. This is a terrible prospect to contemplate, and no doubt would require a lot of evidence to prove. But just as we hope to never have to use this industrial manslaughter offence for a physical injury that results in death, we hope that employers will take their duty to protect the psychological safety of their workers equally seriously.

I conclude by sincerely thanking every person who has worked so diligently and passionately on this piece of legislation. I particularly thank Sherri Hayward from the CFMEU for her role in shepherding this legislation forward, and for her sage advice and deep knowledge. I also thank and acknowledge the work of the team at Unions NSW, in particular Secretary Mark Morey, and the wonderful Injured Workers Support Network. Of course, I particularly thank and note my appreciation of the Minister for Industrial Relations, and Minister for Work Health and Safety, Sophie Cotsis, and her office, in particular Tom Craven, who have both made themselves so available to me and my office. I appreciate their trust and their open and collaborative approach to all of the work we do together. I cannot say the same for every office, but it is nice to feel that we are pulling in the same direction on these issues and fighting for a better deal for workers.

Finally, and most importantly, I acknowledge the families and friends of the workers who have already been tragically lost to a workplace death. This legislation will not bring their loved ones back, but it will certainly serve as their legacy. I hope that can bring them some small comfort. The Greens wholeheartedly support the bill.

 

Read the full Hansard here.

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