Industrial Manslaughter - Anderson Legal

Industrial Manslaughter

Work Health & Safety Laws – Queensland

Get informed about the law, defences, and penalties in Queensland

Industrial manslaughter is a relatively new criminal offence in Queensland, having being introduced in 2017. It targets business operators and senior officers in corporations who, through negligence, cause a worker’s death. The maximum penalty for an individual is up to 20 years imprisonment and for a body corporate it is up to 100,000 penalty units.

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Industrial Manslaughter

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Industrial Manslaughter

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
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Industrial Manslaughter

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
Criminal Defence Image

Queensland Law

Industrial Manslaughter Offences

In Queensland, industrial manslaugther offences were created in the following laws:

  • Work Health and Safety Act (Qld)
  • Electrical Safety Act (Qld)
  • Safety in Recreational Water Activities Act (Qld)

The offences in each law are essentially in identical terms. The industrial manslaughter offences commenced on 23 October 2017 after laws were passed by Queensland Parliament. The policy purpose behind the laws was set out in the Explanatory Notes for the newly created industrial manslaughter offences:

In October 2016 the Government announced a best practice review of work health and safety laws (the Review) as a result of fatalities at Dreamworld and Eagle Farm. These fatalities highlighted the need to ensure the current work health and safety (WHS) framework, and how it is administered, is robust, operates as an effective deterrent to non-compliance, and is responsive to emerging issues. Under the terms of reference, the Review specifically considered:

  • the appropriateness of WHSQ’s Compliance and Enforcement Policy;
  • the effectiveness of WHSQ’s compliance regime, enforcement activities, and dispute resolution processes;
  • WHSQ’s effectiveness in relation to providing compliance information and promoting work health and safety awareness and education;
  • the appropriateness and effectiveness of the administration of public safety matters by WHSQ; and
  • any further measures that can be taken to discourage unsafe work practices, including the introduction of a new offence of gross negligence causing death as well as increasing existing penalties for work-related deaths and serious injuries.

On 3 July 2017, the final report for the Review was provided to the Government. The Review proposed a number of legislative amendments to the Work Health and Safety Act 2011 (WHS Act), including some instances where mirror amendments are proposed for the Electrical Safety Act 2002 and the Safety in Recreational Water Activities Act 2011. The Bill implements the legislative amendments from the Review including:

  • introducing an offence of industrial manslaughter;
  • establishing an independent statutory office for work health and safety prosecutions;
  • addressing issue resolution matters by expanding the jurisdiction of the QIRC to include hearing and determining work health and safety disputes;
  • restoring the status of codes of practice as existed under the WHS Act 1995; prohibiting enforceable undertakings being accepted for contraventions, or alleged contraventions, of the WHS Act that involve a fatality;
  • reintroducing the ability for a PCBU to appoint a WHSO; and
  • enhancing support for, and the role of, HSRs.

In essence, for an industrial manslaughter offence in Queensland, it is necessary to prove:

  1. a worker dies in the course of carrying out work for the business or undertaking, or is injured and later dies; and
  2. the person charged caused, or substantially caused, the death of the worker by their conduct (either acts or omissions); and
  3. the person charged was negligent about causing the death of the worker, or another worker by the conduct.

It is clear that the law requires the deceased to be a worker who “dies in the course of carrying out work for the business or undertaking”. This means that if a business customer died through some negligence, industrial manslaughter could not be charged. However, manslaughter under the Criminal Code (Qld) could be charged if, for instance, a duty of care was owed to the person who died and the business operator was criminally negligent (certain duties of care are specified in sections 285 to 289 of the Criminal Code (Qld)).

Work Health and Safety Act (Qld)

Part 2A of the Work Health and Safety Act (Qld) contains industrial manslaughter laws designed to protect workers in workplaces in Queensland. The offence is split up into two sections covering business operators and corporate executives (referred to as ‘senior officers’) separately:

Section 34C of the Work Health and Safety Act (Qld) creates the offence described by the law as “Industrial manslaughter—person conducting business or
undertaking”. The law states:

34C Industrial manslaughter—person conducting business or undertaking

(1) A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Note— See section 244 or 251 in relation to imputing to a body corporate or public authority particular conduct of employees, agents or officers of the body corporate or public authority.

(2) An offence against subsection (1) is a crime.

Section 34D of the Work Health and Safety Act (Qld) creates the offence described by the law as “Industrial manslaughter—senior officer”. The law states:

34C Industrial manslaughter—senior officer

(1) A senior officer of a person who carries out a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the senior officer’s conduct causes the death of the worker; and

(c) the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty — 20 years imprisonment.

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

(2) An offence against subsection (1) is a crime.

Electrical Safety Act (Qld)

Part 2B of the Electrical Safety Act (Qld) contains industrial manslaughter laws designed to protect people whose work involves electricity in Queensland. The offence is split up into two sections covering business operators and corporate executives (referred to as ‘senior officers’) separately:

Section 48N of the Electrical Safety Act (Qld) creates the offence described by the law as “Industrial manslaughter—person conducting business or
undertaking”. The law states:

34C Industrial manslaughter—person conducting business or undertaking

(1) A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Note— See section 188 or 190B in relation to imputing to a body corporate or public authority particular conduct of employees, agents or officers of the body corporate or public authority.

(2) An offence against subsection (1) is a crime.

Section 48O of the Electrical Safety Act (Qld) creates the offence described by the law as “Industrial manslaughter—senior officer”. The law states:

34C Industrial manslaughter—senior officer

(1) A senior officer of a person who carries out a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the senior officer’s conduct causes the death of the worker; and

(c) the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty — 20 years imprisonment.

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

(2) An offence against subsection (1) is a crime.

Safety in Recreational Water Activities Act (Qld)

Part 2A of the Safety in Recreational Water Activities Act (Qld) contains industrial manslaughter laws designed to protect workers undertaking recreational water activities in Queensland. The offence is split up into two sections covering business operators and corporate executives (referred to as ‘senior officers’) separately:

Section 25C of the Safety in Recreational Water Activities Act (Qld) creates the offence described by the law as “Industrial manslaughter—person conducting business or
undertaking”. The law states:

34C Industrial manslaughter—person conducting business or undertaking

(1) A person conducting a business or undertaking that provides recreational water activities commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Note— See the Work Health and Safety Act 2011, section 244 or 251, as applied by section 36 of this Act, in relation to imputing to a body corporate or public authority particular conduct of employees, agents or officers of the body corporate or public authority.

(2) An offence against subsection (1) is a crime.

Section 25D of the Safety in Recreational Water Activities Act (Qld)creates the offence described by the law as “Industrial manslaughter—senior officer”. The law states:

34C Industrial manslaughter—senior officer

(1) A senior officer of a person who carries out a business or undertaking that provides recreational water activities commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the senior officer’s conduct causes the death of the worker; and

(c) the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty — 20 years imprisonment.

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

(2) An offence against subsection (1) is a crime.

Criminal Negligence

To be guilty of industrial manslaughter, it is necessary for the prosecution to prove that the person charged was ‘negligent’ in their conduct. As a legal concept, negligence that may give rise to civil consequences (such as a person being able to sue another for compensation) is not the same as negligence that is made a criminal offence. The High Court of Australia in Callaghan v The Queen [1952] HCA 55 explained that even though the duties of care may appear to be expressed the same between civil and criminal law, negligence giving rise to criminal culpability needs to amount to “gross” negligence. In Patel v The Queen [2012] HCA 29, the concept of criminal negligence was summarised as follows:

Criminal responsibility therefore attaches only if there has been “criminal” or “gross” negligence. In Bateman, Hewart LCJ said that whatever epithet be used, the standard of conduct must go beyond that relevant to a matter of compensation; it must be such as to show such disregard for the life and safety of others as to amount to a crime and to be conduct deserving punishment. In Nydam v The Queen, the requisite standard was said to involve “such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”

Footnotes omitted.

Proof of Industrial Manslaughter

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond a reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

There are different ways elements may be expressed, depending on the issues in a given case. In essence, for an industrial manslaughter offence in Queensland, it is necessary to prove:

  1. a worker died in the course of carrying work for the business or undertaking, or was injured and later died; and
  2. the person charged caused, or substantially caused, the death of the worker by their conduct (either by acts or omissions); and
  3. the person charged was negligent about causing the death of the worker, or another worker by the conduct.

It is clear that the law requires the deceased to be a worker who “dies in the course of carrying out work for the business or undertaking”. This means that if a business customer died through some negligence, industrial manslaughter could not be charged. However, manslaughter under the Criminal Code (Qld) could be charged if, for instance, a duty of care was owed to the person who died and the business operator was criminally negligent (certain duties of care are specified in sections 285 to 290 of the Criminal Code (Qld)).

In reviewing an individual case, a criminal lawyer’s work often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.


Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as industrial manslaughter, they are generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For a charge of industrial manslaughter, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution has an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence from being lost or destroyed.

Common defences for ‘industrial manslaughter’

The law requires the prosecution to prove that the industrial manslaughter was both ’caused’ by the person charged, and that their conduct was ‘negligent’. In a case involving an industrial murder charge in Queensland, it is likely that instead of reliance on common criminal defences, challenges to the prosecution case will be based on whether the elements of the offence can be proved. This is because with negligence being the standard of ‘fault’ for the offence, the charge assumes that the person did not intend to cause the death, or even do any actions deliberately to cause that result. Most of the common defences that apply to offences in Queensland may relate to the reasons for deliberately doing something (such as self-defence or provocation), or the act was ‘unwilled’ or the consequence was an ‘accident’. Given the defences of ‘unwilled act’ and ‘accident’ do not apply to cases of industrial manslaughter, there may be little scope for the typical criminal defences to apply.

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of industrial manslaughter should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Excluded defences for ‘industrial manslaughter’

In Queensland, the same defences do not apply to every offence. Certain defences are qualified or excluded based on the elements that may apply. For example, industrial manslaughter specifically excludes the operation of defences under section 23 of the Criminal Code (Qld). For that reason, there is no defence of ‘unwilled act’ or ‘accident’ to a charge of industrial manslaughter. In the case of manslaughter under the Criminal Code (Qld), section 23 is also excluded in cases involving criminal negligence.


Possible Penalties

Maximum Penalty

The maximum penalty for industrial manslaughter in Queensland is 20 years imprisonment. For a ‘body corporate’ charged with ‘Industrial manslaughter—person conducting business or undertaking’, the maximum penalty is 100,000 penalty units.

Minimum Penalty

There is no minimum penalty that applies to a charge of industrial manslaughter.

Sentencing in Queensland

For a charge of industrial manslaughter, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a homicide offence like industrial manslaughter, the law states that the court must have primary regard to the following considerations:

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  • the need to protect any members of the community from that risk;
  • the personal circumstances of any victim of the offence;
  • the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
  • the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  • any disregard by the offender for the interests of public safety;
  • the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  • the antecedents, age and character of the offender;
  • any remorse or lack of remorse of the offender;
  • any medical, psychiatric, prison or other relevant report in relation to the offender;
  • anything else about the safety of members of the community that the sentencing court considers relevant.

Possible Outcomes

There are a range of possible penalty outcomes for offences of industrial manslaughter. As a relatively new offence in Queensland, there is limited guidance as to what penalty may be imposed from past court decisions. However, in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 the District Court recorded a conviction and imposed a fine of $3 million on a company that pleaded guilty to an offence of industrial manslaughter contrary to section 34C of the Work Health and Safety Act (Qld). The auto wrecking business concerned was charged with causing the death of a worker, who died as a result of being struck by a forklift which was being reversed by another worker. The investigation by Work Health and Safety Queensland revealed that the company had no safety systems in place. In particular, there was no traffic management plan despite the continuous operation of a number of forklifts in close proximity to workers and members of the public at the worksite. It was also found that the driver of the forklift that struck the deceased did not hold the relevant licence and the company had not made reasonable enquiries to confirm if he held one. Judge Rafter SC said in relation to the fine imposed for industrial manslaughter:

In respect of Brisbane Auto Recycling Pty Ltd, I have concluded that a fine of $3 million is appropriate. A fine of that magnitude, which is less than one third of the available maximum penalty, is appropriate. A lesser penalty would not adequately punish Brisbane Auto Recycling Pty Ltd or serve to adequately deter others. When imposing a fine, it is necessary to have regard to the financial circumstances of the offender, and the nature of the burden that payment of the fine will be on the offender. The forensic accounting report in relation to Brisbane Auto Recycling Pty Ltd indicates that it does not have the capacity to pay a fine of that magnitude or any substantial fine. However, that does not preclude the imposition of an appropriate fine in the circumstances.

Footnotes omitted.

The two directors of Brisbane Auto Recycling Pty Ltd were each charged with ‘Reckless Conduct – Category 1’ contrary to section 31 of the Work Health and Safety Act (Qld). This offence did not involve an allegation that they personally caused the death of the worker. The maximum penalty each of the directors was exposed to was 5 years imprisonment or 6,000 penalty units. For their conduct, each of the directors were convicted and sentenced to a wholly suspended term of 10 months imprisonment.

In some cases, a charge relating to industrial manslaughter may be substituted for, or charged in addition to, other homicide offences. The prosecution may determine that a more or less serious charge may be appropriate, based on the evidence. Related crimes include:


Expert Criminal Defence

Although based in Brisbane, Anderson Legal is frequently engaged to defend people facing criminal allegations across Queensland. If you are facing an industrial manslaughter charge and seek expert guidance from a leading criminal lawyer based in Brisbane, Anderson Legal offers comprehensive criminal defence services for its clients. This includes:

  • providing advice relating to allegations made or documents served on our clients;
  • identifying the strengths and weaknesses of the case alleged against our clients;
  • advising clients on options relating to obtaining evidence, including expert evidence;
  • communicating on behalf of its clients with police, courts, and others;
  • resolving, where appropriate, criminal charges through negotiation;
  • representing clients in trials and sentences before all courts; and,
  • filing and litigating appeals against wrongful convictions and unjust sentences.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and their preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

  • Andrew Anderson, Legal Director, is an award-winning lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, and multiple other courts dealing with trials and other hearings, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Prior to operating a law firm, Andrew Anderson worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from straightforward cases right through to complex homicide trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about industrial manslaughter charges, particularly as it relates to anybody facing an issue of this kind in Queensland. Anybody dealing with an industrial manslaughter charge ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you face a charge relating to industrial manslaughter, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations.

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