2002-2003-2004

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Criminal Code Amendment (Workplace Death and Serious Injury) Bill 2004

No. , 2004

(Senator Nettle)

A Bill for an Act to amend the Criminal Code Act 1995 to create new offences in relation to industrial manslaughter and causing serious harm, and for related purposes

Contents

A Bill for an Act to amend the Criminal Code Act 1995 to create new offences in relation to industrial manslaughter and causing serious harm, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Criminal Code Amendment (Workplace Death and Serious Injury) Act 2004.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendment of the Criminal Code Act 1995

1 The Schedule (after Chapter 9 of the Criminal Code)

Insert:

Chapter 9A--Industrial manslaughter and serious harm

Part 9A.1--Liability for causing death or serious harm

380.1 Definitions

In this Part, unless the contrary intention appears:

agent, of a person (the first person), means:

(a) a person (the second person) engaged by the first person (whether as independent contractor or otherwise) to provide services to the first person in relation to matters over which the first person:

(i) has control; or

(ii) would have had control apart from an agreement between the first person and the second person; or

(b) a person engaged by another agent of the first person, or by an agent of an agent, (whether as independent contractor or otherwise) to provide services, in relation to matters over which the other agent:

(i) has control; or

(ii) would have had control apart from an agreement between the agents.

causes death or serious harm--a person's conduct causes the death or serious harm if it substantially contributes to the death or serious harm.

conduct has the meaning given in subsection 4.1(2).

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) among the States; or

(b) between a State and a Territory; or

employee means a person engaged under a contract of services.

employer of a worker--a person is an employer of a worker if:

(a) the person engages the worker as a worker of the person; or

(b) an agent of the person engages the worker as a worker of the agent.

independent contractor means a person engaged under a contract for services.

officer of a corporation has the meaning given by section 9 of the Corporations Act 2001.

outworker means an individual engaged by a person (the principal) under a contract for services to treat or manufacture articles or to perform other services:

(a) in the outworker's own home; or

(b) on other premises not under the control or management of the principal.

Safety, Rehabilitation and Compensation Commission means the Commission established by section 89A of the Safety, Rehabilitation and Compensation Act 1988.

senior officer, of an employer, means:

(a) for an employer that is a Commonwealth entity--any of the following:

(i) a Minister;

(ii) a person occupying a chief executive officer position (however described) in relation to the entity;

(iii) a person occupying an executive position (however described) in relation to the entity who makes, or takes part in making, decisions affecting all, or a substantial part, of the functions of the entity; or

(b) for an employer that is a constitutional corporation--an officer of the corporation; or

(i) a person occupying an executive position (however described) in relation to the organisation who makes, or takes part in making, decisions affecting all, or a substantial part, of the functions of the organisation;

(ii) if the employer is a corporation--an officer of the corporation;

(iii) if the employer is not a corporation--a person who would be an officer of the organisation if the organisation were a corporation.

serious harm has the meaning given in the dictionary.

volunteer means a person who:

(a) provides services:

(i) for, or in relation to, the trade or business of someone else; or

(ii) for an entity for, or in relation to, a religious, educational, charitable or benevolent purpose or otherwise in the public interest; and

(b) receives no payment for the provision of the services (other than reasonable out-of-pocket expenses).

worker means:

(a) an employee; or

(b) an independent contractor; or

(d) an apprentice or trainee; or

(e) a volunteer.

380.2 Application

(1) This Part applies to Commonwealth entities, constitutional corporations and organisations engaged in constitutional trade or commerce.

(2) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

(3) This Part binds the Crown in all of its capacities.

380.3 Attribution of certain conduct

(1) For the purposes of the definition of agent in section 380.1, the conduct of:

(a) an employee of an agent; or

(b) a senior officer of an agent;

acting within the actual scope of their employment, or within their actual authority, must be attributed to the agent.

(2) For the purposes of sections 380.4 and 380.5:

(a) the conduct of employees, agents and senior officers of a body corporate acting within the actual scope of their employment, other than in the course of judicial or quasi-judicial duties, or within their actual authority, must be attributed to the body corporate, including a body corporate that represents the Commonwealth; and

(b) the conduct of:

(i) agents and members of, and persons who are appointed to or employed to work for, an unincorporated body (other than a body deemed to be a body corporate) that is established under an Act or represents the Commonwealth; or

(ii) senior officers of the Commonwealth;

acting within the actual scope of their employment, or within their actual authority, must be attributed to the Commonwealth.

(3) Only the conduct referred to in subsection (2)(b) may be attributed to the Commonwealth.

380.4 Industrial manslaughter--employer offence

An employer commits an offence if:

(a) a worker of the employer:

(i) dies in the course of employment by, or providing services to, or in relation to, the employer; or

(ii) is harmed in the course of employment by, or providing services to, or in relation to, the employer and later dies; and

(b) the employer's conduct causes the death of the worker; and

(c) the employer is negligent in relation to causing the death of the worker, or any other worker of the employer, by the conduct.

Penalty:

(a) If the offender is a natural person--50 000 penalty units, or imprisonment for 25 years.

(b) If the offender is a body corporate--500 000 penalty units.

380.5 Negligently causing serious harm--employer offence

An employer commits an offence if:

(a) a worker of the employer suffers serious harm in the course of employment by, or providing services to, or in relation to, the employer; and

(b) the employer's conduct causes the serious harm to the worker; and

(c) the employer is negligent in relation to causing the serious harm to the worker, or any other worker of the employer, by the conduct.

Penalty:

(a) If the offender is a natural person--50 000 penalty units, or imprisonment for 10 years.

(b) If the offender is a body corporate--500 000 penalty units.

380.6 Negligence

Without limiting the definition of negligence in section 5.5, in determining whether an employer is negligent, the court may have regard to:

(a) the conduct of the employer's organisation as a whole; and

(b) the aggregate of the conduct of any number of the employees, senior officers or agents of the employer; and

(c) the negligence of any agent in the provision of services but that negligence must not be attributed to the employer; and

(d) any failure of the employer to:

(i) adequately manage, control or supervise the conduct of one or more of its employees, agents or senior officers; or

(ii) engage as an agent a person reasonably capable of providing the contracted services; or

(iii) provide adequate systems for conveying relevant information to relevant persons in the employer's organisation; or

(iv) take reasonable action to remedy a dangerous situation of which a senior officer has actual knowledge; or

(v) take reasonable action to remedy a dangerous situation identified in a written notice served on the employer by or under an Act.

380.7 Senior officer offences

(1) If an employer has committed an offence against section 380.4 and:

(a) a senior officer of the employer:

(i) was organisationally responsible for the conduct, or part of the conduct, of the employer in relation to the commission of the offence by the employer; and

(ii) in performing or failing to perform his or her organisational responsibilities, contributed substantially to the commission of the offence by the employer; and

(iii) knew that, as a consequence of his or her conduct, there was a substantial risk that the employer would engage in conduct that involved a high risk of death or serious harm to a person; and

(b) having regard to the circumstances known to the senior officer, it was unjustifiable to allow the substantial risk referred to in subparagraph (a)(iii) to exist;

the senior officer is guilty of an offence.

Penalty: 50 000 penalty units or imprisonment for 25 years.

(2) If an employer has committed an offence against section 380.5 and:

(a) a senior officer of the employer:

(i) was organisationally responsible for the conduct, or part of the conduct, of the employer in relation to the commission of the offence by the employer; and

(ii) in performing or failing to perform his or her organisational responsibilities, contributed substantially to the commission of the offence by the employer; and

(iii) knew that, as a consequence of his or her conduct, there was a substantial risk that the employer would engage in conduct that involved a high risk of death or serious harm to a person; and

(b) having regard to the circumstances known to the senior officer, it was unjustifiable to allow the substantial risk referred to in subparagraph (a)(iii) to exist;

the senior officer is guilty of an offence.

Penalty: 50 000 penalty units or imprisonment for 10 years.

(3) For the purposes of subparagraphs (1)(a)(i) and (2)(a)(i), without limiting the matters that may be considered in determining whether a senior officer of an employer is organisationally responsible for the conduct, or part of the conduct, of the employer, consideration may be given to:

(a) the extent to which the senior officer was in a position to make, or influence the making of, a decision concerning the manner in which the conduct, or that part of the conduct, was performed; and

(b) the participation of the senior officer in a decision of the board of directors or other managing body of the employer concerning the manner in which the conduct, or that part of the conduct, was performed; and

(4) In this section, senior officer does not include a senior officer who acts as such without any fee, gain or reward or the expectation of any fee, gain or reward.

(5) A senior officer of an employer may be prosecuted for an offence against subsection (1) or (2), whether or not the employer has been prosecuted for or convicted or found guilty of an offence against section 380.4 or 380.5, as the case may be.

380.8 Sentencing of, and orders in relation to, offenders

(1) This section applies if a court finds a natural person, including a senior officer, guilty of an offence against section 380.4, 380.5 or 380.7.

(2) A custodial sentence must not be imposed unless the court considers that the degree of negligence involved in the conduct was extreme or the person has a prior conviction for an offence under this Part.

(3) In addition to, or instead of any other penalty the court may impose on the person, the court may make one or more of the following orders:

(a) that the person undertake voluntary service for the public benefit in any capacity or for any period which the court thinks fit;

(b) that the person undergo specified training or educational activities;

(d) any other order the court thinks fit, including that the person make reparation to any person, by way of payment of money or otherwise, in respect of any loss suffered or any expense incurred by that person as direct result of the commission of the offence.

380.9 Court may order corporation to take specified actions

(1) This section applies if a court finds a corporation guilty of an offence against section 380.4 or 380.5.

(2) In addition to, or instead of, any other penalty the court may impose on the corporation, the court may order the corporation to do one or more of the following:

(a) take any specified action to publicise:

(i) the offence; and

(ii) the death or serious harm or other consequences resulting from or related to the conduct from which the offence arose; and

(iii) any penalties imposed, or other orders made, because of the offence;

(b) take any specified action to notify one or more people of the matters mentioned in paragraph (a);

(c) do specified things or establish or carry out a specified project for the public benefit even if the project is unrelated to the offence;

(d) make reparation to any person, by way of payment of money or otherwise, in respect of any loss suffered or any expense incurred by that person as direct result of the commission of the offence.

380.10 Matters related to orders

(1) This section applies to orders made under subsection 380.8(3) or 380.9(2).

(2) In making orders, the court may specify a period within which the action must be taken, the thing must be done or the project must be established or carried out, and may also impose any other requirement that it considers necessary or desirable for enforcement of the order or to make the order effective.

(3) The total cost to the person or the corporation, as the case may be, of compliance with an order or orders in relation to a single offence, including any fine actually imposed, must not be more than the maximum fine applicable to the offence.

(4) If the court decides to make an order, it must, in deciding the kind of order, take into account, as far as practicable, the financial circumstances of the person or corporation and the nature of the burden that compliance with the order will impose.

(5) The court is not prevented from making an order only because it has been unable to find out the financial circumstances of the person or corporation.

(6) If a person or corporation fails, without reasonable excuse, to comply with an order within the specified period (if any) the court may, on application by the Safety, Rehabilitation and Compensation Commission, by order authorise the Commission:

(a) to do anything that is necessary or convenient to carry out any action that remains to be done under the order and that it is still practicable to do; and

(b) to publicise the failure of the person or corporation to comply with the order.

(7) If the court makes an order under subsection (6), the Commission must comply with the order.

(8) Subsection (6) does not prevent contempt of court proceedings from being started or continued against a person or corporation that has failed to comply with an order under section 380.8 or 380.9.

(9) If the offender is a corporation, the Safety, Rehabilitation and Compensation Commission may recover any costs it incurs in complying with an order under subsection (6) as a debt due and payable by the corporation against which the order was made.

Schedule 2--Amendment of the Safety, Rehabilitation and Compensation Act 1988

1 After paragraph 89B(b)