Consultation RIS: 2018 Review of the WHS laws

Monday, 05 August 2019

On 5 August 2019, the AICD made a submission to Safe Work Australia on the Consultation RIS regarding the recommendations of the 2018 Boland Review into Model Work Health and Safety Laws.

The AICD’s experience is that the overwhelming majority of company directors take health and safety matters very seriously. Aside from legal obligations and ethical expectations, it is critical that directors and officers pay particular attention to the health and safety of employees and others within the workplace, and this has a strong focus in the AICD’s educational curriculum and materials.

The AICD limited its comments to two of the recommendations, being (i) the Category 1 offence and industrial manslaughter (recommendation 23(a)-(b)) and (ii) the prohibition of insurance for WHS fines (recommendation 26).

In summary:

  • The AICD is of the view that the introduction of an industrial manslaughter offence is not necessary. WHS laws are rightly focused on prevention of workplace injuries and death rather than punishment for wrongdoing (being the focus of manslaughter offences).
  • The existing Model WHS Laws have struck the right balance between prevention and deterrence in the form of the Category 1 offence, which has significant penalties and the potential for imprisonment. The AICD is of the view that industrial manslaughter offences may ultimately distract regulators from the core object of the WHS laws.
  • Although the AICD does not consider it necessary to amend the Category 1 offence to include gross negligence, the AICD would not oppose its inclusion provided the high standard of gross negligence (set out in the submission) is incorporated into the definition.
  • The AICD does not support the prohibition on insurance for fines in a WHS context. Such a prohibition may mean that an individual can be held liable without the need for some culpability to be established. This makes the availability of insurance crucial. The common law already adopts a carefully balanced approach to cases involving an insured seeking to claim under an insurance policy with respect to any alleged criminal liability.

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