Late last year, the Queensland Government introduced the Work Health and Safety and Other Legislation Amendment Bill 2023 (Bill). Most significantly under the Bill, the following amendments have been proposed to the Work Health and Safety Act 2011 (Qld) (WHS Act):
- amending section 31 of the WHS Act to include ‘negligence’ as a fault element in the Category 1 offence under the WHS Act, after it was found that the “high threshold of reckless conduct” is “contributing to a low number of successful Category 1 prosecutions”; and
- prohibiting the ability for companies to obtain insurance coverage for potential liabilities associated with the WHS Act.
This article provides a summary of those amendments and their impact if the Bill is passed and the proposed amendments enacted.
Amendments to s.31 of the WHS Act
Currently, under the WHS Act, duties holders may be charged with the following offences, depending on the severity and seriousness of the breaches and if such breaches caused a fatality:
Industrial Manslaughter: which applies when a worker dies and the person’s “negligent” conduct caused the death of the worker.
Category 1 – which applies when there is a breach of a health and safety duty and the conduct was “reckless” as to the risk of death or serious injury or illness.
Category 2 – which applies when there is a breach of a health and safety duty that exposed a person to a risk of death, serious illness or injury (when there is no element of recklessness).
Category 3 – which applies when there is a breach of a health and safety duty but there was no exposure to a risk of death or serious injury or illness.
The amendments under the Bill relate only to what constitutes the category 1 offence under s.31 of the WHS Act.
The Explanatory Notes of the Bill explained:
- The Boland Review – the review of the Model WHS Laws across Australia – found that the threshold of reckless conduct is contributing to a low number of successful category 1 prosecutions. To address this, the Boland Review report recommended an alternative fault element of gross negligence, or equivalent, be included in the Category 1 offence in the model WHS Act.
- The Bill amends section 31 of the WHS Act to include ‘negligence’ as a fault element in the category 1 offence, consistent with the Boland Review recommendations.
- A category 1 offences will involve conduct where the fault element is negligence or recklessness that exposes an individual to a risk of death or serious injury or serious illness without reasonable excuse. The prosecution will be required to prove either the fault element of negligence or recklessness in addition to proving the physical elements of the offence.
- Providing an alternative fault element of negligence is intended to lower the threshold for conviction for Category 1 offences. Unlike recklessness, the fault element of negligence does not require the prosecution to prove that the offender had a subjective awareness that their conduct posed a substantial risk of death or serious injury or illness and continued on with their conduct regardless.
- The use of ‘negligence’ as the fault element is consistent with the industrial manslaughter offence in the WHS Act and means that the existing standard of criminal negligence will apply to both offences.
- The intention is that Category 1 offences will address the most serious breaches where there was a high level of risk of death or serious harm, and the duty holder was reckless or negligent in their conduct. Category 2 offences involve less culpability as there is no fault element and apply in circumstances where there was high level of risk of death or serious harm from a failure to comply with a WHS duty owed.
Insurance Amendments
The Bill also proposes to amend the WHS Act so that to “prohibit persons from entering insurance contracts or being granted indemnity, or benefiting from these arrangements, to cover liability for WHS fines”.
If passed, the offence of entering into such arrangements will carry a maximum penalty of $77,400 (500 penalty units).
Typically, companies (especially those in the building and construction industry) obtain insurance or an indemnity from their contractor or subcontractor, in relation to work health and safety breaches. When a workplace incident occurs, the insurer usually steps in and defends the prosecution case (and cover the legal fees) on the company’s behalf to manage the potential exposure to a monetary penalty. Such insurance will no longer be possible if these laws are passed. Companies should be mindful of this. If an incident occurs, they will likely need to seek, and directly pay for, legal representation.
Takeaway
We expect that this year will be yet another significant and eventful year in relation to workplace health and safety. 2023 saw a particular focus on psychosocial risks, reflected across many jurisdictions, and various prosecutions for serious health and safety breaches, especially in the building and construction industry.
Based on the number of recent highly publicised workplace incidents in the building and construction industry, we expect that there will be further serious WH&S prosecutions commenced in 2024. If (and likely when) the Bill is passed, the number of category 1 offences alleged and prosecuted will also increase.
CDI Lawyers will continue to keep you up to date with any relevant WH&S developments and future changes throughout 2024.
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