Industrial Manslaughter Offences Now Australia Wide
In our Term 2 Notes, we wrote about the coronial inquest into the death of 16 year old Lachlan Cook, a student at Kilvington Grammar School, who went on a three-week overseas school trip to Vietnam organised through World Challenge Expeditions during the 2019 September holidays. He died following a cardiac arrest while on the trip precipitated by sever ketoacidosis which is a serious complication of diabetes.
World Challenge Expeditions and Kilvington Grammar School were both charged under section 23(1) of the Occupational Health and Safety Act 2004 (VIC) which reads:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
We understand that the School and World Challenge Expeditions have admitted the charge and are expected to be sentenced later in 2024 or early in 2025.
The Commonwealth and all states have passed industrial manslaughter offences in recent years (NSW and Tasmania only in 2024). The Commonwealth laws only apply to the public service.
Section 39G of the Occupational Health and Safety Act 2004 (VIC) is a good example of state laws now in force:
(1) A person who is not a volunteer must not engage in conduct that—
(a) is negligent; and
(b) constitutes a breach of an applicable duty that the person owes to another person; and
(c) causes the death of that other person.
Penalty: Imprisonment for 25 years for a natural person;
100,000 penalty units for a body corporate.
(2) A person who is an officer of an applicable entity [e.g. a body corporate], and who is not a volunteer, must not
engage in conduct that—
(a) is negligent; and
(b) constitutes a breach of an applicable duty that the entity owes to another person; and
(c) causes the death of that other person.
Penalty: Imprisonment for 25 years.
School governors and principals could be personally liable for fines or even imprisonment under work health and safety laws in all states and territories.
For assistance in complying with your work health and safety obligations, please contact David Ford or Stephanie McLuckie.
