A law expert has pointed out several ambiguities in language used in the Queensland Government’s new industrial manslaughter laws that will make the prosecution of senior officers for health and safety negligence in the quarrying and mining sectors problematic.
In May, the Queensland Parliament passed the Mineral and Energy Resources Legislation Amendment Bill 2020. The bill amended legislation in the Queensland resources industry to create industrial manslaughter offences, including a 20-year jail term, which aim to discourage health and safety negligence among employers and senior officers to prevent worker deaths.
An estimated 50,000 people are employed in Queensland’s mines and quarries, with the new legislation pushing a strong message to industry executives.
Queensland already has offences based on recklessness in the Mining and Quarrying Safety and Health Act 1999, which has sparked scrutiny about how beneficial these tougher penalties are in encouraging workplace safety.
Cement Concrete & Aggregates Australia’s (CCAA) Queensland state director Aaron Johnstone is one of the industry body representatives who have previously disputed the need for new industrial manslaughter laws.
“The quarrying industry aims to have no injuries and no fatalities on its site,” he said. “While the CCAA questions the need for industrial manslaughter provisions, and has expressed these concerns directly to the Minister and the Parliament, we note that it is a high bar for a prosecution to take place in the unfortunate scenario of a workplace fatality.”
The penalty comes off the back of a suite of health and safety reforms to Queensland’s mining and quarrying sectors, including an in increase to the maximum penalty for offences to $4 million. Regulators have also been given powers to issue fines without going to court and there have been statewide safety reset sessions for mine and quarry workers.
An important facet of the manslaughter legislation is that it does not simply involve mining executives, with the term “senior officer” used for the legislation.
“The intention of that definition is to capture people who are at the highest level of an organisation,” McCullough Robertson Lawyers partner Cameron Dean told Quarry. “So it’s directed towards people who can influence the management of safety issues and culture at the workplace.
“There’s a range of factors that need to be considered so the mere fact that your title might be ‘middle manager’ doesn’t necessarily mean you don’t have the right level of responsibility to be exposed,” Dean added.
“As a general rule of thumb, the lower down the chain you are, the less likely that that you are exposed. So if you are truly somebody that is not at a high level of influence and control over how things are managed in an organisation, then you are less likely to be exposed.”
Negligence vs recklessness
With the new legislation set to be introduced in the coming months, there is still a grey area about what exactly counts as criminal negligence.
Dean said the bill’s references to both recklessness and negligence has created confusion around what level of culpability can be given to a senior officer, due to the two terms having different definitions.
“It’s perhaps a bit disappointing in the way the legislation has been put together,” Dean said. “When you look at these laws, negligence in this context actually hasn’t been defined.
“If you go to the explanatory memorandum that was published when the bill came out, they talk about the fact this industrial manslaughter offence recognises circumstances of a workplace fatality where an employer or senior officer also has been negligent about causing the death.”
In criminal law, recklessness involves a person who deliberately undertakes a course of action without a regard for any dangers involved, whereas negligence involves a failure to behave in a manner that an ordinary person would be expected to.
“When they say ‘negligent’ they mention recklessness or gross negligence,” Dean explained. “The unfortunate part of that is that recklessness and negligence are two completely different concepts. Recklessness imposes a higher standard of culpability. If you’re said to be reckless, you must have some appreciation of what you’re about to do and the consequences of doing it. If you proceed regardless of that, that’s reckless conduct.
“Negligence talks about the standard expected of a reasonable person and occurs when you fall short of that. There are existing offences and obligations in the Mining and Quarrying Safety and Health Act that relate to recklessness and wilful behaviour that causes a bad safety outcome, including fatality.”
Clarification for the definition of negligence was never revealed when the laws were being considered, Dean said.
“When the bill was being considered by the Parliamentary Committee, there was a recommendation made that the minister ought in the second reading speech to clarify what that standard of negligence was – but unfortunately we didn’t get that clarification,” he explained.
While a 20-year jail term might seem concerning, it is expected to be only applied to a worst case offender.
“To end up with a sentence at the top end of the range like that, it’d have to be absolutely callous disregard of safety operations that resulted in an obviously avoidable fatality,” Dean said. “It would also require the person who is charged with the offence to have a poor criminal history or a record of past offending to get to that level.
“Somebody who’s never before offended and is otherwise a good citizen is not going to be staring down the barrel of a 20-year prison sentence.”
For Dean, quarrying executives or senior officers who are much closer to monitoring on-site operations are more likely to be exposed. “I think in real and practical terms what we’re likely to see is that those people in organisations that have those executive roles and requisite degree of control over what’s happening on the ground are going to be exposed,” he said.
“The bigger the entity, the harder it is practically going to be to show that element of causation, that something that was done or not done caused the fatality. The closer you are to what’s being done on the ground, the more likely you are going to be shown to have caused the outcome.”
“When you’re looking at this type of offence, it’s not just policies and procedures that are going to be considered. What [the judges will] be looking at is around decisions that are made on whether to do something or to not do something.”
For more information about the amendments to industrial manslaughter offences under Queensland’s resources legislation, visit the McCullough Robertson Lawyers website.