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Legislative Assembly for the ACT: 2002 Week 14 Hansard (12 December) . . Page.. 4382 ..

MR CORBELL (continuing):

These duties of care are well established through occupational health and safety legislation and through the common law. There are, however, significant problems in prosecuting employers under existing manslaughter laws, as many people are employed by corporations. At common law, a corporation is a legal person and may be prosecuted for a criminal offence to the same extent as a natural person. However, because it does not have a physical existence, a corporation can only commit an offence through its directors or employees.

In order to attribute the required state of mind and conduct to a corporation, the common law has fashioned principles of liability. Before a corporation can be found criminally responsible, an individual director or employee must be identified as the directing mind and will of the corporation and have, in effect, committed the offence. This generally requires proof of fault by a top-level manager or director and has been difficult to establish in the case of large corporations, where offences are generally only visible at the middle-management level.

Mr Speaker, the reality is that the handful of common law prosecutions of corporate employers for manslaughter that have been attempted in Australia have failed or have been ineffective. Nor do statutory criminal offences in the ACT assist. Under the Crimes Act at the moment, the only penalty currently for manslaughter is imprisonment. This penalty cannot be applied to many employers because it is not possible to imprison a corporation. It is possible to prosecute corporations for breaches of duties of care under the Occupational Health and Safety Act, but the government does not believe that it is appropriate to rely solely on these offences, which have comparatively low penalties, where an employer has caused the death of a worker.

Mr Speaker, this issue is not unique to the territory. Many other Australian governments are dealing with the issue of how to ensure corporate employers can be held responsible where their actions or conduct resulted in the death of a worker. The Victorian government attempted to legislate in this area in 2001, but the legislation was blocked by a hostile upper house.

Western Australia has conducted a wide-ranging independent review of its occupational health and safety law. The report of this review was handed down at the end of November. It calls attention to the strong community concern over the apparent lack of accountability of directors and senior officers, and recommends higher penalties for bodies corporate and senior officers, including imprisonment where duties of care have been breached through gross negligence resulting in a serious injury or death. Even the federal government has introduced legislation to ensure that senior officers of its departments can be held criminally liable where their conduct causes the death of a Commonwealth employee.

Mr Speaker, the Crimes (Industrial Manslaughter) Bill will address the situation in the ACT by establishing two new industrial manslaughter offences-one for employers and one for senior officers of employers. The employer offence is applicable to all employers, including corporate bodies. An employer will commit an offence where their reckless or negligent conduct causes the death of a worker.

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