Industrial Manslaughter laws are becoming the norm around Australia with states and territories adopting the new legislation. ACT, VIC, QLD and WA have all enacted specific industrial manslaughter offences.

However, New South Wales has notably adopted a different approach, instead of introducing a specific industrial manslaughter offence, they have taken the opportunity to bolster existing WHS legislation.

The Work Health and Safety Amendment (Review) Bill 2020 (NSW) is now operating and draws from the recommendations made in the national review of WHS laws (the 2019 Boland Review). It also includes a raft of changes aimed at addressing many concerns in the existing WHS legal framework.

There are few major changes to the Work Health and Safety Act 2011. These are:

Enhancement of Category 1 Offences

A major change is the new requirement of “gross negligence” to prove a category 1 offence. This means that “gross negligence” liability may now be proven where someone was owed a duty of care and the conduct that breached this duty exposed them to a risk of “death, serious injury or illness”.

This element joins the existing liability that is triggered by “reckless” conduct.

The addition of “gross negligence” is intended to overcome some of the challenges that lie in making out a category 1 offence on the basis of “recklessness”. These challenges include the difficulties in demonstrating evidence of foresight of possible risks and/ or conscious wrongdoing.

Prohibition of Insurance Arrangements

Entities cannot insure against paying WHS fines.

Increased Penalty Amounts

Maximum penalties for all categories of offences have been increased.

Not to mention, the Penalty Unit System has been re-introduced where the unit value will be re-calculated annually against the Consumer Price Index (CPI).

Other changes have been made to the legislation and the full list can be viewed on SafeWork NSW’s website here:

SafeWork NSW

"Gross Negligence" and NSW WHS liability