Wednesday 4 December 2019

New Victorian workplace manslaughter offences

Victoria now joins the Australian Capital Territory and Queensland in having specific health and safety manslaughter laws in place.  On 26 November 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 was passed, without amendment, by the Victorian Legislative Council and will commence operation by 1 July 2020.

This legislation creates two offences of workplace manslaughter in the Occupational Health and Safety Act 2004 (OHS Act) for the following duty-holders:

  • a person (which includes Victorian public sector bodies) who is not a volunteer.
  • a person who is an officer of an applicable entity, who is not a volunteer.

These offences have significant implications for both employers and officers.

A body corporate found to have negligently caused the death of an employee or member of the public will face fines of up to $16.5 million, and individuals will face up to 20 years in jail.

What constitutes 'workplace manslaughter'?

The new offences provides that employers, self-employed people and officers of the employers must not engage in conduct that:

(a) is criminally negligent; and

(b) constitutes a breach of an applicable duty that the person owes to another person; and

(c) causes the death of a person at or near a workplace.

An entity is an applicable entity if it is a body corporate or an unincorporated body or association or a partnership.  As such, it will also apply to the Crown and Victorian public sector bodies.

Key takeaways

  • two new offences of workplace manslaughter will commence operation in the OHS Act from 1 July 2020, at the latest.
  • the new offences will be not able to be determined in the Magistrates' Court.
  • WorkSafe Victoria will investigate the new offences of workplace manslaughter using their existing powers under the OHS Act.  
  • the privilege of self-incrimination will be able to be claimed by an individual.
  • volunteers and employees who are not 'officers' cannot be charged with workplace manslaughter under the OHS Act.
  • there will be no statutory time limit within which WorkSafe can bring a charge of workplace manslaughter.
  • the new offences will capture all types of workplace risks that cause death, including mental health risks and long-term occupational diseases.  For example, a suicide that is the direct result of negligent workplace practices and policies that substantially contribute to the death may constitute workplace manslaughter.
  • the Andrews Government has committed a $10 million package to boost WorkSafe Victoria's ability to investigate and prosecute workplace manslaughter offences.

The VGSO Occupational Safety Team provides advice and conducts litigation in relation to all aspects of Victorian public sector occupational health and safety.  In particular, the Occupational Safety Team can provide advice and training to Victorian public sector bodies on their rights and obligations as a result of the introduction of these new workplace manslaughter offences.

To find out more contact:

Jodie Burns
Managing Principal Solicitor
Victorian Government Solicitor's Office

Harry Kinkead
Senior Solicitor
Victorian Government Solicitor's Office

Tuesday 3 December 2019

VCAT confirms scope of data security obligations when serving documents

A recent VCAT decision found that privacy obligations with respect to court or tribunal documents that are served on a party cease upon valid service, even if the recipient refuses to accept service and abandons the documents.

On 1 December 2017, police officers attended Mr Zeqaj's workplace to serve him with documents on behalf of the Australian Taxation Office.  When Mr Zeqaj refused to accept service, the police officers placed the documents down in his presence and left.  Mr Zeqaj alleged that by serving him at his workplace and by leaving the documents unattended, Victoria Police contravened Information Privacy Principle (IPP) 4.1, which provides that an organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

VCAT found that Victoria Police had not contravened IPP 4.1 because the disclosure was authorised.  Victoria Police had collected the personal information for the purpose of serving it on Mr Zeqaj, and had effected service by identifying Mr Zeqaj and giving him 'ready and unimpeded means of exercising physical custody or control' over the documents.  Once the documents had been served, Victoria Police no longer 'held' the information within the meaning of IPP 4.1 and any unauthorised access from that point was a result of Mr Zeqaj's decision not to take possession of the documents.

VCAT also found that it did not have jurisdiction to consider Mr Zeqaj's claim that his rights under the Charter of Human Rights and Responsibilities Act 2006 had been breached because the claim had not been included in the original complaint to the Information Commissioner, or in the referral from the Commissioner to VCAT.

Contact us: 

Louise McNeil
Senior Solicitor

Catherine Roberts
Lead Counsel

Case: Zeqaj v Victoria Police (Human Rights) [2019] VCAT 1641