Work Health and Safety Amendment Act 2021 (ACT)
Work Health and Safety Amendment Act 2021
A2021-19
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
4 Duty of officersSection 27 (2) 2
5 New division 2.6 3
6 Regulator may accept WHS undertakingsSection 216 (2) 5
7 Procedure if prosecution is not broughtSection 231 (1) (a) 5
8 Section 231 (3) 5
9 Limitation period for prosecutionsNew section 232 (3) 6
10 Dictionary, new definition of industrial manslaughter offence 6
Schedule 1 Consequential amendments 7
Part 1.1 Bail Act 1992 7
Part 1.2 Crimes Act 1900 7
Part 1.3 Crimes (Sentence Administration) Act 2005 9
Part 1.4 Supreme Court Act 1933 10
Work Health and Safety Amendment Act 2021
A2021-19
An Act to amend the Work Health and Safety Act 2011, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Name of Act
This Act is the Work Health and Safety Amendment Act 2021.
Commencement
This Act commences 3 months after its notification day.
NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Legislation amended
This Act amends the Work Health and Safety Act 2011.
NoteThis Act also amends the following legislation (see sch 1):
· Bail Act 1992
· Crimes Act 1900
· Crimes (Sentence Administration) Act 2005
· Supreme Court Act 1933.
Duty of officers
Section 27 (2)after
division 2.5 (Offences and penalties)
insert
or division 2.6 (Industrial manslaughter)
New division 2.6
insert
Division 2.6 Industrial manslaughter
34AIndustrial manslaughter
(1)A person commits an offence if—
(a)the person conducts a business or undertaking, or is an officer of a person who conducts a business or undertaking; and
(b)the person has a health and safety duty; and
(c)the person engages in conduct; and
(d)the conduct results in a breach of the health and safety duty; and
(e)the conduct causes—
(i)the death of a worker; or
(ii)an injury to a worker and the injury later causes the death of the worker; or
(iii)the death of another person; and
(f)the person is reckless or negligent about causing the death of the worker or other person by the conduct.
Maximum penalty:
(a)in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—imprisonment for 20 years; or
(b)in the case of an offence committed by a body corporate—$16 500 000.
NoteSee s 244 and s 245 for imputing conduct to a body corporate or the Territory.
(2)Strict liability only applies to subsection (1) (a) and (b).
NoteSubsection (2) displaces s 12A which states that strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.
(3)An offence against this section is declared to be an indictable offence.
NoteAn indictable offence is an offence punishable by imprisonment for longer than 2 years or an offence declared by an ACT law to be an indictable offence (see Legislation Act, s 190 (1)).
(4)In this section:
causes death—a person’s conduct causes death if the conduct substantially contributes to the death.
health and safety duty means a duty imposed under—
(a)division 2.2 (Primary duty of care); or
(b)division 2.3 (Further duties of persons conducting businesses or undertakings); or
(c)section 27 (Duty of officers).
34BAlternative verdict for industrial manslaughter
(1)This section applies if, in a prosecution for an industrial manslaughter offence, the trier of fact—
(a)is not satisfied beyond reasonable doubt that the defendant committed an industrial manslaughter offence; and
(b)is satisfied beyond reasonable doubt that the defendant committed an alternative offence.
(2)The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt.
(3)In this section:
alternative offence, for an industrial manslaughter offence, means a category 1 offence or a category 2 offence.
Regulator may accept WHS undertakings
Section 216 (2)substitute
(2)However, a WHS undertaking cannot be accepted for a contravention or alleged contravention of—
(a)a category 1 offence; or
(b)an industrial manslaughter offence.
Procedure if prosecution is not brought
Section 231 (1) (a)omit
or a category 2 offence;
substitute
, a category 2 offence or an industrial manslaughter offence;
Section 231 (3)
omit
a category 1 or category 2 offence
substitute
a category 1 offence, a category 2 offence or an industrial manslaughter offence
Limitation period for prosecutions
New section 232 (3)insert
(3)This section does not apply to a proceeding for an industrial manslaughter offence.
Dictionary, new definition of industrial manslaughter offence
insert
industrial manslaughter offence means an offence against section 34A (Industrial manslaughter).
Schedule 1Consequential amendments
(see s 3)
Part 1.1Bail Act 1992
[1.1]Schedule 1, part 1.1, items 3 and 4
omit
[1.2]Schedule 1, new part 1.7
insert
Part 1.7Offence against Work Health and Safety Act 2011
| column 1 item | column 2 provision | column 3 description of offence |
| 1 | 34A | industrial manslaughter |
Part 1.2Crimes Act 1900
[1.3]Section 7A, note 1
omit
· s 49C (Industrial manslaughter—employer offence)
· s 49D (Industrial manslaughter—senior officer offence)
[1.4]Part 2A
omit
[1.5]Dictionary, definitions of agent and causes
omit
[1.6]Dictionary, definition of conduct
substitute
conduct, for part 13 (Unfitness to plead and mental impairment)—see the Criminal Code, section 13.
[1.7]Dictionary, definitions
omit the definitions of
death
employee
employer
government
government entity
independent contractor
[1.8]Dictionary, definition of officer
substitute
officer, in relation to a body corporate or public company, includes a person who has been appointed or who acts as an auditor of the body corporate or public company.
[1.9]Dictionary, definitions
omit the definitions of
outworker
provide services
senior officer
serious harm
volunteer
worker
Part 1.3Crimes (Sentence Administration) Act 2005
[1.10]Section 161B, definition of serious violent offence, par (a)
substitute
(a)either of the following provisions punishable by a maximum term of imprisonment of 10 years or more:
(i)the Crimes Act 1900, part 2 (Offences against the person);
(ii)the Work Health and Safety Act 2011, section 34A (Industrial manslaughter); or
Part 1.4Supreme Court Act 1933
[1.11]Schedule 2, section 2.1, new definition of Work Safety Act
before the note, insert
Work Safety Act means the Work Health and Safety Act 2011.
[1.12]Schedule 2, part 2.2, items 6 and 7
omit
[1.13]Schedule 2, part 2.2, new item 35
insert
| 35 | Work Safety Act | 34A | industrial manslaughter |
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 24 June 2021.
Notification
Notified under the Legislation Act on 11 August 2021.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Work Health and Safety Amendment Bill 2021, which was passed by the Legislative Assembly on 5 August 2021.
Clerk of the Legislative Assembly
© Australian Capital Territory 2021
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