Manslaughter Laws have the potential to change community attitudes around criminally reckless negligence at work says ACTU Assistant Secretary Richard Marles.
A friend of mine who is a criminal Barrister said that the hardest cases that he used to deal with in terms of the impact upon the criminal were culpable driving cases. This is because the kinds of people convicted for culpable driving never imagined that they would ever end up in jail. They were not hardened criminals and in every other aspect of their lives they were law-abiding citizens. And so going to jail was simply beyond the parameters of their existence.
And yet in this one area – culpable driving – they were prepared to break the law. The reason for this, I believe, is that the community viewed culpable driving differently. No one regarded it as good behaviour, but no one really regarded it as criminal behaviour either.
So the culpable driving laws were brought in around Australia to try and tackle this community perception about culpable driving. The result in terms of the decline in the road toll has been significant. In 1970, 3,900 Australians died on our roads. In the 12 months to March this year 1,634 people died on our roads.
No one would say now that the culpable driving law wasn’t a critical piece in the strategy of the campaign to reduce the road toll. It wasn’t the whole campaign but it was a significant part. What it did was bring into line the penalty with the severity of the incident. People were dying as a result of this behaviour. And so they started to send people to jail because of this behaviour. The result was that community attitudes were significantly changed.
I believe that attitudes around industrial manslaughter are similar to those which used to pervade around culpable driving. Behaviour which may be criminally reckless by employers is tended to be viewed differently to other crimes even though it is just as unlawful.
There are very small penalties associated with workplace deaths. I had a quick scan of the penalties that had been imposed on companies this year where there has been a workplace death. I hastened to say that not all these companies would necessarily be found guilty under an industrial manslaughter law. However, it does give us a sense of the ball park of penalties currently imposed when this kind of incident occurs.
When a man was buried under a load of logs which had fallen off a semi trailer the Victorian trucking company, Caldwell and Pither Pty Ltd, was penalised $20,000.
In Queensland when a man was fatally injured using a power saw Chevron Construction Company Pty Ltd was fined $37,500.
In NSW when a four wheel drive overturned, rolled down a hill and an employee in the car – not wearing a seat belt – was killed a number of companies including Nowra Truck and Farm Equipment Pty Ltd were fined a total of $162,000.
And finally in NSW again there was a case involving Steggles and Network Production Personnel Pty Ltd where a driver without appropriate training was crushed by a tractor. In that case a total of $376,250 was imposed in penalties. Now this may seem a significant amount of money. However, it is worth noting that the $159,250 which was the fine that was imposed on Steggles is the equivalent of 0.025 of one percent of the annual revenue of the parent company of Steggles. In other words even that amount was a flea-bite.
The point of running through that list is to say that the penalties currently imposed when somebody dies at work simply do not befit the severity of the incident.
While there is a comparable side to the situation of workplace deaths and the road toll there are some senses in which these two are not similar.
About 4,500 Australians die as a result of their work every year, more than has ever been killed on our roads. Workplace death is a far bigger issue than our road toll.
Workplace death is also far less visible. Most people who die as a result of their work do so quietly in a hospital many years after having being exposed to some hazardous material. In the case of asbestos it may be decades later. But even where you have a traumatic incident they occur behind closed doors in the privacy of a factory, rather than in full public view on our roads.
That workplace death is a bigger issue than the road toll and yet at the same time is a more silent issue than the road toll only adds in my mind for the need for cultural change in community attitudes around criminal negligence which causes death at work. All of this is a reason for the institution of Industrial Manslaughter Laws.
There seems to be a fair degree of hysteria about what the law actually means. All it does is make specific what is currently criminal conduct anyway. A person right now who engages in negligence to a criminal standard causing death in the workplace is guilty of manslaughter without the existence of the Industrial Manslaughter Law. The law simply describes that situation specifically.
However, the Industrial Manslaughter Law does increase the penalties that can be imposed upon corporations who are deemed to have engaged in industrial manslaughter. It allows penalties for these companies, in effect, of up to $5 million.
In cultural terms what the Industrial Manslaughter Laws do is make the penalties clearly befit the severity of the incident. Like culpable driving laws these laws can be a critical piece in the puzzle of reducing workplace deaths. Like the culpable driving laws, Industrial Manslaughter Laws have the potential to change community attitudes around criminally reckless negligence at work. And just like culpable driving laws the Industrial Manslaughter Laws have the potential to reduce workplace deaths significantly.
Address by ACTU Assistant Secretary Richard Marles to the Industrial Manslaughter 2004 Conference
Canberra 29 April 2004.