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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL CODE AMENDMENT (INDUSTRIAL MANSLAUGHTER) BILL 2017

                   Western Australia


 Criminal Code Amendment (Industrial
       Manslaughter) Bill 2017

                       Contents

1.   Short title                                               2
2.   Code amended                                              2
3.   Chapter XXVIIIA inserted                                  2
     Chapter XXVIIIA -- Industrial manslaughter
     291A.    Terms used                                  2
     291B.    Industrial manslaughter by employer         4
     291C.    Industrial manslaughter by senior officer   4
     291D.    Orders that may be made against
              convicted body corporate                    5




                          11--1                                page i
                           Western Australia


                      LEGISLATIVE COUNCIL

             (Introduced by Hon Ms Alison Xamon, MLC)


       Criminal Code Amendment (Industrial
             Manslaughter) Bill 2017

                               A Bill for


An Act to amend The Criminal Code.



The Parliament of Western Australia enacts as follows:




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     Criminal Code Amendment (Industrial Manslaughter) Bill 2017



     s. 1




1    1.        Short title
2              This is the Criminal Code Amendment (Industrial
3              Manslaughter) Act 2017.
4              Note: Under the Interpretation Act 1984 section 20(2), this Act comes into
                                        th
5                    operation on the 28 day after the day on which it receives the Royal
6                    Assent.

7    2.        Code amended
8              This Act amends The Criminal Code.

9    3.        Chapter XXVIIIA inserted
10             After Chapter XXVIII insert:
11


12            Chapter XXVIIIA -- Industrial manslaughter
13          291A.    Terms used
14             (1)   A term has the same meaning in this Chapter as it has
15                   in the Occupational Safety and Health Act 1984, unless
16                   the contrary intention appears in this Chapter.
17             (2)   In this Chapter --
18                   cause, in relation to a death, means to cause or
19                   substantially contribute to the death;
20                   conduct means an act or an omission to do an act;
21                   officer, of a body corporate, has the meaning given by
22                   the Corporations Act 2001 (Commonwealth) section 9;
23                   public authority means --
24                     (a) a Minister of the Crown acting in the Minister's
25                           official capacity; or
26                     (b) a State Government department, State trading
27                           concern, State instrumentality or State agency;
28                           or


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     Criminal Code Amendment (Industrial Manslaughter) Bill 2017



                                                                 s. 3



1        (c)   any other body or person, whether corporate or
2              not and including a local government, that
3              under a written law administers or carries on a
4              social service or public utility for the benefit of
5              the State or a part of the State;
6      senior officer, of an employer, means --
7        (a) if the employer is a public authority -- any of
8              the following --
9                 (i) the Minister of the Crown concerned or
10                     to whom the administration of the
11                     public authority has been committed by
12                     the Governor;
13               (ii) a person occupying a position of chief
14                     executive officer (however described) in
15                     the public authority in relation to the
16                     functions exercised by the authority;
17              (iii) a person occupying an executive
18                     position (however described) in the
19                     public authority who makes, or takes
20                     part in making, decisions affecting all,
21                     or a substantial part, of the functions
22                     exercised by the authority;
23       (b) if the employer is a body corporate but not a
24             public authority -- an officer of the body
25             corporate; or
26       (c) if the employer is another entity -- any of the
27             following --
28                (i) a person occupying an executive
29                     position (however described) in relation
30                     to the entity who makes, or takes part in
31                     making, decisions affecting all, or a
32                     substantial part, of the functions
33                     exercised by the entity;



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1                            (ii)   a person who would be an officer of the
2                                   entity if the entity were a body
3                                   corporate.

4           291B.   Industrial manslaughter by employer
5                   An employer is guilty of a crime and is liable to
6                   imprisonment for life if --
7                     (a) an employee of the employer --
8                            (i) dies in the course of employment by, or
9                                 providing services to, or in relation to,
10                                the employer; or
11                          (ii) is injured in the course of employment
12                                by, or providing services to, or in
13                                relation to, the employer and later dies;
14                         and
15                    (b) the employer's conduct causes the death of the
16                         employee; and
17                    (c) the employer --
18                           (i) knew the conduct would be likely to
19                                cause the death of, or serious harm to,
20                                the employee; but
21                          (ii) acted, or failed to act, in disregard of
22                                that likelihood.

23          291C.   Industrial manslaughter by senior officer
24                  A senior officer of an employer is guilty of a crime and
25                  is liable to imprisonment for life if --
26                    (a) an employee of the employer --
27                             (i) dies in the course of employment by, or
28                                  providing services to, or in relation to,
29                                  the employer; or




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1                       (ii)   is injured in the course of employment
2                              by, or providing services to, or in
3                              relation to, the employer and later dies;
4                      and
5               (b)    the senior officer's conduct causes the death of
6                      the employee; and
7                (c)   the senior officer --
8                         (i) knew the conduct would be likely to
9                              cause the death of, or serious harm to,
10                             the employee; but
11                       (ii) acted, or failed to act, in disregard of
12                             that likelihood.

13   291D.     Orders that may be made against convicted body
14             corporate
15     (1)     In this section --
16             Commissioner means the person holding the office of
17             WorkSafe Western Australia Commissioner under the
18             Occupational Safety and Health Act 1984 section 9.
19     (2)     This section applies if a court convicts a body
20             corporate of an offence against section 291B.
21     (3)     In addition to any other penalty the court may impose
22             on the body corporate, the court may order the body
23             corporate to do one or more of the following --
24               (a) to take any action specified by the court to
25                     publicise --
26                        (i) the offence; and
27                       (ii) the deaths or serious injuries or other
28                             consequences resulting from or related
29                             to the conduct from which the offence
30                             arose; and
31                      (iii) any penalties imposed, or other orders
32                             made, because of the offence;

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1                    (b)    to take any action specified by the court to
2                           notify one or more specified persons of the
3                           matters specified under paragraph (a);
4                     (c)   to undertake a project specified by the court for
5                           the general improvement of occupational safety
6                           and health within the period specified in the
7                           order.
8             (4)   In making an order under subsection (3), the court --
9                     (a) may specify a period within which the body
10                         corporate must comply with the order; and
11                    (b) may impose any other requirement that it
12                         considers necessary or desirable for
13                         enforcement of the order or to make the order
14                         effective.
15            (5)   The total cost to the body corporate, in relation to a
16                  single offence, of --
17                    (a) any fine imposed for the offence; and
18                    (b) complying with any order or orders made under
19                          this section in relation to the offence,
20                  must not exceed $5 000 000.
21            (6)   If the court decides to make an order under
22                  subsection (3), it must, in determining the kind of
23                  order, take into account, so far as practicable, the
24                  financial circumstances of the body corporate and the
25                  nature of the burden that compliance with the order
26                  would impose.
27            (7)   The court is not prevented from making an order under
28                  subsection (3) only because it has been unable to find
29                  out the financial circumstances of the body corporate.
30            (8)   If a body corporate fails, without reasonable excuse, to
31                  comply with an order made under subsection (3)(a)
32                  or (b) within the specified period (if any), the court, on


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1             an application made by the Commissioner, may order
2             the Commissioner --
3               (a) to do anything that is necessary or convenient
4                     to carry out any action that remains to be done
5                     under the order made against the body
6                     corporate and that it is still practicable to carry
7                     out; and
8               (b) to publicise the failure of the body corporate to
9                     comply with the order.
10    (9)     Subsection (8) does not prevent contempt of court
11            proceedings from being commenced or continued
12            against a body corporate that has failed to comply with
13            an order made under this section.
14   (10)     The Commissioner's reasonable costs of complying
15            with an order made under subsection (8) are a debt
16            owed to the State by the body corporate concerned.
17


18




 


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