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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Workplace Safety Legislation Amendment
(Workplace Manslaughter and Other Matters)
Bill 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Workplace manslaughter 3
Division 1--Amendments to Occupational Health and Safety
Act 2004 3
3 New Part 5A inserted 3
4 New Part 9A inserted 8
5 Limitation period for prosecutions 10
6 Liability of officers of bodies corporate 10
7 Liability of officers of partnerships and unincorporated bodies
and associations 11
8 New Division 2 of Part 15 inserted 11
Division 2--Consequential amendments to other Acts 12
9 Crimes Act 1958 12
10 Criminal Procedure Act 2009 13
Part 3--Board of Management of Victorian WorkCover Authority 14
11 Chief Executive Officer 14
12 Constitution of Board 14
13 Chairperson 14
14 New section 623M inserted 14
Part 4--Repeal of this Act 15
15 Repeal of this Act 15
═════════════
Endnotes 16
1 General information 16
591078B.I-29/10/2019 i BILL LA INTRODUCTION 29/10/2019
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Workplace Safety Legislation
Amendment (Workplace Manslaughter
and Other Matters) Bill 2019
A Bill for an Act to amend the Occupational Health and Safety
Act 2004 to provide for offences of workplace manslaughter and to
provide for the establishment of the Workplace Incidents Consultative
Committee, to amend the Workplace Injury Rehabilitation and
Compensation Act 2013 in relation to the Board of Management of
the Victorian WorkCover Authority and to make consequential
amendments to certain other Acts and for other purposes.
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Occupational Health and
5 Safety Act 2004--
(i) to provide for offences of workplace
manslaughter; and
591078B.I-29/10/2019 1 BILL LA INTRODUCTION 29/10/2019
Workplace Safety Legislation Amendment (Workplace Manslaughter and
Other Matters) Bill 2019
Part 1--Preliminary
(ii) to provide for the establishment of the
Workplace Incidents Consultative
Committee; and
(b) to make consequential amendments to other
5 Acts in relation to workplace manslaughter;
and
(c) to amend the Workplace Injury
Rehabilitation and Compensation
Act 2013 in relation to the Board of
10 Management of the Victorian WorkCover
Authority.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
15 (2) If a provision of this Act does not come into
operation before 1 July 2020, it comes into
operation on that day.
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Workplace Safety Legislation Amendment (Workplace Manslaughter and
Other Matters) Bill 2019
Part 2--Workplace manslaughter
Part 2--Workplace manslaughter
Division 1--Amendments to Occupational Health
and Safety Act 2004
3 New Part 5A inserted
5 After Part 5 of the Occupational Health and
Safety Act 2004 insert--
"Part 5A--Workplace
manslaughter
Division 1--Preliminary
10 39A Objects of Part 5A
The objects of this Part are--
(a) to prevent workplace deaths; and
(b) to deter persons who owe certain duties
under Part 3 from breaching those
15 duties; and
(c) to reflect the severity of conduct that
places life at risk in the workplace.
39B Definitions
In this Part--
20 applicable duty means a duty imposed by a
provision of Part 3 other than--
(a) the duty imposed by section 25; or
(b) a duty imposed by section 32 on a
person who is an employee, but
25 not an officer, at the workplace in
relation to which the duty is
imposed;
conduct has the meaning given in
section 39C;
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
constitute a breach of an applicable duty
has the meaning given in section 39D;
negligent has the meaning given in
section 39E;
5 owes an applicable duty to another person
has the meaning given in section 39F.
39C What does conduct mean?
(1) For the purposes of this Part, conduct
means--
10 (a) an act; or
(b) an omission to perform an act.
(2) An omission to perform an act on or after the
commencement of this Part is conduct for
the purposes of this Part regardless of
15 whether an occasion for performing that act
arose before that commencement.
39D When may conduct constitute a breach of
an applicable duty?
Conduct may constitute a breach of an
20 applicable duty for the purposes of this
Part--
(a) whether or not any other conduct also
contributed to the breach; and
(b) whether or not any proceeding has been
25 commenced in respect of that breach.
39E When is conduct negligent?
(1) Conduct is negligent for the purposes of this
Part if it involves--
(a) a great falling short of the standard of
30 care that would have been taken by a
reasonable person in the circumstances
in which the conduct was engaged in;
and
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
(b) a high risk of--
(i) death; or
(ii) serious injury; or
(iii) serious illness.
5 (2) In determining whether conduct engaged in
by a body corporate is negligent for the
purposes of this Part--
(a) what matters is the conduct engaged in
by the body corporate itself; and
10 (b) it does not matter whether the conduct
is, or is not, conduct imputed to the
body corporate under section 143; and
(c) it does not matter whether any of the
body corporate's officers were involved
15 in all or any part of the conduct; and
(d) the standard to be applied under
subsection (1)(a) is the standard of care
that would have been taken by a
reasonable body corporate in the
20 circumstances in which the conduct
was engaged in.
39F When does a person owe an applicable
duty to another person?
(1) A person (A) owes an applicable duty to
25 another person (B) for the purposes of this
Part if--
(a) Part 3 imposes an applicable duty on A;
and
(b) it is either explicit or implicit that B is a
30 person to whom the duty is owed.
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
(2) It is explicit that B is a person to whom the
duty is owed if--
(a) the provision that imposes the duty
expressly specifies the class of
5 person--
(i) to whom the duty is owed; or
(ii) for whose benefit A must perform
the duty; and
(b) B belongs to that class.
10 (3) It is implicit that B is a person to whom the
duty is owed if--
(a) the provision that imposes the duty
does not expressly specify the class of
person--
15 (i) to whom the duty is owed; or
(ii) for whose benefit A must perform
the duty; and
(b) the purpose of that provision is to
ensure the health and safety of persons
20 of a particular class; and
(c) B belongs to that class.
Division 2--Offences
39G Workplace manslaughter
(1) A person who is not a volunteer must not
25 engage in conduct that--
(a) is negligent; and
(b) constitutes a breach of an applicable
duty that the person owes to another
person; and
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
(c) causes the death of that other person.
Penalty: Imprisonment for 20 years for a
natural person;
100 000 penalty units for a body
5 corporate.
(2) A person who is an officer of an applicable
entity, and who is not a volunteer, must not
engage in conduct that--
(a) is negligent; and
10 (b) constitutes a breach of an applicable
duty that the entity owes to another
person; and
(c) causes the death of that other person.
Penalty: Imprisonment for 20 years.
15 (3) An entity is an applicable entity for the
purposes of subsection (2)--
(a) if it is--
(i) a body corporate; or
(ii) an unincorporated body or
20 association; or
(iii) a partnership; and
(b) whether or not it represents the Crown.
(4) An offence against subsection (1) or (2) is an
indictable offence.
25 Note
Unlike other indictable offences in this Act, these
offences cannot be heard and determined summarily,
as section 28 of the Criminal Procedure Act 2009
does not apply to them.".
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Part 2--Workplace manslaughter
4 New Part 9A inserted
After Part 9 of the Occupational Health and
Safety Act 2004 insert--
"Part 9A--Workplace Incidents
5 Consultative Committee
126A Establishment of Workplace Incidents
Consultative Committee
(1) The Minister must, in accordance with the
regulations, establish a Workplace Incidents
10 Consultative Committee.
(2) The function of the Committee is to provide
advice and make recommendations to the
Minister about--
(a) the needs of persons who are affected,
15 directly or indirectly, by incidents
that--
(i) occur at a workplace; and
(ii) involve death, serious injury or
serious illness; and
20 (b) the development, review and
improvement of policies, practices,
strategies and systems relating to--
(i) the incidents referred to in
paragraph (a); or
25 (ii) occupational health and safety
more generally.
(3) The Committee is to perform its function in
accordance with the regulations.
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
(4) Without limiting the generality of
section 158, the regulations may make
provision for or with respect to--
(a) the appointment of members of the
5 Committee, including--
(i) the number of members; and
(ii) subject to subsection (5), the
experience or qualifications of
members; and
10 (iii) the terms and conditions on which
members are appointed; and
(iv) the remuneration, allowances and
expenses of members; and
(b) the procedure of the Committee.
15 (5) Regulations providing for the experience or
qualifications of the members of the
Committee must require that a majority of
members be persons who have been affected,
directly or indirectly, by incidents that--
20 (a) occur at a workplace; and
(b) involve death, serious injury or serious
illness.
126B Annual report
(1) The Workplace Incidents Consultative
25 Committee established under section 126A
may give the Minister a written report about
the Committee's operations during a
particular financial year.
(2) On receiving a report under subsection (1),
30 the Minister must cause the report to be laid
before each House of the Parliament within
14 sitting days of that House.".
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
5 Limitation period for prosecutions
(1) In section 132(1) of the Occupational Health
and Safety Act 2004, after "an indictable offence
against this Act" insert "(other than a workplace
5 manslaughter offence)".
(2) In section 132(2) of the Occupational Health
and Safety Act 2004, after "an indictable offence"
insert "against this Act (other than a workplace
manslaughter offence)".
10 (3) After section 132(2) of the Occupational Health
and Safety Act 2004 insert--
"(3) A proceeding for a workplace manslaughter
offence may be brought at any time.
(4) In this section--
15 workplace manslaughter offence means--
(a) an offence against section 39G(1)
or (2);
(b) an offence against section 144(1)
arising in respect of a
20 contravention against
section 39G(1).".
6 Liability of officers of bodies corporate
In section 144(1) of the Occupational Health
and Safety Act 2004, for "liable to a fine not
25 exceeding the maximum fine for an offence
constituted by a contravention by a natural person
of the provision contravened by the body
corporate." substitute "liable to--
(a) if the provision contravened was
30 section 39G(1), a fine not exceeding
10 000 penalty units; or
(b) otherwise, a fine not exceeding the
maximum fine for an offence constituted by
a contravention by a natural person of the
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
provision contravened by the body
corporate.".
7 Liability of officers of partnerships and
unincorporated bodies and associations
5 For section 145(3) of the Occupational Health
and Safety Act 2004 substitute--
"(3) The penalty to which an officer of a
partnership or an unincorporated body or
association is liable for an offence
10 committed by the officer because of the
effect of subsection (1) is--
(a) if the offence is against section 39G(1),
a fine not exceeding 10 000 penalty
units; or
15 (b) otherwise, a fine not exceeding the
maximum fine that could be imposed
by a court on a natural person found
guilty of the same offence committed at
the same time (otherwise than because
20 of the effect of subsection (1)).".
8 New Division 2 of Part 15 inserted
After Division 1 of Part 15 of the Occupational
Health and Safety Act 2004 insert--
"Division 2--Workplace Safety
25 Legislation Amendment (Workplace
Manslaughter and Other Matters)
Act 2019
187 Workplace manslaughter
(1) Part 5A as inserted by Part 2 of the amending
30 Act applies to offences alleged to have been
committed on or after that insertion.
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
(2) If an offence against section 39G(1) or (2) is
alleged to have been committed between
2 dates, one before and one after the
insertion of Part 5A, it is alleged to have
5 been committed before that insertion.
(3) If an offence against section 144(1) arising in
respect of a contravention of section 39G(1)
is alleged to have been committed between
2 dates, one before and one after the
10 insertion of Part 5A, it is alleged to have
been committed before that insertion.
(4) In this section--
amending Act means the Workplace Safety
Legislation Amendment (Workplace
15 Manslaughter and Other Matters)
Act 2019.".
Division 2--Consequential amendments to other
Acts
9 Crimes Act 1958
20 In Schedule 9 to the Crimes Act 1958, after
item 35 insert--
"35A An offence against section 39G(1) or (2) of
the Occupational Health and Safety
Act 2004 (workplace manslaughter).
25 35B An offence against section 144(1) of the
Occupational Health and Safety Act 2004
arising in respect of a contravention of
section 39G(1) of that Act (workplace
manslaughter--liability of officers of bodies
30 corporate).".
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Other Matters) Bill 2019
Part 2--Workplace manslaughter
10 Criminal Procedure Act 2009
After section 327M(2)(f) of the Criminal
Procedure Act 2009 insert--
"(fa) workplace manslaughter (section 39G(1)
5 or (2) of the Occupational Health and
Safety Act 2004);
(fb) an offence against section 144(1) of the
Occupational Health and Safety Act 2004
arising in respect of a contravention of
10 section 39G(1) of that Act;".
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Other Matters) Bill 2019
Part 3--Board of Management of Victorian WorkCover Authority
Part 3--Board of Management of Victorian
WorkCover Authority
11 Chief Executive Officer
For section 498(2) of the Workplace Injury
5 Rehabilitation and Compensation Act 2013
substitute--
"(2) A Director is ineligible to be appointed as
the Chief Executive Officer.".
12 Constitution of Board
10 At the end of section 503 of the Workplace
Injury Rehabilitation and Compensation
Act 2013 insert--
"(2) The Chief Executive Officer is ineligible to
be appointed as a Director.".
15 13 Chairperson
In section 509(1) of the Workplace Injury
Rehabilitation and Compensation Act 2013, for
"Directors, other than the Chief Executive,"
substitute "Directors".
20 14 New section 623M inserted
After section 623L of the Workplace Injury
Rehabilitation and Compensation Act 2013
insert--
"623M Transitional provision--Workplace Safety
25 Legislation Amendment (Workplace
Manslaughter and Other Matters)
Act 2019
On the day on which Part 3 of the
Workplace Safety Legislation Amendment
30 (Workplace Manslaughter and Other
Matters) Act 2019 comes into operation, the
Chief Executive Officer ceases to be a
Director of the Board.".
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Workplace Safety Legislation Amendment (Workplace Manslaughter and
Other Matters) Bill 2019
Part 4--Repeal of this Act
Part 4--Repeal of this Act
15 Repeal of this Act
This Act is repealed on 1 July 2021.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Workplace Safety Legislation Amendment (Workplace Manslaughter and
Other Matters) Bill 2019
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
591078B.I-29/10/2019 16 BILL LA INTRODUCTION 29/10/2019
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