Australia's industrial manslaughter offence – what can NZ expect?

Proposed NZ legislation follows Australian trend criminalizing workplace fatalities

BY Abby Lohrey, Gwen Drewitt, Andrew Shaw, Fiona McMillan, and Andy Bell 16 Nov 2024

Industrial manslaughter has recently become an offence in New South Wales and might not be too far away in New Zealand if we follow Australia’s lead.

It’s a significant development for Australia’s workplace health and safety regime and carries hefty penalties of up to $20 million for a body corporate and 25 years of imprisonment for an individual.

It’s a timely reminder for businesses to ensure they are complying with their health and safety obligations.

The Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 (Amendment Act) came into effect on 16 September 2024 and makes industrial manslaughter a criminal offence in New South Wales (NSW).

A person conducting a business or undertaking (PCBU) or officer of a PCBU will commit an offence under the Amendment Act if they:

Have a health and safety duty under the Work Health and Safety Act 2011(NSW).
Engage in conduct, either by an act or omission, that breaches their duty and causes the death of a worker or another individual, to whom the person’s duty is owed.
Engages in the conduct with gross negligence.

On 11 September 2024, Tasmania became the final Australian jurisdiction to adopt industrial manslaughter legislation. Australia’s legal framework now aligns with that of the UK and reflects a growing commitment to high workplace health and safety standards and holding PCBUs accountable for serious breaches of health and safety.

Corporate manslaughter offence in New Zealand?

There has been talk of introducing a corporate manslaughter offence in New Zealand for some time.

In April 2024, the Crimes (Corporate Homicide) Amendment Bill was put into the member’s ballot by Camilla Belich, Labour’s workplace relations and safety spokesperson.

The Bill’s general policy statement says: “Other jurisdictions around the world have a similar offence and the purpose of introducing such an offence is to encourage a good health and safety culture but also to bring accountability and justice to individuals and the families of those wrongly killed by an entity.”

In its current form, the Bill provides that a person commits an offence if they:

Have a relevant legal duty of care.
Engage in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury.
Intends to cause the individual’s death or serious injury, or is reckless to as to the risk to the individual of death or serious injury.
That conduct causes the death of the individual.

A person who commits an offence under that section may face a maximum penalty of life imprisonment for an individual, or a fine of up to $10 million for a company.

While the National Party has indicated that the Bill is not a priority, it is unknown how much support it would receive.

Abby Lohrey is a solicitor working across Employment and Health & Safety law at Lane Neave in Auckland. Gwen Drewitt is a special counsel on the Employment Law team at Lane Neave in Christchurch. Andrew Shaw is the managing partner and head of the Employment Law team at Lane Neave. Fiona McMillan is a partner on the Employment Law team at Lane Neave in Auckland. Andy Bell is a partner specialising in employment law at Lane Neave in Wellington.