Prosecuting Corporations and Officers for Industrial Manslaughter - Recent Australian Developments

There have been concerns for some time about whether breaches of duty that cause a worker's death are appropriately dealt with under occupational health and safety legislation, or whether criminal prosecution is warranted in those cases involving recklessness or gross negligence. Defaulting employers are rarely prosecuted under existing criminal laws and there are serious doctrinal barriers to finding a corporation guilty of mens rea offences. The Australian Capital Territory leads the way in Australia with the recent introduction of new criminal offences of industrial manslaughter for corporations and their senior officers. These laws rely on concepts of corporate liability based on organisational responsibility and corporate culture in the model Criminal Code Act 1995 (Cth) , thus avoiding the limitations of the identification doctrine. Other active Australian jurisdictions, whilst initially open to the notion of industrial manslaughter laws, have preferred to make changes to existing OHS laws to deal with the problem of workplace fatalities