In further legal news the NSW Government has confirmed it is considering amending the State WHS Act to make it “stronger” and easier to prosecute offences, while regulators have issued alerts with prevention strategies after a series of workplace fatalities and other incidents.

The Sunday Telegraph reported that it had obtained documents showing State Cabinet had agreed to adopt a recommendation from the review of the national model WHS laws to include gross negligence as a fault element of the most serious WHS offence.

Marie Boland’s 34 recommendations included introducing the offence of industrial manslaughter, and enhancing the existing “Reckless conduct–Category 1” offence to capture duty holders that are grossly negligent in exposing individuals to the risk of serious harm and death, in addition to those that are reckless.

The change will add an “extra deterrent into the model WHS offence framework” and “assist prosecutors to secure convictions for the most egregious breaches of duties”, Boland said in her 196-page report.

“This will assist in addressing community concerns that many PCBUs accused of serious WHS breaches are escaping punishment because the bar for conviction is set too high,” she said.

The move could also avert a situation where industrial manslaughter prosecutions become more common than prosecutions for less serious category 1 offences because they’re more likely to succeed, given the offender’s state of mind is “completely irrelevant” in a manslaughter case.

In a reckless conduct case, the prosecutor must prove that a duty holder consciously disregarded a risk which is particularly hard to do and very easy for lawyers to defend.

In a statement provided recently, NSW Better Regulation and Innovation Minister Kevin Anderson said his Government is currently considering Boland’s recommendations and “looking closely at changes that have been made in other jurisdictions”.

“To be frank, it’s one thing having laws that sound strong, but if you can’t actually get a prosecution with them, then they are little more than words on a page,” the Minister said.

It is “clear” the WHS laws need to be “stronger” both in response to workplace fatalities and to target unsafe practices before a fatality occurs, he said.

This move if it goes ahead will also bring NSW more in line with Queensland and now the NT that has put forward these new laws. I believe this is a move int he right direction as there is a real belief in the community that PCBU’s escape with minimal pain financially when there are fatalities or serious injuries. 

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