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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Occupational Health, Safety and Welfare (Industrial
Manslaughter) Amendment Bill 2010
A BILL FOR
An Act to amend the Occupational
Health, Safety and Welfare Act 1986.
Contents
Part 1—Preliminary
1Short title
2Amendment
provisions
Part 2—Amendment of Occupational
Health, Safety and Welfare Act 1986
3Insertion of
section 59
58AIndustrial
manslaughter
4Insertion of
section 59AA
59AAAlternative verdict
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Occupational Health, Safety and Welfare
(Industrial Manslaughter) Amendment Act 2010.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Occupational Health, Safety and Welfare
Act 1986
After section 58 insert:
58A—Industrial manslaughter
(1) An employer is
guilty of an offence if—
(a) the employer breaches a duty applicable to the employer under
Part 3; and
(b) the employer knew,
or ought reasonably to have known, or was recklessly indifferent as to whether,
the act or omission constituting the breach would create a substantial risk of
serious harm to a person; and
(c) the breach causes the death of a person (whether or not the person was
an employee of the employer and whether or not the death occurred in a
workplace).
Maximum penalty:
(a) in the case of an employer who is a natural person—Imprisonment
for 20 years; or
(b) in any other case—$1 000 000.
(2) An officer of an
employer is guilty of an offence if—
(a) the officer engages in conduct that, had the officer been acting
within the scope of his or her actual, usual or ostensible authority, would be
able to be imputed to the employer pursuant to section 59A; and
(b) the conduct would, if so imputed, constitute a breach by the employer
of a duty applicable to the employer under Part 3; and
(c) the officer
knew, or ought reasonably to have known, or was recklessly indifferent as to
whether, the act or omission constituting the breach would create a substantial
risk of serious harm to a person; and
(d) the breach causes the death of a person (whether or not the person was
an employee of the employer and whether or not the death occurred in a
workplace).
Maximum penalty: Imprisonment for 20 years.
(3) It is a defence to a charge of an offence against this section for the
defendant to prove that the act or omission alleged to constitute the
breach—
(a) occurred in the course of an emergency; or
(b) was authorised under this or any other Act or law of the State or the
Commonwealth.
(4) Nothing in this section prevents an employer and an officer of the
employer from both being guilty of an offence against this section in respect of
a particular death.
(5) For the purposes of this section—
(a) the way in which the activities of the employer were managed or
organised causes a breach of a duty if it substantially contributes to the
breach;
(b) a breach of a duty causes the death of a person if it substantially
contributes to the death.
(6) An offence against this section is a major indictable
offence.
(7) Section 267 of the Criminal
Law Consolidation Act 1935 does not apply in respect of an offence
against this section.
(8) In this section—
officer, in relation to an employer,
includes—
(a) a person who makes, or takes part in making, decisions affecting all,
or a substantial part, of the activities of the employer in the course of the
employer's trade or business; and
(b) an employee of the employer who is, in the ordinary course of his or
her employment, responsible (whether solely or jointly with others) to the
employer for the supervision of other employees of the employer.
After section 59 insert:
59AA—Alternative verdict
If at the trial of a person for an offence against section 58A the
jury is not satisfied that the accused is guilty of the offence charged but is
satisfied that the accused is guilty of—
(a) an offence against section 59; or
(b) an offence against a provision of Part 3,
the jury may bring in a verdict that the accused is guilty of that
offence.