Legalwise News interviewed Alison Barrett in the lead-up to what is set to become the biggest Coronial Inquest in Queensland history: the Dreamworld River Rapids Fatalities incident where four people died. A pre-inquest conference is scheduled for Friday, May 25 before Coroner James McDougall at Southport.
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Ms Barrett, a principal lawyer at Maurice Blackburn in Queensland, said the coming Dreamworld River Rapids Fatalities Coronial Inquest will have significant and far-reaching consequences for amusement parks and ride operators in Australia.
“The implications will be enormous; these places will never be the same again. It is not just those killed in this tragedy that were impacted; there are their loved ones who will suffer this pain for the rest of their lives, the Dreamworld employees who witnessed the events, the emergency personnel who attended, and the innocent families enjoying a spring day at the fun park,” she said.
Four people died when the Dreamworld River Rapids Ride malfunctioned in October 2016. The coming Coronial Inquest – a pre-inquest conference is scheduled for Friday, May 25 – is an important step in the process of providing answers for those people tragically killed in the theme park disaster.
In October 2017, following an independent best practice review of Work, Health and Safety, the Queensland Parliament passed a new set of laws aimed at reinforcing current safety obligations of businesses, including the introduction of a standalone offence of industrial manslaughter. In addition to the Dreamworld tragedy, two workers were crushed to death on a worksite at Eagle Farm in October 2016.
The tough new maximum penalties for industrial manslaughter will be 20 years imprisonment of an individual and $10 million for a body corporate (an employer). The amendments are due to commence on July 1, 2018.
Ms Barrett said the introduction of industrial manslaughter laws in Queensland was a response to a Work, Health and Safety review in the state that focussed less on using the “stick” and more on the “carrot”, and employed safety strategies of self-regulation, allowing employers and industries to keep an eye on themselves, to help make the workplace safer.
“Following on from the Dreamworld and Eagle Farm tragedies, it became abundantly clear that this approach wasn’t working. As we all know, prevention is better than cure, but it’s too late once an accident has occurred. This legislation was vitally important to drive home the message that the effective management of health and safety risk in the workplace is a legal requirement for employers. she said.
“The investigation and prosecution of executive officers will help ensure that there is a robust safety culture and leadership at the helm of corporate entities. The message is now clear: ‘If your workplace kills someone, you could spend the rest of your life in jail’.”
The strengthening of work, health and safety laws in Queensland will provide greater safety for the general public and visitors, through important improvements to the regulation the maintenance and operation and amusements rides, like those involved in the tragedy at Dreamworld in October 2016.
Following the Dreamworld and Eagle Farm deaths, it became clear that there was a need for an independent commission with appropriate powers to offer proper scrutiny of complaints and to penalise significant and serious breaches.
Issues the Dreamworld Coronial Inquest will consider
Changes to come into force in Queensland on July 1, 2018
The new offence in the Work Health and Safety Act of industrial manslaughter arises where conduct causes the death of a worker and includes categories for both senior officers and employers. The legislation uses the current standard of proof for criminal negligence (proof beyond reasonable doubt).
This fills a gap between the provisions of the Work Health and Safety Act and the Queensland Criminal Code in situations where someone is given a “negligent” direction or instructed to perform a task. This will apply where the task is contrary to appropriate safety practice and in which obvious safety concerns have been ignored.
An independent statutory office of Work Health and Safety (WHS) prosecutions will be established, headed up by a WHS Prosecutor. The functions to conduct and defend court and tribunal proceedings under the Work health and Safety Act have been transferred to the WHS Prosecutor; however it retains the procedure requiring the WHS Prosecutor to transfer indictable offences (category one manslaughter) to the Director of Public Prosecutions for action.
The changes also include amendments to the exiting requirements for the training for Health and Safety Representatives (HSR) that will require all HSRs to undertake training within six months of being elected to the role. There is also a requirement for this training to be refreshed at three year intervals. Under the changes there is an additional requirement that individuals, businesses or organisations that are conducting business will need to provide the regulator with all provisional improvement notices issued HSRs and a list of all HSRs for each work group at the business.
National overview
Amusement rides and devices are regulated by Work, Health and Safety legislation in Australia. The rules vary between jurisdictions, but have their origins in the old Machinery Acts, because amusement rides are, for all intents and purposes, potentially hazardous pieces of machinery to which the general public is exposed.
Worksafe Australia defines an amusement device as: “An item of plant operated for hire or reward that provides entertainment, sightseeing or amusement through movement of the equipment, or part of the equipment, or when passengers or other users travel or move on, around or along the equipment.”
An Australian Standard exists for the design, construction and operation of amusement rides.
National Work Health and Safety Regulations 2011
Regulation 240 – Maintenance, inspection and testing of amusement devices and passenger ropeways: You must ensure a competent person such as a chartered professional engineer or a person that is qualified to be on the National Professional Engineers register inspects the device. For inflatable devices, such as jumping castles (that have a platform height less than nine metres) a ‘competent person’ need only demonstrate that they have acquired through training, qualifications or experience the knowledge and skills to inspect inflatable devices.
Regulation 238 – Operation of amusement devices and passenger ropeways: The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the device or ropeway is operated only by a person who has been provided with instruction and training in its proper operation.
Maximum penalty:
Victoria
Section 32 of the Crimes Act 1985 (Vic) makes it an offence where a person “recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury”. This offence is punishable by a maximum penalty of 1800 penalty units ($184,050) and/or five years imprisonment for individuals and, in the case of corporate offenders, a maximum fine of 9000 penalty units ($920,250). This approach is reflected in the Occupational Health and Safety Act 2004 (Vic)
Equipment (Public Safety) Amendment Regulations 2014: Since 1994, the Equipment Public Safety Act 1994 has set out obligations on the designers, manufacturers, suppliers, owners and operators involved with this equipment.
On 18 June 2017, Victoria’s new Occupational Health and Safety Regulations 2017 (OHS Regulations 2017) came into effect. Part 3.5 of the Regulations deals with Plant and seeks to protect people at work against risks to health or safety arising from plant and systems of work associated with plant (tools, equipment, machinery, etc.)
This includes amusement structures – e.g.: coin in the slot amusement rides; ferris wheels; roller coasters; toboggan rides; merry-go-rounds; and train rides. Regulation 106 requires a record of inspection for amusement structures
Fines – The OHS Act provides for the following maximum penalties:
• for corporations is $1,365,030, and
• for individuals is $273,006.
Fines for breaches of the OHS legislation are expressed in penalty units. Penalty units are set by the Monetary Units Act 2004 and are indexed annually to keep pace with inflation. The current value (for the financial year 2015-16) of a penalty unit is $151.67. Changes to the rate occur with effect from 1 July each year.
Reckless endangerment: Section 32 of the OHS Act also provides for jail sentences for reckless endangerment. This is defined as where a person ‘recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury’. Where this can be proven, the offence is punishable by up to the maximum fine listed above, and/or five years imprisonment for individuals.
The ACT
In 2004, the ACT became the first (and only) jurisdiction in Australia to introduce an offence of industrial manslaughter. This was done via the Crimes (Industrial Manslaughter) Act 2003 which led to a new Part 2.5 (sections 49-55) being added to their Criminal Code.
According to the companion Crimes Act 1900 (ACT), “industrial manslaughter” is defined as causing the death of a worker while either being reckless about causing serious harm to that worker or any other worker, or being negligent about causing the death of that or any other worker.
That offence carries a maximum penalty of $1.25 million for companies. Individuals face a penalty of up to $250,000 or imprisonment for 25 years or both. In addition to those penalties, the legislation also allows the Court to order an organisation to undertake community projects to a cost of up to $5 million.
NSW
There are penalties of up to $825,000 for a corporation under the NSW Occupational Health and Safety Act2000. In NSW, there was a Private Members Bill (introduced to the Legislative Council in April 2003) seeking to create the offence of industrial manslaughter – Crimes Amendment (Corporate Manslaughter) Bill 2003. That bill contemplated fines of up to $5 million for corporations and up to 5 years’ imprisonment for individuals.
South Australia
A Work Health and Safety (Industrial Manslaughter) Amendments Bill was introduced in February 2016 by the Greens. It proposed that employers causing the death of a worker, because of negligence and indifference, would be fined up to $1 million or jailed for a maximum of 20 years.
Western Australia
In March 2017, the Greens called for an amendment to the WA Criminal Code that would hold employers responsible for an employee’s death.
Alison Barrett is a Principal in Maurice Blackburn’s Southport office on the Gold Coast. She is a Queensland Law Society accredited personal injury specialist with over 10 years’ legal experience helping people with claims for workers’ compensation, CTP and public liability claims.