Yet more changes are on the way for Queensland’s work health and safety laws, with the Honourable Grace Grace introducing the Electrical Safety and Other Legislation Amendment Bill 2024 into the Queensland Parliament on 22 May 2024.

If passed in its current form, the Bill would introduce significant changes to Queensland safety laws, namely the:

As noted in earlier publications, these changes are in addition to changes already introduced under the Work Health and Safety Amendment Bill 2023 (Qld) (First Amendment Bill) – see our 27 March 2024 article here) – and the planned changes under the Resources Safety and Health Legislation Amendment Bill 2024 (Qld) – see our 7 May 2024 article here.  And for those catching up, in a separate 7 May 2024 article we also discussed the impact of the First Amendment Bill changes on statutory liability insurance – you can read more about this here.

Industrial Manslaughter

As reflected in our earlier article concerning the First Amendment Bill, broader changes are being proposed to offences under work health and safety laws.  As a refresher, we previously noted that the independent Work Health and Safety Prosecutor (WHS Prosecutor) recently completed the Review to examine the scope and application of the industrial manslaughter provisions in the Work Health and Safety Act 2011 (IM Review). The IM Review recommended the industrial manslaughter provisions in the WHS Act be amended to:

  • apply not just workers who are killed as a result of negligent conduct at a workplace, but also to other individuals (e.g. visitors to the workplace or members of the public);
  • remove any doubt that the industrial manslaughter offence applies to all duty holders in a contractual chain (who may have multiple and concurrent duties with one another) such as principal contractors, subcontractors, developers and consultants; and
  • provide the ability to find an accused guilty of a lower Category 1 or Category 2 offence as an alternative in circumstances where the elements of the industrial manslaughter offence cannot be proven beyond reasonable doubt.

The WHS Act will reflect these changes once the Bill receives assent. 

Specifically regarding the last of the above amendments, the WHS Prosecutor will be given the ability to succeed on alternative charges.  Relevantly, if a charge of industrial manslaughter is brought, it would be open instead for the accused to be convicted of a lesser ‘category 1’ offence of ‘reckless conduct’ or a ‘category 2’ offence of exposing a person to a risk of death or serious injury.  In either case, this could only occur where the alternative offence is established by the evidence.  Importantly, the fact that a time limit for an alternative offence proceeding to be commenced will not act to prevent a conviction in these circumstances.  As a result, the WHS Prosecutor may be more willing to bring more serious charges – including against officers of large organisations and non-executive directors (all of whom have, to date, not been regularly charged).

Reckless conduct

Changes are also to be made to the ‘category 1’ offence of ‘reckless conduct’. 

Relevantly, under the current Bill, each of the WHS Act, ES Act and SRWA Act are to be amended so that the existing ‘category 1’ offence of ‘reckless conduct’ will require showing that the relevant duty holder either engaged in the alleged conduct with negligence, or was reckless as to the risk to the individual of death or serious injury or illness. 

However, while this broadens the ability to bring a ‘reckless conduct’ offence, no changes are proposed under the current Bill to the industrial manslaughter offence in either the ES Act or the SRWA Act, nor will these changes be made to Queensland’s resources industry health and safety laws. 

A further point of difference is that the proposed changes to the ‘reckless conduct’ offence in the WHS Act will, similarly to the ‘industrial manslaughter’ offence, allow for an alternative charge to succeed.  In that regard, a new provision is proposed in the WHS Act to commence upon assent of the current Bill that would allow for a person charged with a ‘reckless conduct’ offence to instead be convicted of a ‘category 2’ offence of exposing a person to a risk of death or serious injury – provided of course this is supported by the evidence.  Again, this means that the WHS Prosecutor has less of a disincentive to charge a ‘reckless conduct’ offence, knowing that an alternative lesser charge might still be proven.

Powers of permit holders

Additional proposed changes to the WHS Act – deferred to 1 January 2025 for commencement – would allow Health and Safety Representatives (HSRs) to take measurements, tests, photos and videos directly related to identifying or recording work health and safety hazards or risks at workplaces, or where there is a suspected contravention of the WHS Act or ES Act.  There are some limitations on this, including that there is a prohibition on live streaming and also limits on recording the image or a voice of a person unless they are a relevant worker.  However, conduct of some workers can be recorded where their ‘actions are directly affecting a worker in the work group’.  As such, this power is open to being used by a HSR to, for example, record alleged bullying behaviours by co-workers, supervisors or managers.

Registered training standards

A further change of interest relates to the provision of work health and safety training in Queensland.  Relevantly, the current Bill proposes to alter the WHS Act to enable regulations to be made for setting minimum standards for Registered Training Organisations who provide work health safety training, assessment or instruction.  This includes the ability to approve the provision of any such training, assessment or instruction.  The devil will no doubt be in the detail, and it will be important to follow any regulations made in this space as part of ensuring that work health and safety training is conducted in an approved way by an appropriate provider.

Other ES Act changes

The current Bill also proposes ES Act changes in addition to those already mentioned above.  These changes are the first tranche of changes to be implemented following the completion of the independent review of the ES Act undertaken by Mr Dick Williams.  Notably, these include:

  • For ES Act prosecutions to be undertaken by the WHS Prosecutor, or an ‘appropriately qualified’ member of their staff – and noting that prosecution decisions must have regard to any relevant guidelines issued under the Director of Public Prosecutions Act 1984;
  • The ability for the Regulator to accept an electrical safety undertaking in lieu of a prosecution for an alleged contravention – with guidelines for this to be published;
  • Provide powers for ES Act inspectors for a 30 day period after entering a relevant place to seek the production of documents, seek written answers to questions or to require individuals to attend before an inspector to answer questions, either in person or by video link;
  • Change definitions for ‘electrical equipment’ and ‘electrical installation’ that will be captured by ES Act obligations; and
  • Include provisions to clarify that the Electrical Licensing Committee can include a condition or restriction in a licence as a form of disciplinary action, and can change or remove a condition or restriction in a licence.

What to do

It remains to be seen if the Bill will pass without further amendment.  Once the Bill is passed, its provisions are proposed to commence at different times.  In particular, the changes to powers of HSRs have been deferred until 1 January 2025.  This will post-date the next Queensland State Government election, such that there remains a possibility that, if there was to be a change of government, these changes could be the subject of further amendment by a new government.

We will of course continue to follow these proposed changes, but in the meantime it is important to be aware of how they may impact on ongoing operations and prosecutions. 

Please contact our team of experts for any help you need to further understand these proposed changes.