Following findings in the Coronial inquest arising from the Dreamworld tragedy that have criticised the operating company’s safety systems and standards, the operating company has been referred to prosecuting authorities. However, the question remains, are Queensland’s Work Health and Safety (WHS) laws capable of seeing officers of a large entity actually found liable and subject to imprisonment?
Background
The Queensland Coroners Court has this week published its findings into the death of four members of the public at Dreamworld in October 2016. The coronial findings are scathing, with Dreamworld’s approach to safety being described as ‘immature’ and ‘frighteningly unsophisticated’. On this basis, Coroner McDougall reasonably suspected it may have committed an offence under workplace laws and referred the matter to the Office of Industrial Relations. A mechanical engineer was also referred to the Board of Professional Engineers of Queensland.
In response, the Office of the Work Health and Safety Prosecutor (OWHSP) is currently considering whether to take action against Ardent Leisure, the company that owns and operates Dreamworld. However, neither the Coroner, Workplace Health and Safety Queensland or the OWHSP have yet flagged the potential for prosecution of officers. This is despite the significant media attention focused on the Board and senior staff, and the Dreamworld incident being a trigger for the introduction of the industrial manslaughter offence into Queensland WHS laws in July 2018.
Imprisonment of officers in large companies – a bridge too far?
Coroner McDougall, in the Dreamworld inquest, said that its safety management system was ‘rudimentary and deficient’, finding that ‘such a culpable culture can exist only when leadership from the Board down are careless in respect of safety’. Can comments like these translate into a successful prosecution, or imprisonment, of an officer of a large entity, such as Ardent Leisure? The answer to that question is far from a resounding ‘yes’.
The industrial manslaughter provisions of the Work Health and Safety Act 2011 (Qld) commenced after the deaths of the four park-goers in October 2016, so that offence is not available. In any case, even if the provisions applied, an industrial manslaughter offence would not be triggered, as the offence only applies to the death of a ‘worker’, not other persons (such as visitors to Dreamworld).
Outside of industrial manslaughter, an officer or worker who breaches a WHS duty, and is reckless, can face up to five years imprisonment. This offence has existed in Queensland since 1 January 2012 and, despite this, has not been regularly used. Indeed, the Queensland Court of Appeal overturned one of the only instances of a successful prosecution of an officer, who was a sole-director of a small business just last year.[1] The officer was later re-tried, with a jury acquitting him of all charges.
Where prosecutions, even those not involving recklessness, are taken against officers the cases usually involve a small business where directors are actually involved in day-to-day decisions. As the ‘Boland Review’ found, in December 2018:
‘The identification of a grossly negligent individual who is the embodiment of a small company is not as problematic, as with small companies it is often the case that the director will be actively involved in day-to-day operations.’
The WHS laws, as currently drafted, make it more difficult for an officer of a large entity, who is not involved directly with the day-to-day operations, to be found liable. The ‘recklessness’ offence requires the conduct of the officer to expose an individual to a risk of death or serious injury or illness. A prosecutor must prove this element beyond reasonable doubt. From a legal perspective, this is a challenging task for officers who operate well above day-to-day decision-making.
Despite the introduction of the industrial manslaughter offence, WHS regulators are yet to truly test the strength of Queensland’s WHS laws for white-collar officers in medium and large companies.
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