Criminal Manslaughter - Australian paradigm shift for engineers & standards
The rise of criminal manslaughter provisions in health and safety legislation, coupled with the registration of engineers in Queensland, New South Wales and Victoria, heralds a paradigm shift for engineers and the role of standards in Australian jurisdictions.
On July 2020, Victoria commenced the criminal manslaughter provisions of the 2004 OHS Act. Quoting the premier:
Workplace manslaughter is now a criminal offence in Victoria with tough new laws introduced by the Victorian Government coming into effect today.
Negligent employers now face fines of up to $16.5 million and individuals face up to 25 years in jail, sending a clear message to employers that putting lives at risk in the workplace will not be tolerated.
The new offence of workplace manslaughter will be investigated by WorkSafe Victoria, using their powers under the Occupational Health and Safety Act 2004.
The offence applies to employers, self-employed people and ‘officers’ of the employer. It also applies when an employer’s negligent conduct causes the death of a member of the public.
The last sentence suggests that a faulty product that kills a member of the public caused by the negligence of a designer, manufacturer or supplier as an employer is also included.
By negligence, Worksafe Victoria means:
Voluntary and deliberate conduct is 'negligent' if it involves a great falling short of the standard of care that a reasonable person would have exercised in the circumstances and involves a high risk of death, serious injury or serious illness. It is a test that looks at what a reasonable person in the situation of the accused would have done in the circumstances. The test is based on existing common law principles in Victoria.
https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences
It is understood that these new provisions have been legislated consistent with the recommendations of the 2018 review of the model WHS legislation to enhance the Category 1 offence (Recommendation 23a) and to provide for industrial manslaughter (Recommendation 23b).
This extends the criminal provisions beyond the recklessness (knew or made or let it happen) provisions that had applied in some jurisdictions (notably Queensland and the ACT) to include negligence (what ought to have been known).
Taken in the context of the registration of engineersin Queensland (RPEQ) and impending registration of engineers in Victoria andNew South Wales, these duties are likely to become extraordinarily onerous forthose who hold themselves out to be technical experts in particular fields ofendeavour.
Historically,many engineers have relied on Australian Standards to be the arbiter ofrecognised good practice. Indeed, many standards were called up by statutemeaning that compliance was prescriptive, and that compliance-with-the-standardwas de rigueur.
But things have changed in the last two decades. Parliamentary counsels’ advice has been consistent that it’s not appropriate to derogate the power of parliament to unelected standards committees.
This observation, coupled with the less than successful management of major disasters ranging from bushfires to financial crises, culminating in numerous Royal Commissions and judicial investigations including child sexual abuse, misconduct in banking and finance, aged care, as well as bushfires, all indicate that more could have been done and that many ought to have done it.
It seems that the question to our parliamentarians became; how can we make decision makers (and designers responsible) for their decisions?
And theanswer seems to be that, rather than just being responsible at common law fornegligence (a matter for which insurance can be purchased), make themcriminally responsible by statute (but always excluding state and federalministers).
Note relevant legal opinion such as in an article in Engineers Australia Magazine of March 2009 (Page 38):
Engineers cannot avoid liability in negligence or for Trade Practices Act contravention by simply relying on a current or published standard or code.
Leigh Duthie, Phillipa Murphy and Angela Sevenson of Baker & McKenzie, Melbourne
And also:
Engineers should remember that in the eyes of the court, in the absence of any legislative or contractual requirement, an Australian Standard amounts only to an expert opinion about usual or recommended practice. Also, that in the performance of any design, reliance on an Australian Standard does not relieve an engineer from a duty to exercise his or her skill and expertise.
Paul Wentworth, Partner, Minter Ellison (28th March 2011)
So, following the recommendation of the Review of the model Work Health and Safety laws - Final report December 2018, criminal recklessness (knew of made or let it happen) and criminal negligence (ought to have known) is being rolled out with Victoria being the most recent that commenced on 1 July 2020.
One imagines that a creative lawyer would use such a statement to include the products of engineering endeavours, which in an advanced technological society means most things.
Under the Professional Engineers Registration Act 2019 (due to commence on 1 July 2021), registered engineers are also obliged to comply with approved codes of conduct which one imagines will also reinforce all of this.
Registration of Engineers (Victoria) & Why it's Important
The Engineers Registration Bill (Victoria) received Royal Assent on 3 November. This has always been a philosophically challenging matter for engineers. Many believe that it will stifle innovation in a shallow attempt to improve the status of engineers. Certainly, its implementation will be complex if the Queensland model is taken, as an example.
The primary reason for the registration of engineers is to protect the community and employers from unscrupulous and/or incompetent individuals claiming to be engineers.
The immediate purpose is to protect life, critical infrastructure and essential services.
Practically this comes down to ensuring that certain critical decisions must be transparently and diligently made by clearly identified responsible individuals, who recognise the possibility of their own negligence (you can’t always be right) with appropriate professional indemnity insurances, either by themselves or via their employers.
Such individuals include:
- Structural, civil and geotechnical engineers, for footings and structures including houses, high rise buildings, bridges, tunnels, dam design and operation, port and harbour design and the like;
- Mechanical engineers for high-rise lifts, cranes, boilers and pressure vessels, aircraft, road, rail and vehicle certification, high security bio-containment, defence munitions safety, pipelines etc;
- Fire Engineers for fire safe designs (hydraulic calculations, fire resistance, and the like);
- Chemical engineers, for process design particularly, to avoid major environmental contamination, toxic gas clouds, explosions and detonations;
- Electrical engineers, particularly for power station, substation and high voltage operations, and electrical safety generally;
- Mining engineers for underground, open cut and tailings dams’ safety and certification; and
- Aviation engineers for aircraft certification and naval architects for ship certification.
Historically, Engineers Australia has attempted to do this by ensuring, as far as possible, that such engineers have:
- Passed a recognised engineering course;
- Have relevant experience and continuing education; and
- Comply with The Code of Ethics which means at least ensuring that community safety is paramount, practicing within their area of competence, not accepting kick-backs (s/he who pays you is the client), being responsible for their own negligence (appropriate insurances) and giving credit where credit is due.
This 100-year-old view compares favourably with current financial governance being uncovered in the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
Presently, these requirements only apply to the one third of engineers who choose to be members of Engineers Australia. But registration, supported by a Code of Conduct, should address this deficiency.
As for us at R2A, we are members of Engineers Australia and practice in accord with the Code of Ethics oulined above. But, we also believe practising to these standards is the right thing to do!