Appendix: The law in other jurisdictions
Updates and background for this project (Digest)
A.1 This appendix provides a brief overview of the occupational health and safety (“OHS”) provisions in all Australian jurisdictions and in New Zealand, with specific emphasis on provisions similar or relevant to the NSW workplace deaths provision. The ACT and NSW are the only jurisdictions with a specific workplace death offence. The appendix also considers corporate homicide provisions in the United Kingdom and Canada. The United States operates on different corporate liability principles from Australia and is presented as a point of comparison.
AUSTRALIAN JURISDICTIONS
Overview of general occupational health and safety provisions
A.2 In all Australian jurisdictions other than Queensland and NSW, the employer has a duty to take all reasonable and/or practical steps to provide a safe working environment, or to protect the health and safety at work of employees.1 In NSW and Queensland, there is an absolute duty upon an employer to ensure the health, safety and welfare of employees.2 The duty of care in NSW is qualified by reasonable practicability. In Queensland, the duty of care is qualified by the standard of reasonable precautions. Taking action that satisfies the “reasonableness” standard is sufficient defence to a breach of the duty.
A.3 The violation of these duties incurs criminal sanctions. The Commonwealth scheme contains both criminal and civil sanctions,3 possibly because the extent to which the Crown is immune from criminal prosecution under the Act makes civil liability necessary.4 The Occupational Health and Safety Act 2000 (NSW) provides that the Act binds the Crown5 and criminal proceedings may be brought against the Crown and agents of the Crown.6
A.4 The attribution of liability between corporations and officers of the corporation differs within Australian jurisdictions. In South Australia, the “responsible officer” must take reasonable steps to ensure that the body corporate complies with the obligations under the Act.7 A “responsible officer” includes a director, executive or chief executive officer of the company. Where the Act is contravened, both the responsible officer and the corporation may be penalised.8 In the other States and the Northern Territory, individuals involved in management are, in principle, liable to prosecution for breaches of safety obligations by the corporation. In contrast, in the Commonwealth and the ACT, directors and managers do not necessarily have the obligations of corporations.
Workplace death equivalent provisions
Commonwealth
A.5 Part 2, Division 1 of the Occupational Health and Safety Act 1991 (Cth) places general duties of care upon employers,9 employees,10 manufacturers,11 suppliers,12 and persons erecting or installing plants in workplaces13 to maintain workplace safety. Employers have a duty towards both employees14 and certain third parties15 to take all reasonably practicable steps to ensure persons near a workplace under the employer’s control are not exposed to risks created by the employer.
A.6 Clause 18 of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) is titled “offences resulting in death or serious bodily harm”. The offence is committed if a person breaches an occupational health and safety duty,16 the breach causes death or serious bodily harm,17 and the person was negligent18 or reckless in their conduct.19 Providing a reasonable excuse for the conduct is a defence to the charge.20
A.7 The maximum penalty for the offence is $495,000 for a Commonwealth authority and $99,000 for a natural person.21
A.8 Part 2.5 of the Criminal Code (Cth) specifically addresses corporate criminal liability and overcomes the limitations of the identification doctrine, making the prosecution of corporate offenders involved in workplace deaths and other offences easier. The physical element of an offence can automatically be attributed to the corporation if its employee or agent was acting within the scope of employment.22 For offences that require a fault element, the corporation must have “expressly, tacitly or impliedly authorised or permitted commission of the offence,”23 which can occur through the actions of the corporation’s board of directors, high managerial agents, or through the corporation’s culture.24
A.9 The majority of workplace deaths will be cases of manslaughter by criminal negligence, falling under s 12.4. Under s 12.4(1), the test for negligence is found under s 5,25 which is similar to the common law test.26 In addition, s 12.4(2) provides that fault in corporate negligence can be found by aggregating the conduct of the body corporate as a whole – the aggregation approach.27
A.10 Exercise of due diligence is a defence.28 For offences of strict liability, a reasonable mistake of fact is also a defence.29
Australian Capital Territory
A.11 The Crimes (Industrial Manslaughter) Amendment Act 2003 (ACT) was passed in November 2003 and commenced operation on 1 March 2004. It amended the Crimes Act 1900 (ACT) and is currently the only Australian jurisdiction to have enacted a specific offence termed “industrial manslaughter” which removes the need to identify a “controlling mind” of the corporation.30 Under the ACT provision, employers and senior officers can be guilty of industrial manslaughter where negligence or recklessness is proved. The explanatory memorandum to the Bill states that the purpose of the Bill is to:
Provide improved protection of the health and safety of workers by establishing new offences of industrial manslaughter. The offences will apply where an employer or senior officer of an employer causes the death of a worker through recklessness or negligence.31
A.12 The amending legislation inserted two new manslaughter provisions into the Crimes Act 1900 (ACT). Section 49C of the Act provides that an employer commits the offence of industrial manslaughter if a worker dies or is injured in the course of employment, where the employer’s conduct causes the death of the worker and the employer was either reckless or negligent as to their own conduct. Section 49D is identical except that it applies to senior officers. The Act includes “omission to act” in the definition of conduct for the purposes of s 49C and s 49D.
A.13 Under the ACT provision, an employer is defined as a person who engages the worker as a worker of the person or who is an agent of that person who engages a worker as his or her own worker.32 The type of senior officer who may be made liable is one “who makes, or takes part in making, decisions affecting all, or a substantial part, of the functions of the entity”. This falls short of a requirement that the person be the “controlling mind” of the corporation for the corporation to be liable. The provision applies to the death of a worker, whether they are employed directly or under contracts for services, as an independent contractor, outworker or volunteer.33 The provisions do not, however, extend to members of the public who are injured or killed due to industrial or corporate failings.
A.14 Under s 49C and s 49D, the maximum penalty attaching to a violation is 2,000 penalty units. This currently represents $1,000,000 for corporations and $200,000 for an individual.34
A.15 The criminal responsibility provisions in Part 2.5 of the Criminal Code (Cth) are replicated in the Criminal Code 2002 (ACT) and the Crimes Act 1900 (ACT). Therefore, as is the case in the Commonwealth legislation, s 50 of the Criminal Code 2002 (ACT) provides that a physical element of an offence consisting of conduct is taken to be committed by a corporation if it is committed by an employee, agent or officer of the corporation acting within the scope of his or her employment or authority.
A.16 The fault element may be established by objective measures, or by looking to the organisational fault of the corporation, that is, “if the fault element exists on the part of a body corporate that expressly, tacitly or impliedly authorized or permitted the commission of the offence”.35 This includes proving a corporate culture existed within the corporation “that directed, encouraged, tolerated or led to non-compliance” with the Act under s 51(2)(c) or proving that the corporation failed to maintain a compliance-conducive culture under s 51(2)(d).
A.17 There have been no prosecutions under the ACT legislation to date.
Victoria
A.18 The Occupational Health and Safety Act 2004 (Vic) covers the workplace safety duties of corporations and their officers. There is no specific workplace deaths offence.
A.19 The Crimes (Workplace Deaths and Serious Injuries) Bill 2001 intended to create criminal offences of a corporation negligently killing or seriously injuring an employee in the course of the employee’s work. The Bill was defeated in the Legislative Council following pressure from bodies such as the Australian Industry Group, Independent Contractors of Australia,36 and the Victorian Employers Chamber of Commerce.37
A.20. This Bill was initiated in response to the Esso Longford gas explosion of 25 September 1998, where the deaths of two workers in the explosion of a natural gas processing plant was blamed on the employer’s poor management, training and risk assessment procedures, which constituted multiple breaches of occupational health and safety legislation.38
A.21 The Bill outlined a particular negligence test for corporations. The test involved assessing a corporation’s conduct against the actions expected of a “reasonable corporation”. Under that test, if the corporation’s conduct falls significantly below the standard expected of a “reasonable corporation”, the corporation is liable to face criminal punishment. This was a direct adaptation of the objective common law reasonable person test for manslaughter by criminal negligence and involved treating the corporation as an entity in itself, rather than deconstructing it into the actions of individual employees.39 Corporate negligence could be evidenced by various factors, largely modelled on s 12.4 of the Criminal Code (Cth).40 The provisions also allowed aggregation of conduct and attribution of individual employee’s actions through vicarious liability. The Bill mirrored ACT provisions governing liability of senior managers in corporations.
A.22 A variety of monetary and alternative penalties were permissible, including orders to publicise the crime, and orders to undertake community projects. There were also provisions borrowed from the Trade Practices Act 1974 (Cth) for ensuring compliance.
Queensland
A.23 Queensland does not have an offence targeted directly at corporate manslaughter. However, s 24 of the Workplace Health and Safety Act 1995 (Qld) implements a graded penalty scheme for health and safety contraventions. This scheme takes into account the consequences of the violation41 so that a breach causing bodily harm carries a penalty of 750 penalty units (currently $56,250)42 or one year of imprisonment, while a violation causing death or grievous bodily harm incurs up to 1000 penalty units (currently $75,000) or two years imprisonment. Violations causing multiple deaths carry a maximum penalty of 2000 penalty units (currently $150,000), or three years imprisonment.43
South Australia
A.24 There is no corporate or industrial manslaughter offence in South Australia. However, s 59 of the Occupational Health, Safety and Welfare Act 1986 (SA) provides that it is an offence (without lawful excuse), to endanger persons in the workplace by conduct that creates a risk of death or serious harm to another person in the workplace where the person knows or is recklessly indifferent to whether his or her conduct would create that risk. An individual, body corporate or an administrative unit in the state public service may commit the offence.
A.25 Under s 59A, the conduct and state of mind of officers, employees or agents of a body corporate or an administrative unit acting within the scope of their actual, usual or ostensible authority are attributed to the body corporate or administrative unit. The maximum penalty for an individual is double the Division 1 fine or imprisonment for five years, and, for a corporation or administrative unit, double the Division 1 fine.44 Thus, breaches of s 59 attract a maximum penalty of $1,200,000 for corporations and $400,000 or 5 years imprisonment for natural persons. Under s 59A(2), it is a defence to criminal prosecution that the alleged violation did not occur as a result of a failure to take all reasonable and practicable measures to prevent the same or similar violation.
Western Australia
A.26 Western Australia has no offence specifically targeting workplace deaths. However, the employer’s general duty to provide and maintain a working environment in which employees are not exposed to hazards gives rise to penalties on contravention that differ depending on whether the contravention involves “gross negligence” and/or it results in death or serious harm.45 Section 18A(2) of the Occupational Safety and Health Act 1984 (WA) provides that a contravention occurs in circumstances of gross negligence if the offender knew that the contravention would be likely to cause death or serious harm to a person to whom the duty is owed and acted or failed to act in disregard of that likelihood, and the contravention does in fact cause death or serious harm to such a person.
Tasmania
A.27 Tasmania currently has no industrial manslaughter offence. However, there is a general obligation on an employer to ensure “so far as is reasonably practicable” that, while at work, employees are safe from injury and risks to health,46 the breach of which carries a maximum penalty for a corporation of $150,000 and for a natural person of $50,000.
A.28 The Tasmanian Law Reform Institute has conducted a review of workplace and other deaths caused by corporations. The Institute made a number of recommendations47 including that the Tasmanian Criminal Code should be amended to include special principles of criminal liability for organisations. These were to be based upon the corporate criminal liability provisions found in the Commonwealth Criminal Code.48 The Institute also recommended a range of sentencing options including community service orders and probation orders, under which the offending organisation could be required to establish new policies. The recommendations have not been implemented.
OTHER JURISIDICTIONS
New Zealand
A.29 Legislation in New Zealand imposes a general duty on employers to take all practicable steps to ensure the safety of employees.49 Persons (including the Crown or a corporation)50 commit an offence under the legislation where their action or inaction is contrary to the provisions of the legislation and the person knows that the action or failure to act is reasonably likely to cause “serious harm” (defined to include “death”).51 On conviction, a person is liable to a maximum fine of $500,000, imprisonment for two years or both.52 Because the legislation imposes duties on corporations in respect of safety at work, the actions or inactions of persons “in effective charge of the worksite” are attributable to the corporation for the purposes of establishing criminal liability.53 And where the corporation has failed to comply with the provisions of the legislation, criminal responsibility is also attributed to the corporation’s “officers, directors, or agents who directed, authorised, assented to, acquiesced in, or participated in” that failure.54
United Kingdom
A.30 The Corporate Manslaughter and Corporate Homicide Act 2007 (UK) came into operation on 6 April 2008. It applies to “organisations”, a term that includes corporations, departments and other similar bodies, police forces and partnerships, and trade unions and employers’ associations that are employers.55
A.31 The organisation must owe the victim a relevant duty of care. These encompass the duties owed by the employer under the law of negligence to those occupying its premises, employees or persons working or performing services for the organisation, and any other people who are commercially connected to the organisation.56
A.32 The general presumption that the Crown is immune from criminal prosecution is abrogated. As stated in the Explanatory Note to the legislation:
The effect is, broadly, to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. 57
A.33 However, the offence does not apply to the government where it is engaged in “wider policy-making activities…such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions.”58 Matters involving the prerogative of the Crown are not within the scope of the Act but “remain subject to other forms of public accountability.”59
A.34 An organisation is guilty of an offence if the organisation causes the death of the victim, and the way in which its activities are organised or managed by senior management is a substantial cause of a person’s death, and is a “gross breach” of the relevant duty of care owed to the deceased.60 For the purposes of the provision, “senior management” means the persons who play significant roles in the “actual managing or organising” of the whole or a substantial part of those activities, or the decision-making regarding how such activities are to be managed. A breach of a duty of care by an organisation is a “gross” breach if it falls far below what can reasonably be expected of the organisation in the circumstances.61 This standard of reasonableness has not yet been clarified by case law. An organisation that is found guilty of the offence of “corporate manslaughter” (termed “corporate homicide” in Scotland) is liable on conviction on indictment to a fine.62 There is no stated maximum penalty in the legislation.
A.35 The court also has the power to make remedial orders. The court may require the organisation to remedy the breach, any consequence of the breach which the court deems to have been the cause of the death, or any deficiency regarding health and safety matters in the organisation’s policies, systems or practices of which the relevant breach appears to be indicative. It is an offence to breach a remedial order by not taking the particular steps within the specified period.63 The court also has the power to make a publicity order requiring the convicted organisation to publicise the conviction.64
Criticism of the Act
A.36 A number of criticisms have been made of the Act.65 The first is that it fails adequately to address issues of corporate liability, especially short-sighted risk management deficiencies that result in workplace deaths. Secondly, requiring that persons in the organisation substantially contribute to the offence continues to contain identification doctrine difficulties. Thirdly, there are no provisions to find individual managers and executives criminally liable. Fourthly, the offence can only be prosecuted with the consent of the DPP and commentators have argued that this introduces unacceptable political interference.
Canada
Occupational health and safety legislation
A.37 Each jurisdiction in Canada has its own occupational health and safety legislation, all largely based upon the Robens model of co-operation, and internal responsibility and regulation.66 The federal instrument is the Canada Labour Code Part II and applies to employees of the federal government and Crown agencies and corporations, and employees of companies that operate across provincial borders. Workplace inspectors investigate accidents and press charges, independent of any police involvement.
A.38 There are no particular provisions for workplace deaths. Section 148(1) of the Canada Labour Code Part II is a general offence of contravening a provision of the Part, which carries on indictment a maximum penalty of a $1,000,000 fine and/or 2 years imprisonment,67 or on summary conviction, a fine of not more than $100,000.68
A.39 If a person’s contravention results in death, or serious illness or injury, the maximum penalty is a $1,000,000 fine and/or 2 years imprisonment on indictment.69 The maximum penalty on summary conviction is a fine of $1,000,000.70 The same penalties apply if a person “wilfully contravenes” a provision, knowing that their contravention is likely to cause death, or serious injury or illness.71
A.40 Exercise of due care and diligence is a defence.72
Criminal corporate liability for workplace deaths and negligence
A.41 Entirely separate to occupational health and safety legislation, the Criminal Code contains legal duties regarding workplace safety. Section 217.1 of the Criminal Code, which came into force in 2003, provides that “every one who undertakes, or has authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” Glasbeek observes that the section is notable in extending the duty of care owed to people outside the workforce. Moreover, the duty is no longer owed solely by managerial level employees.73
A.42 The Criminal Code also contains provisions expanding corporate liability beyond the common law identification doctrine.74 Section 22.1 addresses offences of negligence, including workplace deaths, by organisations. “Organisations” is a term encompassing any group from corporations to trade unions, co-operatives and volunteer organisations.75 An organisation is criminally liable if one of its representatives acts within the scope of their authority and is a party to the offence, or if the conduct of multiple representatives of the organisation, when taken together, constitutes behaviour consistent with being a party to the offence. The latter describes the aggregation principle: the actus reus and mens rea of an offence do not have to be derived from the same individual.
A.43 Section 22.1(b) states that organisational liability exists if the senior officer responsible for the organisation’s activities pertaining to the offence departs from the standard of care reasonably expected. Section 22.2 provides for attribution of liability to organisations for offences involving a fault element.76 The Canadian provisions overcome many of the difficulties in prosecuting a company, as there is no longer a need to find its directing mind.
A.44 Enforcement and applicability of the Criminal Code is different from occupational health and safety legislation. The police and crown attorneys enforce the provisions, which apply to all organisations and individuals. The provisions have been used only against two individuals, where charges were later dropped.77
The United States
A.45 An interesting point of comparison is the United States. The majority of jurisdictions in the United States, including federal, utilise the civil law concept of “respondeat superior” or “vicarious liability” from the tort of negligence to attribute the actions and mental state of an individual or multiple employees, officers, servants or agents to the corporation.78 This formulation has also been adopted by statute in several states.79 The test is quite broad and requires that an employee has acted with the requisite mens rea of an offence, and that these actions were within the scope of their employment. The latter is ascertained by considering whether the activity was for the company’s benefit. The mental state may also be found through a process of aggregating the knowledge of a group of agents if their individual mental state is insufficient to make out an offence.80
A.46 Criticism of this approach, which has not been accepted in Australia, is that the illegal activities of a “rogue” employee are far too easily used to find a company criminally liable, without requiring any indication of culpability on the company’s part.81 The expansion of criminal law through a tortious concept of vicarious liability has also been described as merging criminal and civil law and erasing the moral authority of the criminal law.82 Some commentators have noted the inconsistency of vicarious liability’s applicability in various areas of law. For example, while the Supreme Court has limited the use of vicarious liability for punitive damages in the civil law,83 the doctrine continues to be used to hold corporations responsible for the actions of their employees in criminal proceedings.84
A.47 The Federal Criminal Code in particular is broad and affords prosecutors and the Government discretionary power that results in corporations having very little power in court proceedings. Within the particular context of corporate fraud in the post-Enron environment, corporations such as KPMG have been placed in positions where they are compelled to waive many procedural rights including attorney-client privilege.85 Federal sentences for corporate criminal offences are also very high. Average prison terms for individuals involved in corporate crime nearly doubled between 1980 and 1995.86
A.48 There has been a move away from this liberal approach to finding corporate guilt. The American Law Institute in s 2.07 of the Model Penal Code adopts an approach akin to the identification doctrine, requiring action from a managerial agent. Sentencing and prosecutorial guidelines from the Department of Justice temper the broad reach of corporate criminal liability by providing that corporate fault issues are considered when determining penalties. Considerations include whether the corporation was actually at fault for their agent’s actions, and whether there was a corporate culture or history conducive to offending conduct.87
FOOTNOTES
1. Occupational Health and Safety Act 1991 (Cth) s 16; Occupational Health, Safety and Welfare Act 1986 (SA) s 19; Workplace Health and Safety Act 2004 (Vic) s 20; Occupational Safety and Health Act (WA) s 19.
2. Occupational Health and Safety Act 2000 (NSW) s 8; Workplace Health and Safety Act 1995 (Qld) s 28
3. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18-19.
4. Consider Occupational Health and Safety Act 1991 (Cth) s 11, and sch 2 cl 18-19. And see R Stewart-Crompton, B Sherriff and S Mayman, National Review into Model OHS Laws: First Report to the Workplace Relations Ministers’ Council (October 2008) [10.2] (referring to Department of Education, Employment and Workplace Relations, Submission No 57, 7).
5. Occupational Health and Safety Act 2000 (NSW) s 118.
6. Occupational Health and Safety Act 2000 (NSW) s 119.
7. Occupational Health, Safety and Welfare Act (SA) s 61
8. Occupational Health, Safety and Welfare Act (SA) ss 61(5), 58(1), 19(1).
9. Occupational Health and Safety Act 1991 (Cth) ss 16-17.
10. Occupational Health and Safety Act 1991 (Cth) s 21.
11. Occupational Health and Safety Act 1991 (Cth) s 18.
12. Occupational Health and Safety Act 1991 (Cth) s 19.
13. Occupational Health and Safety Act 1991 (Cth) s 20.
14. Occupational Health and Safety Act 1991 (Cth) s 16.
15. Occupational Health and Safety Act 1991 (Cth) s 17.
16. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(1)(a).
17. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(1)(b).
18. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(1)(c)(i).
19. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(1)(c)(ii).
20. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 18(2).
21. Occupational Health and Safety Act 1991 (Cth) sch 2 cl 21.
22. Criminal Code (Cth) s 12.2.
23. Criminal Code (Cth) s 12.3(1).
24. Criminal Code (Cth) s 12.3(2).
25. Criminal Code (Cth) s 5.5 (“A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence”).
26. See Nydam v The Queen [1977] VR 430; R v Lavender (2005) 222 CLR 67 (the act/omission of the accused involves such a great falling short of the standard of care which a reasonable person would have exercised and where there was such a high risk of death or serious bodily injury that criminal punishment is merited).
27. See para 2.15.
28. Criminal Code (Cth) ss 12.3(3), 12.5(1)(b).
29. Criminal Code (Cth) s 12.5(1)(a).
30. Crimes Act 1900 (ACT) pt 2A.
31. Explanatory Memorandum, Crimes (Industrial Manslaughter) Amendment Bill 2002 (ACT) 2.
32. Crimes Act 1900 (ACT) s 49A.
33. Parliament of New South Wales, General Purpose Standing Committee No 1, Serious Injury and Death in the Workplace (2004) [12.62] (evidence of Penny Shakespeare, Director, Office of Industrial Relations, ACT Chief Minister’s Department).
34. Legislation Act 2001 (ACT) s 133(1)(b).
35. Criminal Code 2002 (ACT) s 501.2.
36. Independent Contractors of Australia, “The Victorian Crimes (Workplace Deaths and Serious Injuries) Bill 2001 Commonly Called the ‘Corporate Manslaughter Legislation’: A Discussion Paper” (11 March 2002) «http://www.contractworld.com.au/reloaded/ica-manslaughter.php».
37. R Sarre and J Richards, “Responding to Culpable Corporate Behaviour – Current Developments in the Industrial Manslaughter Debate” (2005) 8 Flinders Journal of Law Reform 93, 103.
38. L Gooch, “Coroner blames Esso for Longford disaster”, The Age (Melbourne), 15 November 2002 «http://www.theage.com.au/articles/2002/11/15/1037080898920.html»; K Wheelwright, “Corporate Liability For Workplace Deaths And Injuries – Reflecting On Victoria’s Laws In The Light Of The Esso Longford Explosion” (2002) 7 Deakin Law Review 321, 324-6.
39. K Wheelwright, “Corporate Liability For Workplace Deaths And Injuries – Reflecting On Victoria’s Laws In The Light Of The Esso Longford Explosion” (2002) 7 Deakin Law Review 323, 342-3.
40. Crimes (Workplace Deaths and Serious Injuries) Bill 2001 (Vic) s 14B(6).
41. Workplace Health and Safety Act 1995 (Qld) s 24.
42. Penalties and Sentences Act 1992 (Qld) s 5 states the relevant penalty unit is currently $75.
43. Workplace Health and Safety Act 1995 (Qld) s 23-4.
44. A Division 1 fine is set by s 4(5) at $600,000 for a body corporate or administrative unit, and $200,000 for other persons.
45. Occupational Safety and Health Act 1984 (WA) ss 19(1), 19A, 18A.
46. Workplace Health and Safety Act 1995 (Tas) s 9.
47. Tasmania Law Reform Institute, Criminal Liability of Organizations, Final Report No 9 (April 2007) 1-7.
48. See para 2.16.
49. Health and Safety in Employment Act 1992 (NZ), s 6 (which also lists particular ways in which the general duty manifests itself).
50. See Health and Safety in Employment Act 1992 (NZ), s 4; Interpretation Act 1999 (NZ) s 29 (“person”).
51. Health and Safety in Employment Act 1992 (NZ), s 49(1) and (2), and s 4.
52. Health and Safety in Employment Act 1992 (NZ), s 49(3).
53. Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA). See, more generally, M Wilkinson, “Corporate Criminal Liability – The Move Towards Recognising Genuine Corporate Fault” (2003) 9 Canterbury Law Review 142; R Rose, “Corporate Criminal Liability: A Paradox of Hope” (2006) 14 Wiakato Law Review 52.
54. Health and Safety in Employment Act 1992 (NZ), s 56.
55. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 1(2).
56. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 2.
57. Explanatory Notes, Corporate Manslaughter and Corporate Homicide Act 2007 (UK) ch 19, [23].
58. Explanatory Notes, Corporate Manslaughter and Corporate Homicide Act 2007 (UK) ch 19, [23].
59. Explanatory Notes, Corporate Manslaughter and Corporate Homicide Act 2007 (UK) ch 19, [23].
60. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) ss 1(1), 1(3).
61. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 1(4)(b).
62. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 1(6).
63. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 9(5).
64. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) s 10.
65. J Gobert, “The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen Years in the Making But Was It Worth the Wait?” (2008) 71 Modern Law Review 413.
66. The “Robens model” refers to the approach to workplace health and safety developed in the English Committee on Safety and Health at Work, Safety and Health at Work: Report of the Committee (1970-72).
67. Canada Labour Code, pt 2, s 148(1)(a).
68. Canada Labour Code, pt 2, s 148(1)(b).
69. Canada Labour Code, pt 2, s 148(2)(a).
70. Canada Labour Code, pt 2, s 148(2)(b).
71. Canada Labour Code, pt 2, s 148(3).
72. Canada Labour Code, pt 2, s 148(4).
73. H Glasbeek, “More Criminalisation in Canada: More of the Same?” (2005) 8 Flinders Journal of Law Reform 39, 43.
74. D Goetz, Law and Government Division, “Legislative Summaries LS-457E, Bill C-45: An act to amend the Criminal Code (Criminal liability of organisations)” (3 July 2003) Parliament of Canada «http://www.parl.gc.ca/common/bills_ls.asp? lang=E&ls=c45&source=library_prb&Parl=37&Ses=2».
75. H Glasbeek, “More Criminalisation in Canada: More of the Same?” (2005) 8 Flinders Journal of Law Reform 39, 43.
76. Criminal Code s 22.2: In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers (a) acting within the scope of their authority, is a party to the offence; (b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or (c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.
77. “Bill C-45 Overview” (1 December 2008) Canadian Centre for Occupational Health and Safety «http://www.ccohs.ca/oshanswers/legisl/billc45.html».
78. New York Central & Hudson River Railroad v United States, 212 US 481 (1909); United States v A & P Trucking Co, 358 US 121, 126 (1958); Egan v United States Union Electric Co of Missouri 137 F 2d 369, 379 (8th Cir, 1943).
79. See C Green, “Punishing Corporations: The Food-Chain Schizophrenia in Punitive Damages and Criminal Law” (2008) 87 Nebraska Law Review 197, 199, 204.
80. See S Vu, “Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent” (2004) 104 Columbia Law Review 459, 473-475.
81. For further discussion, see R Sarre and J Richards, “Responding to Culpable Corporate Behaviour – Current Developments in the Industrial Manslaughter Debate” (2005) 8 Flinders Journal of Law Reform 93, 108; Department of Justice, “Canada Corporate Criminal Liability Discussion Paper” (2002) «http://www.justice.gc.ca/eng/dept-min/pub/jhr-jdp/dp-dt/iss-ques.html».
82. S Beale, “Is Corporate Criminal Liability Unique?” (2007) 44 American Criminal Law Review 1503, 1511.
83. Kolstad v American Dental Association, 527 US 526 (1999).
84. A Weissmann and D Newman, “Rethinking Criminal Corporate Liability” (2007) 82 Indiana Law Journal 411, 413.
85. S Beale, “Is Corporate Criminal Liability Unique?” (2007) 44 American Criminal Law Review 1503, 1524.
86. S Beale, 1519.
87. S Beale, 1516-1517.
