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OHS Amendment (Workplace Deaths)

Act 2005 No. 34


This act became law on the 15th of June 2005.
It has a number of changes from the original Bill that was released for discussion by the Government. The Discussion Bill was widely criticised by employers, managers and others and the government has responded appropriately.
This act amends the OHS Act 2000, the Criminal Appeal Act 1912, and the OHS Regulation 2001. In brief summary the law now is;
  1. An employer, director, manager or any employee, can be prosecuted for reckless conduct where that reckless conduct substantially contributed to a death.
  2. An individual can be fined up to $165,000 and/or up to 5 years imprisonment for this offence.
  3. A corporation can be fined up to $1.65 million.
  4. There is a new defence available for this offence of “reasonable excuse for the conduct” and the existing defences under section 28 of the OHS Act are still available.
  5. Section 26 of the OHS Act will not apply to “reckless conduct” so directors and managers will not automatically be deemed guilty when an employer is found guilty of reckless conduct.
  6. The prosecution must prove beyond reasonable doubt that a defendant recklessly caused the death of someone, but the defendant only needs to prove on the balance of probabilities that he or she is not guilty.
  7. A right of trial by jury is not available to an accused but anyone sentenced to a term of imprisonment for reckless conduct can appeal to the Court of Criminal Appeal against the sentence.
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