In the last 10 years there were 359 reported workplace deaths in Victoria. Fortunately the rate of deaths has dropped from 46 in 1992 to 29 last year but any death is unacceptable.
The reduction of these deaths is the stated aim of the Victorian Government's corporate manslaughter legislation due to be debated in the current session of Parliament. Unfortunately the legislation is seriously flawed with double standards and inconsistencies that run the risk of distorting rather than improving workplace safety.
The legislation holds "systems" instead of people criminally culpable, makes "senior officers" in corporations but not in government jailable, and causes transfer of criminal responsibility from one person to another.
To understand these distortions the Coroner's report into the tragic deaths of five volunteer firefighters at Linton in 1998 is valuable. If corporate manslaughter principles were applied to the Linton tragedy, the head of the Country Fire Authority, the Director of the Department of Natural Resources, Ministers, and the Premier could be charged with manslaughter. They could face jail terms of up to 7 years even though they had nothing to do with the Linton events.
The Coroner found that a "dysfunctional" system of control by the CFA and department contributed to the deaths. Corporate manslaughter focuses responsibility on corporate control systems holding a board and directors responsible. This shifts the idea of criminal liability away from personal, direct actions and holds one person jailable for the actions of another. Would the jailing of a Premier stop another Linton tragedy?
But under the legislation corporations are criminally responsible but not government. The chairman of a corporation can go to jail, but not the chairman of government. Further, the legislation creates criminality for the death of an employee but not a volunteer. A paid director of a corporation is liable but not an unpaid director.
If the Linton firefighters had been employees and the government departments corporations the senior managers could face criminal charges. But they won't under this Bill!
Why the double standards? Why is different value placed on the life of an employee, than the life of a volunteer? Why should Ministers have a lower level of criminal liability than directors of a corporation? Why should a paid director be held more liable than an unpaid director?
These inconsistencies are dangerous. If two people are to be tried for exactly the same criminal act, why should one go free because they were unpaid while a paid person goes to jail? Isn't a volunteer victim entitled to the same justice as an employee victim? Shouldn't everyone have a right to equal treatment before the law regardless of their class, race or legal position?
In the last 10 years 45 workplace deaths occurred in the public and community services sectors, nearly as many who died in manufacturing. Why should the public sector be treated differently to the private sector?
The Bill will impact on small and medium business and the rural sector. Farming accounts for one third of workplace deaths. Under the Bill the wife of a farmer could be criminally liable for a tractor-related death of her husband because she was a director of their family company?
No one has explained how distorting criminal justice will reduce deaths. Instead there is a real risk it could increase deaths.
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