News · Criminal law
Industrial manslaughter in NSW and the ACT: workplace deaths, gross negligence and the new offence.
Workplace-safety prosecutions have run across the wire this week, from multiple actions commenced by a state regulator to a company fined after a fatal plant incident. Behind them sits a serious criminal offence that many business owners still do not know exists. Since 16 September 2024, New South Wales has had an industrial manslaughter offence under section 34C of the Work Health and Safety Act 2011 (NSW), carrying up to 25 years imprisonment for an individual. The ACT has had one since 2004. This note sets out who can be charged, what the prosecution must prove, the penalties, and how the offence differs from a Category 1 work health and safety charge. Framework only, no person named.
By Aaron Kernaghan · Published 31 August 2026
A workplace death is no longer only a safety matter.
For many years, when a worker died on the job in New South Wales, the person or company running the business faced a fine under the safety laws. Prison was a possibility only in rare cases run as common law manslaughter. That has changed. A death caused by gross negligence at work can now be charged as industrial manslaughter, a serious indictable offence that puts a director or manager at risk of a long prison sentence. This note explains the offence in NSW and the ACT, who it reaches, and what has to be proved.
None of what follows is about any particular prosecution now before the courts. The safety actions on the wire this week involve businesses and people who have not been tried, and who are presumed innocent. What follows is the legal framework that applies to a workplace fatality in New South Wales and the ACT, whoever is charged and whatever the outcome.
What is industrial manslaughter in NSW?
Industrial manslaughter is the offence in section 34C of the Work Health and Safety Act 2011 (NSW). It was inserted by the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 and commenced on 16 September 2024. In short, a business or a person who runs one commits the offence if they owe a work health and safety duty, breach it through grossly negligent conduct, and that breach causes a person's death.
The offence does not create any new safety duty. The duties are the ones that already sit in the Act, the duty of a business to ensure, so far as is reasonably practicable, the health and safety of its workers and of others affected by its work. What the new offence does is attach a criminal manslaughter charge to the most serious breaches of those existing duties. It is prosecuted on indictment, which means it is heard in the District Court or the Supreme Court, not before a magistrate, and in NSW it is run by the Office of the Director of Public Prosecutions.
Who can be charged?
Two groups can be charged. The first is a person conducting a business or undertaking, the PCBU. That term is wide. It takes in a company, a partnership, a sole trader, a government department, and an unincorporated association. The second is an officer of a PCBU. An officer is someone who makes, or takes part in making, decisions that affect the whole or a substantial part of the business. A director is an officer. So is a senior manager who holds that kind of decision-making power. Volunteers are excluded, and ordinary workers are not exposed to this particular offence.
This is the feature that sets industrial manslaughter apart from the older way of doing things. A company can be convicted and fined, but so can the individuals who ran it. An officer who was grossly negligent in the way the business managed a fatal risk can be charged personally and can go to prison. It is no answer that the company also carried a duty; the duties run in parallel, and a prosecution can be brought against the company, the officer, or both.
What must the prosecution prove?
Four things, each beyond reasonable doubt. First, that the accused was a PCBU or an officer of a PCBU who owed a work health and safety duty. Second, that the accused engaged in conduct that breached that duty. Third, that the conduct was grossly negligent. Fourth, that the breach caused the death of a person to whom the duty was owed. Causation and gross negligence are where these cases are fought.
Gross negligence is a high bar, and it is meant to be. It is not enough that the business made a mistake, or that a safer system was available with hindsight. The conduct has to fall so far below the standard of care a reasonable person would have shown, and carry such a high risk of death or serious injury, that it warrants criminal punishment. Causation asks a separate question: did the breach actually cause the death, or would the person have died anyway. A defence often lives in the gap between a safety failing and the cause of death, and that gap is worth testing carefully before any plea is entered.
What is the penalty for industrial manslaughter?
In New South Wales the maximum is 25 years imprisonment for an individual, and a fine of $20 million for a body corporate. Those figures put industrial manslaughter at the serious end of the criminal law. The 25-year maximum is the same as the maximum for manslaughter at common law under the Crimes Act 1900 (NSW), which is deliberate; Parliament has treated a grossly negligent workplace death as manslaughter by another name.
As with any offence, the maximum is a ceiling, not a starting point. A sentence turns on the gravity of the negligence, how obvious and how avoidable the risk was, the business's safety history, any steps taken after the death, and the personal circumstances of an individual officer. The ordinary sentencing factors in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which we set out in our note on the section 21A factors, apply to an individual sentenced for the offence.
How is it different from a Category 1 WHS offence?
The safety laws already had a serious offence for reckless or grossly negligent conduct: the Category 1 offence in section 31 of the Act. It is committed where a duty holder, without lawful excuse, recklessly or with gross negligence exposes a person to a risk of death or serious injury or illness. The key point is that no one has to die. Category 1 is about exposing a person to the risk. Industrial manslaughter under section 34C is about a grossly negligent breach that actually causes a death.
The penalties track the difference. Since 1 July 2024, a Category 1 offence in NSW carries up to $2.168 million or 10 years imprisonment, or both, for an individual PCBU or officer, and up to $10.42 million for a body corporate. Industrial manslaughter more than doubles the individual prison ceiling, to 25 years, and lifts the corporate fine to $20 million. Below Category 1 sit the Category 2 offence, for a breach that exposes a person to risk without recklessness or gross negligence, and the Category 3 offence, for a plain breach of a duty. A single fatality can produce charges at more than one level, and the regulator's choice of charge says a great deal about how it reads the conduct.
How does industrial manslaughter work in the ACT?
The ACT got there first. It was the first jurisdiction in Australia to create an industrial manslaughter offence, back in 2004, and the offence now sits in section 34A of the Work Health and Safety Act 2011 (ACT), where it was moved in November 2021. A PCBU or officer whose conduct breaches a WHS duty and causes the death of a worker, and who was reckless or negligent about causing that death, commits the offence. The maximum is 20 years imprisonment for an individual and a fine of $16.5 million for a body corporate.
Despite being the oldest such law in the country, the ACT offence has yet to produce a conviction, which is a reminder that these prosecutions are hard-fought and far from automatic. A workplace death in Canberra is investigated by WorkSafe ACT, and the same questions of gross negligence and causation arise. A business or officer facing scrutiny after a fatality in the ACT is in the same position as one in New South Wales, and the same early advice matters.
What to do after a workplace death.
A death at work sets off an investigation by the regulator, SafeWork NSW or WorkSafe ACT. Those bodies have strong powers. They can enter a site, seize documents, and require a person to produce records and answer questions. That is where the risk lies for a business owner or officer. Material gathered in a safety investigation can be used to build a manslaughter or Category 1 case, and what is said in the days after a fatality can decide whether a charge is laid at all.
Anyone who may be personally at risk should get advice before answering questions, and should understand both their right to silence and the limits of the regulator's compulsory powers. The same care applies to the workplace itself: preserving the scene, keeping records, and not speaking to the point of self-incrimination. Our note on the police interview and the caution covers the right to silence, and our note on the first thirty days of a serious matter explains why the work done at the start carries the most weight. A workplace-safety fatality is now criminal territory, and it should be treated as such from the first phone call.
Primary sources: the NSW offence is in the Work Health and Safety Act 2011 (NSW), at section 34C (industrial manslaughter), section 31 (Category 1), section 32 (Category 2) and section 33 (Category 3), inserted and amended by the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024. Guidance is published by SafeWork NSW. The ACT offence is in the Work Health and Safety Act 2011 (ACT), at section 34A, with guidance from WorkSafe ACT. Judgments on the work health and safety offences are searchable on JADE.
Common questions
What is industrial manslaughter in NSW?
It is an offence under section 34C of the Work Health and Safety Act 2011 (NSW). A business or an officer of one commits it if they owe a work health and safety duty, breach it with gross negligence, and that breach causes a person's death. It commenced on 16 September 2024. The maximum is 25 years imprisonment for an individual and a $20 million fine for a body corporate.
Who can be charged with industrial manslaughter?
A person conducting a business or undertaking (a PCBU), and an officer of a PCBU. A PCBU can be a company, partnership, sole trader, government department or unincorporated association. An officer is a person who makes, or takes part in making, decisions affecting a substantial part of the business, such as a director or senior manager. Volunteers are excluded, and ordinary workers are not exposed to this offence.
What must the prosecution prove?
Four things beyond reasonable doubt: that the accused was a PCBU or an officer who owed a WHS duty; that they engaged in conduct breaching that duty; that the conduct was grossly negligent; and that the breach caused the death of a person to whom the duty was owed. Gross negligence is a high standard, and causation is a separate question that must also be proved.
How is it different from a Category 1 WHS offence?
A Category 1 offence under section 31 is committed where a duty holder recklessly or with gross negligence exposes a person to a risk of death or serious injury. No one has to die. Industrial manslaughter under section 34C requires that the grossly negligent breach actually caused a death. A Category 1 offence carries up to 10 years for an individual PCBU or officer; industrial manslaughter carries up to 25 years.
Does the ACT have an industrial manslaughter offence?
Yes. The ACT was the first jurisdiction in Australia to create one, in 2004. It now sits in section 34A of the Work Health and Safety Act 2011 (ACT). A PCBU or officer whose breach of a WHS duty causes a worker's death, and who was reckless or negligent about causing it, faces up to 20 years imprisonment as an individual, or a $16.5 million fine for a body corporate.
What should you do if there has been a death at your workplace?
Get advice before answering questions. A workplace death triggers an investigation by SafeWork NSW or WorkSafe ACT, which can require documents and answers, and anything said can be used to build a prosecution. A PCBU or officer at real risk of an industrial manslaughter or Category 1 charge should understand their right to silence and the limits of the regulator's powers before any interview. The first days after a fatality often decide whether a charge is laid.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 31 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.