Is Assaulting a Retail Worker a More Serious Offence in NSW?

The New South Wales Government is seeking to introduce tough new laws, aiming to protect retail workers from assaults, following evidence that a majority of workers have been abused or assaulted.

The Crimes Legislation Amendment (Assaults on Retail Workers) Bill 2023 was introduced to Parliament on Wednesday, 28 June 2023 and is currently being debated in the Legislative Assembly.

Research from the McKell Institute (commissioned by the Shop, Distributive and Allied Employees Association) has found that 85% of retail workers have been abused or assaulted whilst at work.

“Everyone should be treated with decency and respect while at work. There is no excuse for assaulting anyone, particularly not someone who is doing their job.

“This Bill reflects our government’s commitment to support our workers and ensure their safety in the workplace.” said NSW Premier, Chris Minns.

The bill aims to introduce three new offences, with increased penalties based on the victim being a retail worker in the course of their duties.

It defines ‘retail worker’ as a person whose duties primarily involve working in an area of a shop open to the public.

The bill also provides that an action will be taken to be carried out in relation to a retail worker in the course of the worker’s duty,if the action is carried out as a consequence of, or in retaliation for, actions undertaken by the retail worker in the course of their duty, even if the worker is not on duty at the time.

If passed, the bill will criminalise assaulting, throwing a missile at, stalking, harassing, or intimidating a retail worker in the course of the worker’s duty, even if no actual bodily harm is caused to the worker, with a maximum penalty of 4 years’ imprisonment.

Where a retail worker is assaulted and this causes actual bodily harm, a maximum penalty of 6 years’ imprisonment would be applicable.

Actual bodily harm refers to an injury that need not be permanent but is required to be more than merely ‘transient’ or ‘trifling’ (as explored in R v Donovan [1934] 2 KB 498). Examples include scratches or bruises.

The bill also seeks to criminalise wounding or causing grievous bodily harm to a retail worker in the course of their duty, whilst being reckless as to causing actual bodily harm to the worker or another person. A maximum penalty of 11 years imprisonment would be applicable.

Wounding refers to an injury involving the breaking or cutting of the interior layer of the skin (as explored in R v Shepherd [2003] NSWCCA 351 at [31]).

Grievous bodily harm is any ‘really serious injury’ and includes any permanent or serious disfiguring of the person, as well as the destruction of the foetus of a pregnant woman (whether or not the woman suffers any other harm), and any grievous bodily disease, as defined by section 4(1) of the Crimes Act 1900 (NSW). However, the injuries or their consequences are not required to be permanent, long lasting, or life threatening (as explored in Haoui v R [2008] NSWCCA 209).

The maximum penalties associated with the new offences are substantially more severe than general assault provisions.

NSW Attorney General, Michael Daley said: “everyone deserves to feel safe at work and that includes retail workers, they are essential to our economy and society and should not be subject to violence, abuse, or threats.

“The new offences will carry more severe penalties than general assault provisions, and send a strong message that this behaviour is unacceptable,

“We are committed to ensuring the justice system protects workers and that penalties are appropriate and meet community standards.”

In their statement, the Government noted that during the pandemic retail workers were highlighted as ‘essential workers’ and were unfortunately exposed to increased abuse whilst on the job.

They also noted: “videos of retail workers being assaulted have been widely shared on social media with many shocking and violent abuses caught on camera.”

For example, videos of an incident at a McDonald’s at Wynyard Train Station have recently gone viral, in which a fight occurred between a 17-year-old and a 15-year-old, and a 23-year-old worker.

Officers attached to the Sydney City Police Area Command were advised that the employee of the McDonald’s had been assaulted by the teenagers, at around 1am in the morning on a Thursday.

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