New South Wales has introduced a WHS Amendment Bill (Bill) in response to the recommendations of the Marie Boland report issued in February 2019 (see our blog article here regarding the Marie Boland review). The changes, if passed, will commence on the day they receive royal assent.
The Bill proposes to:
- increase maximum penalties (with the maximum penalty for category 1 offences to increase from $3 million to $3.46 million);
- create a penalty unit system to ensure maximum penalties increase every year to reflect changes to the consumer price index;
- prohibit insurance against safety fines for offences under the WHS Act (this offence will also apply to officers) – however this provision will not apply to insurance policies that are in force before the commencement of the Bill where any payment made does not relate to an incident that occurred after the commencement of the Bill;
- clarify that in certain circumstances, the death of a person at work can constitute manslaughter under the NSW Crimes Act 1990, with a maximum penalty of 25 years’ imprisonment; and
- add “gross negligence” as a fault element to the existing category 1 offence.
In the Bill’s second reading speech, the Minister for Better Regulation and Innovation noted that any changes to the model Act following the Marie Boland review won’t be progressed until well into next year, and having regard to the critical issues identified by Marie Boland, New South Wales “cannot afford to wait until a decision is made to amend the model Act to address these issues.”