The long-awaited meeting of Australian WHS Ministers to discuss the response to the 34 recommendations contained in the Marie Boland independent review of the model Work Health and Safety Laws final report (published in February  2019) (Boland report), took place on 20 May 2021.  We have previously discussed the Boland report and its recommendations in the following blog articles (see here, here and here).

According to the Communique and ‘Agreed response to the Review of the Model Work Health and Safety Laws’ recently published, key issues agreed by the Ministers were, amongst other things, that:

  • The model WHS Act will not include an industrial manslaughter offence (Note: those offences now exist in the N.T., Queensland and Western Australian WHS Acts and in the A.C.T Crimes Act 1900 and the Victorian Occupational Health and Safety Act 2004 );
  • The element of ‘gross negligence’ will be included in the category 1 offence (Note: NSW has already amended its WHS Act to include this element);
  • Further consideration will be given to significant increases to penalties under the model WHS laws;
  • The WHS Regulations should be amended to deal with psychological injury (Note: NSW has very recently published a new ‘Code of Practice on Managing Psychosocial Hazards at Work’); and
  • Ministers are due to respond to the Commonwealth by end of June 2021 as to work planned or being undertaken in their jurisdictions to address sexual harassment.

Other interesting agreements reached by the Ministers were that the model WHS Act should be amended to:

  • Allow any inspector to exercise the powers to require production of documents and answers to questions within 30 days following another inspector’s entry to that workplace;
  • clarify that the regulator’s power to obtain information under s 155 has extraterritorial application;
  • Include a specific power enabling regulators to share information between jurisdictions in situations where it would aid them in performing their functions in accordance with the model WHS laws; and
  • Make it an offence to enter into a contract of insurance under which the person (or another) is covered for liability for monetary penalty under the model WHS Act and to take the benefit of such insurance or indemnity.

It was also noted that Safe Work Australia had already commenced work on reviewing the incident notification provisions in the model WHS Act to ensure that WHS regulators “have appropriate visibility of work-related psychological injuries and illnesses”.

The Ministers are due to meet again before the end of 2021 to receive progress reports from Safe Work Australia on the implementation of the agreed recommendations.