The model Work Health and Safety Act (Model Act) and the model Work Health and Safety Regulations (Model Regulations) have recently been amended by Safe Work Australia (SWA). These amendments implement the agreed response by WHS Ministers in May 2021 (see our earlier blog article here) to the recommendations contained in the Marie Boland independent review of the model Work Health and Safety Laws final report (published in February  2019) (Boland report).

One of the notable omissions from the amended Model Act is an industrial manslaughter offence. Despite being a recommendation in the Boland report, its inclusion was not approved by WHS Ministers when they met in May 2021.  The Labor government’s ‘ALP National Platform’ issued prior to the election stated, amongst other things, that “Labor will support the states and territories to implement industrial manslaughter laws and the development of harmonised industrial manslaughter legislation”[1].  While industrial manslaughter provisions now exist in A.C.T., N.T., Queensland, Victoria and Western Australia, this may still be a ‘watch this space’ for the remaining jurisdictions.

As discussed in our recent blog article, SWA’s amendments to the Model Regulations includes the imposition of a duty on PCBUs to manage psychosocial risks and implement control measures that eliminate psychosocial risks so far as is reasonably practicable, or if elimination is not reasonably practicable, to minimise these risks (see regulations 55A – 55D of the Model Regulations). This adds to the increasing WHS regulatory focus on risks to psychological health and is an area that PCBUs should be actively addressing.

In addition, other amendments made by SWA are broad-ranging and include:

  1. An element of the Category 1 offence now includes that a person ‘engages in the conduct with gross negligence’. The prosecution will be required to prove either gross negligence or recklessness (namely, that the person was “…reckless as to the risk to an individual of death or serious injury or illness”) (section 31 of the Model Act).  The amended explanatory memorandum states that “…[p]roviding an alternative fault element of gross negligence is intended to lower the threshold for conviction for Category 1 offences[2]”.
  1. Removing the requirement from the Model Act for a WHS permit holder to provide (at least) 24 hours’ notice of intended entry to a workplace if they reasonably suspect that a contravention of the Act has occurred or is currently occurring (section 117 of the Model Act). A WHS entry permit holder still needs to provide a minimum of 24 hours’ notice to enter, inspect and make copies of employee records or other documents directly relevant to a suspected contravention held by someone other than the relevant PCBU.
  1. Enabling inspectors to give written notice, within 30 days after the day of a workplace entry, requiring a person to produce documents, or provide written answers to specified questions or attend before an inspector and answer any questions put by the inspector (section 171 of the Model Act). A similar amendment to provide for a 30 day period has already been implemented in New South Wales and Queensland.
  1. Clarifying that a regulator’s notice under section 155 of the Model Act can be served on a person outside of the regulator’s State or Territory jurisdiction, and in relation to information, documents or evidence outside that State or Territory, or relating to a matter happening outside that State or Territory.

The explanatory memorandum says the amendments clarify that “a regulator can exercise their power under clause 155 extra-territorially”.  According to the Boland report, this issue was raised by regulators who queried the “…scope of information-gathering powers …in the context of the ability to interview workers (under the powers of the regulator to obtain information under s 155 of the model WHS Act) when companies have moved key staff interstate or offshore after an incident (particularly where there has been a fatality). In face-to-face meetings, a few regulators sought clarification on the use of their powers to compel the provision of information from another jurisdiction.

Despite the decision in Perilya v Nash [2015] NSWSC 706 there was a concern that the courts might interpret the model provision more narrowly outside of NSW.  Therefore the recommendation was made for clarification of the extraterritorial application of s 155.

  1. Allowing regulators to disclose and provide access to information to other persons (including other regulators) and use information in circumstances where doing so is necessary to fulfil duties under WHS legislation (section 271A of the Model Act).
  1. Prohibiting the entry into contracts of insurance or other arrangements (including a grant of indemnity) covering a person for liability for monetary penalties, and making it an offence to enter into such a contract or arrangement (section 272A of the Model Act). This follows similar amendments that have been made in NSW and Victoria and the new WA WHS Act. The Model Act also contains an offence that applies to officers of a body corporate, to target the conduct of individuals that results in a body corporate contravening section 272A.
  1. Introducing a timeframe of between 6 months to 18 months after a relevant act (or matter or thing) for a person to make a written request for a prosecution to be brought, where they ‘reasonably consider that the occurrence of [the] act, matter or thing constitutes a Category 1 offence or a Category 2 offence’ (section 231 of the Model Act).
  1. Clarifying that a HSR can attend a regulator approved, training course of their choice (section 72 of the Model Act).

Details of all of SWA’s amendments can be found here.

Each State and Territory (other than Victoria) will now consider necessary amendments to implement these changes.

The author acknowledges the contribution of Darcy Moffatt to this article.

[1] 2021-alp-national-platform-final-endorsed-platform.pdf at page 29

[2] Explanatory Memorandum – Model Work Health and Safety Act (safeworkaustralia.gov.au) at page 19

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