The author acknowledges the contribution of Artemis Sfendourakis to this article.
On 1 December 2022, the Work Health and Safety Amendment Bill 2022 (Amendment Bill) was introduced by the Federal government to amend the Work Health and Safety Act 2011 (Cth) (Cth WHS Act).
The Amendment Bill seeks to implement some of the recommendations made in Marie Boland’s, Review of the model Work Health and Safety laws – Final report (Boland Review) (see our blog here regarding the Boland Review) and to adopt the June 2022 amendments to the model Work Health and Safety Bill (Model WHS Bill) produced by Safe Work Australia (see our earlier blog here).
Importantly, the Amendment Bill proposes to amend the Category 1 offence in the Cth WHS Act to include ‘negligence’ as a fault element, in addition to recklessness. The explanatory amendment to the Amendment Bill confirms that the definition of ‘negligence’ under section 5.5 of the Criminal Code Act 1995 (Cth) reflects the common law meaning of “gross negligence” and that its introduction is intended to have the effect of lowering the threshold for conviction of a Category 1 offence under the Cth WHS Act.
The provisions of the Amendment Bill are consistent with the recent amendments to the Model WHS Bill and the recent, yet to commence, amendments to the Work Health and Safety Act 2011 (ACT) (ACT WHS Act) (discussed further below).
WHS Act amendments in other jurisdictions
In addition to the Commonwealth, other jurisdictions that have made amendments to the WHS Act following the Boland Review include NSW (see our blog here regarding the key amendments in June 2020) and, more recently, the ACT.
On 9 December 2022, the Workplace Legislation Amendment Act 2022 (ACT) was notified. It amends the ACT WHS Act and seeks to implement nine recommendations from the Boland Review with the majority of the amendments to come into effect on 9 June 2023.
The Model WHS Bill and the Work Health and Safety Act 2011 (NSW) (NSW WHS Act) have each introduced ‘gross negligence’ into the Category 1 offence. Once the amendments come into force, the ACT WHS Act will include ‘negligence’ as an element of the Category 1 offence.
The other jurisdictions which have enacted the WHS Act have not implemented these changes to the Category 1 offence although negligence is a fault element of the industrial manslaughter offences in the WHS legislation in Queensland and the N.T.
‘Gross negligence’ is also an element of the proposed industrial manslaughter offence which is contained in the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022 (SA) which has been released for feedback by the South Australian government.
In an important first, once the amendment provisions commence in the ACT, a ‘sexual assault incident’ meaning “…an incident (including a suspected incident) in relation to a workplace that exposes a worker or any other person at the workplace to sexual assault” will be a notifiable incident.
In notifying the regulator of a sexual assault incident, a PCBU does not need to preserve the incident site and need only give a description of the workplace and whether the incident was reported to police. The PCBU must not give information disclosing the identity of any person involved in the incident.
Summary of the Amendment Bill (Cth)
The proposed amendments contained in the Amendment Bill include:
- Determination of work groups: A drafting change (from “will” to “are proposed to”) to clarify that work groups are negotiated and agreed between the PCBU and the workers who are proposed to form the work group or their representatives.
- Training HSRs: Health and safety representatives (HSR) can choose a training course without consulting the PCBU about the choice of training course.
- Section 155 WHS Act: While currently a regulator may serve a written notice under section 155, the proposed amendments will allow for issuing or giving a notice including by personal delivery or by post, facsimile or electronic transmission to the last known place of business. While a section 155 notice must contain a statement to the effect that failure to comply is an offence, a technical amendment to that statement is proposed to clarify that it is only an offence to fail to comply “without reasonable excuse”.
- Section 171 WHS Act: New provisions to permit an inspector’s powers under section 171 WHS Act to be exercised within 30 days following entry into a workplace and allow for issuing or giving a notice including by personal delivery or by post, facsimile or electronic transmission to the last known place of business. New section 171(2A) WHS Act will allow a person asked to attend before the inspector, to request that that attendance be via audiovisual or audio link and the documents and answers requested may only relate to the purpose for which the inspector entered the workplace.
- New provision section 272A WHS Act: prohibits entering into, providing or taking the benefit of an insurance contract, other arrangements or indemnity that covers the costs of a monetary fine or penalty imposed on a person under the Cth WHS Act. It will be a defence if the person can show they had a “reasonable excuse”. In a proceeding for contravention, the defendant will have the evidential burden to prove they had a reasonable excuse.
- New section 272B WHS Act: creates an offence where a body corporate contravenes section 272A and the person is an officer of that body corporate who was “involved” in the body corporate’s contravention.
Some of the proposed provisions in the Amendment Bill such as the determination of work groups, changes to section 155 and some of the amendments to section 171 (other than the power to issue the notice within 30 days of attendance at the workplace) do not appear in the NSW WHS Act or are included in slightly different terms from the Model in the NSW WHS Act.
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 Section 5.5 Criminal Code Act 1995 (Cth) provides: “A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence”.
 Explanatory Memorandum, Work Health and Safety Amendment Bill 2022, Schedule 1, paragraph 12 (The Explanatory Memorandum).
 Feedback is open until 10 February 2023.
 Workplace Legislation Amendment Act 2022 (ACT), Part 4, items 21 to 24 and item 46.
 Work Health and Safety Amendment Bill 2022 (Cth), Schedule 1, item 5 which proposes to amend section 52(1)(b) Work Health and Safety Act 2011 (Cth) (WHS Act (Cth)).
 Work Health and Safety Amendment Bill 2022 (Cth), Schedule 1, item 9 which proposes to amend section 155 WHS Act (Cth).
 Work Health and Safety Amendment Bill 2022 (Cth), Schedule 1, items 11 to 13 which proposes to amend section 171 WHS Act (Cth).
 Work Health and Safety Amendment Bill 2022 (Cth), Schedule 1, items 17 and 18 which propose to amend section 171 WHS Act introducing sections 171 (2A), (2B) and (2D).
 A person is ‘involved in’ a contravention if the person:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether by threats or promises or otherwise; or
(c) been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) conspired with others to effect the contravention.
 Noting that the amendments to the Model WHS Bill were published in June 2022 and the NSW amendments passed in June 2020