Australia: Changes to the Model Work Health and Safety Laws

Last month, SafeWork Australia revealed a suite of significant changes to the Model Work Health and Safety Act, Regulations and Codes of Practice (Model Law).

The changes follow a number of recommendations that arose from Marie Boland’s independent review of the content and operation of the Model Law (Boland Review) in 2018.  In May 2021, Ministers responsible for work health and safety (WHS) from the Commonwealth and each state and territory, met to discuss the ‘Decision Regulation Impact Statement’, which was prepared by Safe Work Australia, in response to the recommendations that arose from the Boland Review.

The Ministers’ agreed response to the Boland Review has resulted in 20 changes to the Model Law (with 14 more on the way), including the following:

• Amending the model WHS Regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks;
• Prohibiting insurance against WHS penalties; and
• Adding ‘gross negligence’ as a fault element to Category 1 - reckless conduct offence, allowing prosecutors to prove either the fault element of gross negligence or of recklessness.

While the Model Law is intended to provide the framework for a nationally consistent approach to WHS law across the various Australian States and Territories, amendments to it do not automatically apply in each jurisdiction. Rather, each State and Territory must adopt the amendment before the change will take effect as local law. That said, some jurisdictions have already adopted a number of the recommendations that arose from the Boland Review.  For example, Victoria, New South Wales and Western Australia have already implemented provisions which prohibit insurance arrangements in respect of WHS fines. Victoria (although not a ‘Model Law’ jurisdiction), has recently proposed new Occupational Health and Safety Amendment (Psychological Health) Regulations which deal with the identification and management of ‘psychosocial’ risks in the workplace in response to recommendations from the Royal Commission into Victoria’s Mental Health System. If passed, the regulations are expected to commence in July 2022.

Notably, the WHS Ministers did not agree to amend the Model Law to provide for a new offence of industrial manslaughter. Nevertheless a number of jurisdictions (Australian Capital Territory, Northern Territory, Queensland, Western Australia and Victoria) have introduced their own version of the offence. The new South Australian Labor Government has also committed to introducing an industrial manslaughter offence.

While a nationally consistent offence of industrial manslaughter has not been agreed, there was consensus to amend the Model Law to extend the ‘Category 1 – reckless conduct offence’ to include circumstances where a duty holder is ‘grossly negligent’. Previously to prove a Category 1 offence prosecutors were required to establish the notoriously high fault element of ‘recklessness’. As a result there had been very few successful prosecutions of this offence leading to the Boland Review recommendation that the Model Law be amended to provide for instances of gross negligence. Notably, unlike an industrial manslaughter offence (which would require a fatality to occur), a Category 1 offence relates to the exposure of individuals to risk by a duty holder – and so, it has the potential to apply more broadly (and lead to more prosecutions) than an industrial manslaughter offence.

In addition to the above changes, a further 17 amendments have now been incorporated into the Model Laws to give effect to the Boland Recommendations as agreed by the National WHS Ministers. A complete list of the Boland Recommendations, including changes to the Model Laws, and whether each individual jurisdiction has adopted those changes is detailed here. This table also identifies those recommendations that have been agreed but are not yet implemented into the Model Laws.

If you would like further information or guidance in relation to the changes, please contact any member of our national Work Health and Safety team.

This article was prepared by Steve Bell, Partner, Julie Marotta, Special Counsel, and Shaesta Nand, Senior Associate.