The Model Act
New South Wales, Queensland, South Australia, Tasmania and the Territories have broadly similar WHS laws based on the model Act developed by Safe Work Australia (Model Act). Under the Model Act, officers have a duty to exercise due diligence to ensure that their organisation complies with its WHS duties and obligations. 'Officer' has the same meaning as under the Corporations Act 2001 (Cth) and therefore includes not only directors, but any person who makes or participates in making decisions that affect the whole or a substantial part of the business of the corporation. This means that a wide range of executives, managers and organisation heads may be captured by the definition of officer under the Model Act.
Officers in Victoria do not have a positive duty to exercise due diligence with regard to WHS. However, if a body corporate commits a contravention of the Occupational Health and Safety Act 2004 (Vic), and the contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer may be guilty of an offence. As with the Model Act, 'officer' has the same meaning as under the Corporations Act 2001 (Cth).
Officers in Western Australia also do not have a positive duty to exercise due diligence, although this is likely to change as Western Australia appears to be on the path towards WHS harmonisation. On 23 October 2014, a Work Health and Safety Bill 2014 (WA) was tabled for public comment up to 30 January 2015. It contains the same officer liability provisions as the Model Act. The public comment process identified the need for some further modifications that will be put to Cabinet, however, it is not clear whether this would affect the officer liability provisions.
Until the law changes, however, a director, manager, secretary or other officer may be deemed to have committed the same WHS offence as a company if the offence occurred with the consent or connivance of that person or was attributable to that person's neglect.
An officer's duty of due diligence in respect of Australian WHS law can apply wherever decisions are taken, whether in Australia or overseas. Moreover, the fact that an officer is geographically or operationally remote from the circumstances giving rise to an incident is unlikely to make them immune from prosecution, although their location may present practical difficulties for the regulator.
In all jurisdictions, only the most serious offences carry the risk of an officer being imprisoned (eg offences involving reckless disregard for health and safety). The maximum penalties per offence across Australia for organisations and their officers are currently as follows:
|State / Territory
||Directors / officers
|New South Wales, Queensland, South Australia, Tasmania and the Territories
||$500,000 to $3,000,000*
- $100,000 to $500,000; and /or
imprisonment for up to 5 years*
$1,399,140 (9,000 penalty units) to $3,109,200 (20,000 penalty units)* **
- $279,828 (1,800 penalty units) and/or
- imprisonment for up to 5 years
||$500,000 (1st offence)
$625,000 (2nd or subsequent offence)
- $250,000; and/or
- imprisonment for up to 2 years (1st offence)*
- $312,500; and/or
- imprisonment for up to 2 years for a second or subsequent offence
* depending upon the seriousness of the offence
** amounts are correct from 1 July 2016 but are indexed annually due to the indexation of penalty units.
Changing behaviours to mitigate risk
The officer liability provisions, and in particular the duty of officers to exercise due diligence with regard to WHS, have been and will continue to be a catalyst for increasing focus on WHS by senior management and boards of directors. Officers can exercise due diligence by:
- maintaining up to date knowledge of WHS law;
- understanding the risks of their organisation's business;
- ensuring that resources for safety are available and used; and
- ensuring that the organisation has processes in place for responding to hazards and complying with WHS law.
Ultimately the risk of prosecution comes back to the quality of the organisation's WHS systems.