The New South Wales Parliament has passed significant changes to the Work Health & Safety Act 2011 (WHS Act). The Work Health and Safety Amendment Bill 2020 (the Bill) received assent on 10 June 2020. The amendments in the Bill commenced on that day.

Where did these amendments come from?

The Bill aimed to expedite the implementation in New South Wales of 12 proposals based on recommendations of a national review of the model Work Health and Safety Act 2011 (Cth) on which the NSW Act is based. There are two national reports of note in this regard.

The first was entitled They never came home – the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia. That report highlighted a number of issues with prospecting and investigating workplace death in New South Wales.

The second report was the 2018 review of the of the model work health and safety laws commissioned by Safe Work Australia.

While the recommendations made by these reports are not likely to be implemented until next year, New South Wales decided to immediately adopt such amendments.

What are the amendments to insurance arrangements?

The Bill inserted s272A and s272B into the Act. Section 272A creates an offence for entering into, providing or benefitting from insurance or other arrangements including indemnity arrangements, in relation to the payment of penalties for offences under the WHS Act. Further s272B makes officers of a body corporate liable for offences committed against s272A by the body corporate.

This amendment was based on the 2018 review and the Senate report which condemned the availability of this kind of insurance and found that it had the potential to seriously undermine the deterrent power of the Act. The rationale for this was that if those who breach the WHS Act are able through insurance to escape the consequences of their actions, their incentives to take those issues seriously will be substantially lessened.

The clear intention of the Government in proposing this new section is that there will now be an end to insuring for liability for work health and safety offences.

What are the changes to Inspector’s powers?

The Bill made amendments to the operation of s171 of the WHS Act.

Previously under that section a Safe Work NSW Inspector who had entered a workplace had certain powers which were exercisable at the workplace including requiring the production of documents and requiring people at the workplace to answer questions. Importantly, these powers were only exercisable at the workplace.

The amendments under the Bill provide that after an inspector has entered a workplace, that inspector (or another inspector) can exercise those investigative powers in s171 for up to 30 days after their entry into the workplace and without having to re-enter. This amendment includes powers to requiring the production of documents or requiring a person to answer questions.

This amendment makes an investigation far easier from an inspector’s point of view and arguably removes some requirements thought previously to practically prevent the exercise of such powers. According to the Minister’s second reading speech, requiring inspectors to enter and re-enter a workplace when they discover the need for further information had the potential to delay investigations, particularly in rural and remote areas.

How does this make prosecution easier in the case of workplace deaths?

Prior to this Bill, s31 provided that, in order for a person to be convicted of a Category 1 offence, the person had to be found to be reckless in exposing an individual to the risk of death or serious injury. The amendment includes an alternative fault element of gross negligence.

This amendment was based on an identified lack of Category 1 prosecutions. The 2018 review found that regulators were often finding the fault element of ‘recklessness’ too difficult to prove.

To clarify, a person acts recklessly when they have actual knowledge of a risk and consciously disregard it. To prove this, the prosecution would have to prove matters relating to the defendant’s subjective state of mind. By contrast ‘gross negligence’ only requires that the behavior falls so far short of what is reasonable and involves such a high risk of death or serious injury that it deserves criminal punishment.

What about industrial manslaughter?

There is no separate section which deals with industrial manslaughter in particular. According to the Minister moving the Bill, it has long been the case that if appropriate, a work related death can be prosecuted for manslaughter by criminal negligence under the Crimes Act 1900.

This bill inserts a new note into Part 2, Division 5 of the Act which clarifies this point.

What are the changes to penalties?

The Bill increased the maximum penalties for over 70 offences in the Act. This was said to be based on the movement in the Consumer Price Index since 2011. Further, that approach is extended to over 550 offences under the Work Health and Safety Regulation 2017.

Further, penalties will now be expressed in penalty units rather than in monetary amounts which the value of a penalty unit indexed to increase in accordance with increases in the consumer price index.

What about requests for prosecution?

The Bill has amended s231 to extend the time within which a person can make a request that a regulator bring a prosecution in relation to an accident involving a risk of death or serious injury or illness from 12 months to 18 months. If there is no prosecution, the person can request a review by the Director of Public Prosecutions.

A further provision requires regulators to provide three monthly updates to persons making such requests.