Australia: State Of Play – Harmonising Officers' Health And Safety Duties

The push to harmonise the law surrounding the imposition of health and safety duties on officers has largely been achieved in the Work Health and Safety space and more broadly, while the process appears to have stalled in the petroleum operations arena.


Over time the regulation of the activities of officers and directors had developed so that it could be said to fall within three broad categories of liability, namely, direct, accessorial or derivative:

Direct liability refers to situations where the officer is held liable because of his or her own conduct.

Accessorial liability is a form of direct liability and is applicable where the officer intentionally or knowingly participates in, has aided or abetted or conspired with others to effect, a contravention by a company.

Derivative liability imposes guilt as a consequence of the person's position within a company or operational responsibility in relation to the conduct that contravened the law.  This class of liability attaches to the officer without the need to establish that the person themselves directly breached any law or was otherwise an accessory to the misconduct of the company.

Work Health and Safety

Due diligence duty on officers

Under the model Work Health and Safety (WHS) laws now operating in most Australian jurisdictions – see our earlier update here, officers of a PCBU (person conducting a business or undertaking) are required to exercise due diligence to ensure that the PCBU is complying with its obligations under the WHS laws. The duty of due diligence specifically requires an officer to take reasonable steps to:

  • acquire and possess current knowledge of work health and safety matters;
  • gain an understanding of the nature of the operations and any hazards and risks the operations may include;
  • ensure that the PCBU has available resources and processes and uses them appropriately to minimise risks to health and safety;
  • ensure that the PCBU has processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely manner;
  • ensure that the PCBU has, and implements, processes for complying with any duty or obligation the PCBU is required to uphold; and
  • verify that those processes are implemented.

The list is not exhaustive, and some circumstances may warrant other reasonable steps for the officer to undertake.

Who is an 'officer' for the purposes of the WHS laws?

An officer is defined, with some exceptions, as an officer within the meaning of section 9 of the Corporations Act 2001 (Cth), which includes:

  • directors or secretaries of a corporation;
  • a person who makes, or participates in making, decisions that affect the whole, or a substantial section of the organisation of a corporation;
  • a person who has the capacity to significantly affect the corporation's financial standing; and
  • a person who provides instructions to directors of a corporation, which are subsequently followed by the directors.

The definition of officer has potentially broad reach and may capture employees performing middle management roles.

How does this differ from the previous model?

The imposition this positive duty on officers differs significantly from the traditional approach to the work health and safety laws. Previously, work health and safety laws:

  • imposed accessorial liability on officers or other key management personnel;
  • prescribed general obligations which allowed for flexibility for duty holders to adopt a suitable approach to managing risk within the structure of their organisation.

As explained when the WHS laws were introduced, the imposition of a due diligence duty reflects a deliberate policy shift away from applying accessorial liability to officers. The positive obligation to exercise due diligence requires officers to continuously be proactive to ensure the PCBUs compliance with its duties and obligations under the WHS laws. An officer will only be seen to comply with their duty by taking an active and inquisitive role in planning and performing health and safety initiatives.

Under the WHS laws, officers may be liable for failing to exercise due diligence despite the fact that the PCBU is complying with its obligations, or even without an incident in the workplace occurring.

Although there is some guidance material available in relation to the duty, there is no case law yet defining the scope of due diligence under the WHS laws.

Prosecution and Penalties

Proceedings under the WHS laws against officers are 'quasi' criminal proceedings.  There is no requirement to prove the mental element of the offence, except for category one offences, which require recklessness.

Irrespective of the mechanics of the proceedings, a breach of the duty is a criminal offence and significant pecuniary penalties apply.

The categories and penalties are as follows:

Category Description Penalty

Recklessly engage in conduct that exposes a person to risk of death or serious injury

A fine of up to $600,000 or 5 years jail


Failure to comply with a health and safety duty or electrical safety duty that exposes a person to risk of death, serious injury or illness

A fine of up to $300,000


Failure to comply with a health and safety duty or electrical safety duty

A fine of up to $100,000

Case study: first prosecution of an officer under the due diligence provisions

In March 2012, Kenoss Contractors Pty Ltd (Kenoss Contractors) was performing work at a site in the Australian Capital Territory (ACT) when truck driver Michael Booth was electrocuted and killed when his truck trailer made contact with a power line at a dumping station. WorkSafe ACT identified that the power line was in a low position and that a properly conducted risk assessment would have eliminated the risk if the dumping station had been placed in a different location.

A senior officer and project manager of Kenoss Contractors, Munir al-Hasani, was prosecuted in relation to the incident under the ACT's harmonised Work Health and Safety laws for allegedly failing to exercise due diligence. Mr al-Hasani was charged with two category 2 offences.

Mr al-Hasani pleaded not guilty to both charges on the grounds, we understand, that the dumping ground had been transferred to another contractor, Mr Booth had been told not to use the dumping station and that he should, in any case, have used small machinery due to the position of the power lines.

Also in issue was whether Mr al-Hasani was an officer of Kenoss Contractors, or a related company.

On 23 June 2015 Industrial Magistrate Lorraine Walker dismissed the charges against Mr al-Hasani on the ground that it had not been established that he met the definition of an 'officer'. The learned Magistrate found that Mr al-Hasani's role reflected an operational one with only "speculative" evidence that the role went beyond this. Accordingly, the learned Magistrate was not satisfied beyond reasonable doubt that he had a large enough level of control or influence in Kenoss Contractors to be classified as one of its officers.

As the charges were dismissed on this threshold issue, it was not necessary for the learned Magistrate to consider whether Mr al-Hasani breached the due diligence obligation imposed on officers. Interestingly, however, we understand the learned Magistrate found he had breached his duty as an employee of Kenoss Contractors but as he had not been charged with any offence as an employee this could not be taken any further.

The judgment is expected to be published shortly.

Directors' Liability Reform

The substance of the reform

Harmonised changes to the liability faced by officers are also happening more generally across Australia with potential consequences reaching far beyond the WHS space.  These changes will have an impact on an officer's potential liability for safety related offences relating to a range of issues, including dangerous goods, mining operations, radiation and railways.

As with the changes made in the WHS arena, the Council of Australian Governments agreed to reform directors' liability with respect to deemed criminal liability.

The essence of the changes is to limit and standardise provisions which impose criminal liability on officers of a body corporate, as defined in the Corporations Act, 2001 (Cth) when the corporation commits an offence.

The standard provisions create 3 different levels of liability as follows:

Type Level of liability Onus and standard of proof

The officer is presumed not liable

Prosecution has the onus to prove beyond reasonable doubt that the officer failed to take reasonable steps to prevent the body corporate from committing the offence


The officer is taken to have committed the offence by the body corporate

Initially the officer must adduce evidence that suggests a reasonable possibility that he or she took all reasonable steps to prevent the commission of the offence by the body corporate.  The prosecution then has the onus of proving the officer did not take all reasonable steps


The officer is deemed guilty

The officer has the onus of proving on the balance of probabilities that he or she took all reasonable steps

At the heart of the standardised liability is the requirement to take all reasonable steps to prevent the body corporate committing an offence and to move away from the harm that results from derivative liability. Consequently, the standardised levels of liability are neither accessorial, direct nor derivative. Having said that, the changes are not intended to remove the imposition of direct, accessorial or even derivative liability where considered appropriate.

In determining whether things done or omitted to be done by an officer constitute reasonable steps, a court must have regard to:

  • what the officer knew, or ought to have known, about the commission of the offence by the body corporate; and
  • whether the officer was in a position to influence the conduct of the body corporate in relation to the commission of the offence; and
  • any other relevant matter, which is likely to include matters which are held to be relevant in determining due diligence under the WHS laws.

There are clear similarities between the due diligence position under the WHS law and the substance of the requirement to take all reasonable steps. Furthermore, like the WHS law, an officer who is found to have failed to take all reasonable steps in a particular circumstance may be charged with, and convicted of, an offence whether or not the body corporate is charged with or convicted of the offence.

Status of the reform process

The majority of states and territories have now enacted legislation implementing these changes. Tasmania and the Northern Territory have not yet passed their proposed legislation and the Western Australian Government is presently considering a report from the Standing Committee on Uniform Legislation and Statutes Review Committee on its Directors' Liability Reform Bill 2015 that was tabled in the WA parliament on 21 April 2015.

In those jurisdictions where the laws have come into effect a considerable number of liability provisions have been removed and many remaining provisions have been modified to Type 1 liability provisions.

There have been some differences in application, however, including:

  • both NSW and Queensland imposing, with limited exceptions, only Type 1 and 'deemed' liability provisions, which are similar to accessorial liability provisions.  Essentially, these changes reflected a desire to steer away from provisions which involved some form of a reversal of the onus of proof (such as Type 2 and 3 offence);
  • the use, other than in South Australia, of an expanded definition of 'officer' that extends the range of persons potentially liable beyond the already broad definition of officer within the meaning of section 9 of the Corporations Act 2001 (Cth); and
  • the application in a number of NSW Acts of an express definition of 'reasonable steps'.

There is no case law yet addressing these new laws.

What's happening with petroleum safety laws?

Historically, personal liability has not been imposed on individuals for contraventions by a company of Australian petroleum safety laws.

In late 2012 the Australian federal government announced its intention to introduce legislation imposing a due diligence duty on officers involved in offshore petroleum operations.  It was expected that when those changes were made they would be adopted by the states and territories in accordance with the National Partnership Agreement to Deliver a Seamless National Economy and would therefore apply to officers of petroleum companies operating in state and territory waters.

However, at this time, no amendments to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (as amended) (OPGGS Act), or any corresponding state or territory laws, have been introduced to impose a due diligence duty on officers involved in offshore petroleum operations.

There have been a number of other amendments recently made to the OPGGS Act to implement the Australian Government's response to the Report of the Montara Commission of Inquiry. These have included amendments to strengthen the regulatory regime by ensuring that enforcement measures for contraventions of the OPGGS Act are appropriate, including by increasing the penalties that apply to OHS duty holders for a failure to comply with duties of care.

Next steps

Although we may learn some more about the criteria for meeting the definition of 'officer' when the Kenoss Contractor decision is published, there remains little direct judicial guidance on the due diligence duty under the WHS laws, the reasonable steps requirement more generally and to what extent harmonisation of officer health and safety duties has been achieved.

We will continue to monitor developments and provide further updates in due course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions