Australia: Independent review of national WHS laws underway

Safe Work Australia has appointed, independent reviewer, Ms. Marie Boland, to undertake a review of the model Work Health and Safety (WHS) laws. The purpose of the review is to scrutinize and report on the operation and content of the model WHS laws to ensure they are operating as intended. The first stage of the review process was Safe Work Australia releasing a discussion paper to inform about the public consultation process.

The Review

This review is the first to consider all aspects of the model WHS laws since their development and in summary will investigate whether:

  • the model WHS laws are operating as intended;
  • any areas of the model WHS laws have resulted in unintended consequences;
  • the framework of duties is effective at protecting workers and other persons against harm to their health, safety and welfare and can adapt to changes in work organisation and relationships;
  • the compliance and enforcement provisions, such as penalties and enforceable undertakings, are effective and sufficient to deter non-compliance with the legislation;
  • the consultation, representation and issue resolution provisions are effective and used by duty holders; and workers are protected where they participate in these processes; and
  • the model WHS Regulations, model Codes and National Compliance and Enforcement Policy ("NCEP") adequately support the object of the model WHS Act.

The broad topics outlined above raise for discussion, a number of key matters including the regulator functions, inspectors' powers and functions, effectiveness of penalties as a deterrent to poor health and safety practices; and the restoration of the reverse onus of proof in proceedings against WHS laws. We explore each of these keys matters in more detail below

Regulator Functions

Much debate has ensued about how much emphasis the regulator should place on each of its various functions. The primary focus of such debate has been the balancing of the education function with the compliance and enforcement function so as to achieve the objects of the model WHS Act.

Following the 2014 South Australian review of the Work Health and Safety Act ('WHS Act') 2012 (SA) and the 2017 Queensland review, two different approaches to the regulator functions were adopted.

In South Australia, a model was introduced whereby the regulator functions were clearly spilt with the education function being provided by officers who were not inspectors, allowing inspectors to focus on compliance and enforcement actions. Whereas in Queensland, it was recommended that the regulator should place more emphasis on 'hard compliance' over the provision of education. Given that Ms Boland is the former Executive Director of SafeWork SA and was responsible for the separation of the educational and compliance / enforcement arms of agency, there is arguably a greater prospect of the approach taken by South Australia being adopted.

Inspectors' Powers and Functions

Inspectors currently have powers to compel organisations and individuals to provided information and documents while at a workplace (for example; s.171) or when not at a workplace (for example; s.155). Both the New South Wales review and Queensland review of their respective WHS Acts made recommendations with respect to these powers and functions of inspectors.

The NSW recommended that the NSW WHS Act be amended to permit the recording of interviews by the regulator without consent, provided notice was given to the interviewee that the interview would be recorded.

The Queensland review suggested that practical issues were raised by the power of inspectors to compel the provision of information and documents while at a workplace (pursuant to s.171) and as such the Queensland WHS Act has been amended so that from 1 July 2018 an inspector can exercise the same power to compel the provision of information and documents while at a workplace and for 30 days after initially having entered the workplace. Thereby negating the current need to physically be at the workplace to exercise that power.

Inspectors have broad ranging powers and functions under the WHS Act and based on the reviews and recommendations that have been undertaken at the state level it is unlikely there will be any contraction of the inspectors powers, if anything, it is likely to be broadened in line with the amendments to the Queensland WHS Act.

Effectiveness of the Penalty Regime

One of the key policy intentions behind the model WHS laws was to align offences and penalties across jurisdictions for organisations and individuals who fail to meet their WHS obligations, the introduction of the three categories of penalties based on the degree of culpability, risk and harm was to give effect to that intention.

While, Queensland introducing the offence of industrial manslaughter into its Work Health and Safety Act, has been seen as a significant divergence in the alignment of offences and penalties, it should also be noted, that even prior to this amendment in Queensland, there has been little consistency in the way in which penalties were applied. Each jurisdiction has different sentencing legislation (e.g. Queensland has the Penalties and Sentences Act 1992) which the Courts must have regard to.

This was evident in Queensland, between approximately February 2014 and 5 May 2016. The Regulator was somewhat hamstrung in making submissions to the Court as to an appropriate penalty as a result of the High Court decision in Barbaro v R (2014) 253 CLR 58. With the amendment of section 15 of the Penalties and Sentences Act 1992 (Qld), which took effect on 5 May 2016, removing that hurdle, the Regulator has sought to establish that consistency with harmonised jurisdictions, as evidence in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56. The District Court of Queensland in that decision noted the harmonised legislation provides consistency in the nationally agreed quantum of penalties and accordingly the sentencing courts ought to "have regard to decisions in harmonised jurisdictions, which will result in "like cases [being] treated in a like manner". When increasing the penalty imposed on the Defendant by the Magistrate in the first instance, His Honour Dearden DCJ had regard to comparative cases from both Queensland and New South Wales.

This emphasis on obtaining a consistent awareness of the consequences of failing to comply with the harmonised health and safety legislation is further reinforced by the National Compliance and Enforcement Policy, published by Safe Work Australia, which is applicable to Regulators nationwide.

The different penalties and sentencing regimes across the States and Territories encompass a broad range of matters, not solely WHS proceedings. Therefore any recommendations going to the amendment of penalties and sentencing legislation has the potential for far reaching consequences into the criminal law.

In addition to the consistency of the penalties being imposed, specific and general deterrence are an essential feature of an effective penalty regime.

Currently, the model WHS Act does not contain an express prohibition of insurance contracts which cover the cost of WHS penalties and fines. That said, both the South Australian and Queensland reviews have previously included recommendations that the model WHS Act be amended to include provisions expressly prohibiting insurance of that type. The reason being, arguably, a significant penalty has limited effect in deterring offences against the model WHS Act where the 'full sting' of the penalty is not felt by the offender.

We have recently seen the Federal Court of Australia address a similar issue (regarding a breach of the Fair Work Act), by specifically prohibiting an employer (the CFMEU) from indemnifying its employees. That matter was appealed to the High Court, where it was held by the Court that, the Federal Court had the power to make an order for personal payment, though that power did not extend to the making of a non-indemnification order.

Based on the public policy considerations with respect to the inconsistent penalties imposed across the harmonised jurisdictions and the potential availability of insurance to cover penalties imposed by courts, recommendations may center around the introduction of a national sentencing guide and an express prohibition of insurance to cover WHS penalties.

Restoration of the Reverse Onus of Proof and Burden of Proof

Prior to the implementation of the model WHS laws, NSW and Queensland both had a reverse onus of proof for offences relating to the duties of care. Practically, that meant that in NSW and Queensland, in a prosecution, the defendant had to prove they had a defence, by doing all that was reasonably practicable in ensuring health and safety. That is to say, the defendant was 'guilty, until proven innocent'.

Proponents of the return to the reverse onus of proof suggest defendants are best placed to know what steps were taken in specific circumstances and therefore would be best placed to prove on the balance of probabilities, (that is to say they have proved that it was more likely than not) they did all that was reasonably practicable in ensuring health and safety. As it currently stands under the model WHS Act, the prosecution must prove each and every element of an offence beyond reasonable doubt. Imposing the criminal standard of proof, reflects the notion that duty of care offences are criminal offences and therefore it is appropriate that the burden of proof rest with the prosecutors.

It is suggested in the discussion paper material that nationally, over the last ten years there has been an overall decline in the number of legal proceedings with respect to WHS prosecutions. Although raw numbers might suggest there has been a decline in the number of legal proceedings, there is no analysis as to whether all prior legal proceedings would have been pursued, if the burden of proof, to the criminal standard, lay with the prosecution. The restoration of the reverse onus of proof may result in an increase of WHS prosecutions, though would likely result in a decline in the level of investigation into incidents, by Regulators, as there would be a strict breach that the defendant would need to establish a defence to.

Consultation has commenced and submissions called for, by 13 April 2018, please do no hesitate to contact Damian Hegarty or Sarah-Jayne Rayner to discuss the review or proposed submissions.

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
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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