Australia: Report On National Harmonisation Of OHS Laws Released

In our July issue we reported on the appointment by the Workplace Relations Ministers' Council of an advisory panel tasked with the job of preparing two reports on the optimal content of a model OHS Act for adoption throughout Australia. The panel's first report has now been released.


The report contains 75 recommendations relating to the following issues:

  • the primary duty of care to be enshrined within the model OHS Act
  • the standard of conduct required to comply with the duty and the standard of proof that applies to prosecutions for breach
  • additional duties to be imposed on specific persons
  • the obligations of company directors and officers
  • the manner in which OHS offences should be prosecuted
  • sentences for breach.

There are a range of important issues that will be dealt with in the second and final report of the panel, which is due on 30 January 2009. The issues to be dealt with in the final report include:

  • consultation arrangements
  • regulation making powers and administrative processes
  • permits and licensing.

Primary Duty of Care

The review panel has recommended that a broad statutory duty of care be included in the model OHS Act. The duty should apply to persons who conduct a business or undertaking and should cover workers (broadly defined) and others who may be put at risk to their health and safety by the conduct of the business.

The proposed new duty of care is not limited to the existence of an employment relationship, nor is the proposed duty to have any geographical restrictions such that it only applies at a workplace. The panel has recommended that the primary duty of care should apply to any work activity, and to work consequences (wherever they may occur), which result from the conduct of the business. The report gives an example of a situation where goods may be inadequately restrained and may fall from a truck on an open highway. While the highway cannot be considered to be the workplace of the person responsible for restraining the load, under the proposed new duty of care the consequences which flow from the load falling onto the open highway could be considered in determining whether that person breached their obligations.

In making the recommendations, the panel was concerned to ensure that the model OHS legislation provides for:

  • as broad a coverage as possible, to ensure that the duties of care deal with emerging and future hazards and risks, as well as changes to work and work arrangements
  • clarity of expression, to ensure certainty in the identification of the duty holders and so that duty holders can understand the obligations placed upon them
  • the interpretation and application of the duties of care consistent with the protection of health and safety.

These objectives are achieved in part by the recommendation of the panel to include a broad definition of the term "worker" as it applies for the purpose of the primary duty of care. The expanded definition extends the duty beyond the traditional employment relationship to include any person who works, in any capacity, in or as part of the business or undertaking. This expanded definition is likely to capture a wide category of persons including labour hire personnel, volunteers and contractors' employees.

Similarly, the panel has recommended that the duty apply to any person conducting a business or undertaking, whether as an employer, a self-employed person, the Crown in any capacity or a person in any other capacity and whether or not the business or undertaking is conducted for gain or reward.

Scope and Issues of Proof

The panel has recommended that the primary duty of care under the model OHS legislation should be subject to a qualifier of "reasonable practicability". This qualifier is to be placed within the duty (as is presently the case in Victoria, Western Australia, the Australian Capital Territory and the Northern Territory) rather than in a separate defence provision (New South Wales and Queensland).

The primary duty of care will, therefore, require the person conducting the business to ensure, to the degree reasonably practicable, the health and safety of workers and others who may be put at risk by the conduct of the business.

The panel has recommended that a definition of the expression "reasonably practicable" be included in the model legislation. The panel has proposed a definition which covers the following considerations:

  • the likelihood of the hazard or risk eventuating
  • the degree of harm that may result if the hazard or risk eventuated
  • what the duty holder knows, or a person in their position ought reasonably to know, about:
  • the hazard, the potential harm and the risk
  • ways of eliminating or reducing the hazard, the harm or the risk
  • the availability and suitability of ways to eliminate or reduce the hazard, the harm or the risk, and
  • the costs associated with the available ways of eliminating or reducing the hazard, the harm or the risk, including whether the cost is grossly disproportionate to the degree of harm and the risk.

The panel has also recommended that the concept of control should not play a part in determining the nature or extent of a party's exposure to the primary duty of care. The panel is of the opinion that the existence of the qualifier "reasonably practicable" will supply an appropriate filter enabling cases of no or minimal control to be appropriately dealt with. Under the present OHS laws certain obligations, most notably the obligation imposed on persons who control non-domestic premises used as a place of work, are regulated by notions of control. In New South Wales, at least, this has led to the development of a fairly involved jurisprudence.

Finally, the panel considers that in any action for breach of the duty of care, the prosecution must be required to prove all elements beyond reasonable doubt – including that the defendant had failed to take steps that were "reasonably practicable". There are to be no statutory defences to a prosecution for breach of the duty of care – principally because the concept of "reasonably practicable", which is the cornerstone of the current statutory defence in New South Wales, would now form part of the duty of care itself.

Other Duties

A number of important recommendations are made by the panel which will affect personal liability under the model Act. As outlined above, the primary duty of care will not be placed upon the 'employer' but on a 'person', which includes natural persons. It was acknowledged that this change potentially exposes individuals to the primary duty and the associated higher penalties stemming from a breach of that primary duty. However, the report clarifies that the primary duty is not intended to apply to "individual functionaries within an organisation" such as middle managers or supervisors with practical day-to-day control of the workplace, but to persons who are actually conducting or operating the business (such as the business owner). "Natural persons employed or engaged to undertake activities in the business or undertaking of another will be workers ... or officers and will owe duties of care as such".

In addition to the primary duty, the panel has recommended that certain specific duties should apply to particular classes of persons, including:

  • persons with management or control of workplace areas
  • manufacturers/designers/suppliers/importers of plant substances and structures
  • workers
  • other persons present at the workplace
  • OHS service providers.

Duties of persons with management or control

Currently, there are material differences between the jurisdictions on this issue.

In Victoria, the obligation is placed on a person who has management or control of a workplace to any extent (including the owner of such workplace) to ensure that the workplace, and the means of entry and exit, are safe so far as is reasonably practicable. However, in Queensland the obligation extends to a person who has control of fittings, fixtures and plant in a workplace area.

The report recommends that the model Act include a "specific duty of care owed by a person with management or control of the workplace, fixtures, fittings or plant within it to ensure that the workplace, the means of entering and exiting the workplace, and any fixtures, fittings and plant within the workplace are safe without risks to health and safety".

The discussion in relation to this duty centred around the alleged inconsistent case law on the definition of 'control' which is due, in part, to the "many uses to which 'control' is put in current OHS legislation". Therefore, the report recommends that the term 'control' be defined (and the Queensland Act is referred to as an example) and used only in relation to this duty. The definition of 'management and control' will be discussed further in the second report due in January 2009.

Designers/Manufacturers/Importers/Suppliers of Plant Structures or Substances

The intention here is to establish a duty of care to ensure that the health and safety of those contributing to the use of, using, otherwise dealing with or affected by the use, of plant, structures or substances is not put at risk. The duties of care will apply in relation to any reasonably foreseeable activity undertaken for the purpose for which the plant structure or substance was intended to be used. The duties of care are owed to those persons using or otherwise dealing with or his health or safety may be affected by, the use of the plant substance or structure. The specific duties of care should incorporate broad requirements for:

  • hazard identification, risk assessment and risk control
  • appropriate testing and examination to identify any hazards or risks
  • the provision of information to the person to whom the plant, structure or substance is provided about the hazards, risks and risk control measures
  • the ongoing provision of any additional information as it becomes available.

Duty of employees

Most Australian OHS Acts impose a duty on employees or workers (as defined in each Act) to take care of their own safety and that of persons around them.

The panel has concluded that the model Act should include a duty to be imposed upon 'workers' to take reasonable care for their own health and safety, that their acts and omissions do not adversely affect the health or safety of others and to cooperate with any reasonable action taken by the person conducting the business or undertaking in complying with the model Act. The definition of worker is to be broad enough to cover any persons who carry out work activities as part of a business or undertaking.

Duty of 'other persons at the workplace'

Recommendations 48 and 49 provide that the model Act should include a limited duty of care placed upon 'other persons at the workplace' to take reasonable care for their own safety and that of others who may be affected by their conduct or omissions at the workplace. While this would impose duties on persons such as visitors and the public, the authors stated that the duty of care "would be proportionate to any control such a person is able to exercise, recognising that such duties are complementary to the overall duty of the person conducting the undertaking".

OHS Service Providers

The report recommends that any person providing OHS advice, services or products that are relied upon by other duty holders should also be under a duty to ensure that no person at work is exposed to a risk to their health or safety from the provision of the services.

Directors and Company Officers

Under other current OHS laws, directors and company officers may be found liable for a breach of duty.

Some jurisdictions, such as Victoria, incorporate the definition of 'officer' found in section 9 Corporations Act 2000 (Commonwealth) while others define the term so as to include executive officers, directors and "persons concerned in management of the corporation or making decisions that affect the whole or a substantial part of the corporation". The definition of 'officer' will be dealt with in the second report of the panel.

The form of the 'officer's' duty also differs between jurisdictions. Several OHS Acts provide that company officers are automatically liable for company breaches unless the officer proves a defence of due diligence or lack of influence. In New South Wales, for example, the director or officer or person involved in the management of a contravening corporation is deemed to be guilty of the same contravention. It is then for the director/officer to establish the statutory defence.

In Victoria, however, an officer is guilty of a breach of the Act if an offence committed by the corporation was attributable to the officer's failure to exercise reasonable care.

Of the three options proposed in relation to the form of the 'officer' liability provisions, the report recommends that it be a positive duty to ensure a corporation complies with its duties under the model Act. The duty is to be qualified by the requirement that an officer exercise due diligence in discharging his or her responsibilities within the organisation. The onus of proving the elements of the offence would rest on the prosecution.

The authors of the report believe that this creates a positive duty on an officer to ensure that the corporation complies with its duties rather than "accountability only applying after a contravention by the company". The concept of 'due diligence' was chosen because it is well understood by directors and officers and is of a "more stringent" standard than that applied to workers. The report notes that if its primary recommendation for a positive duty to be applied to officers is not accepted, then provisions based on sections 144 and 145 of the Victorian OHS Act 2004 should be adopted in the model Act.


Prosecutions for breach of any of the duties in the model Act should be commenced within 2 years of the offence or within 1 year of a finding in a coronial or other official proceedings.

Rules against duplicity and double jeopardy are also to apply. This would mean an end to the current system in NSW where appeals from an acquittal are available.

Findings of guilt should be the subject of appeal to the Supreme Court of the relevant State and, ultimately, to the High Court.

Sentencing - Primary duty

The panel recognised that there currently exists a great deal of inconsistency between the penalties applicable in each State for a breach of the primary duties of care. The highest maximum penalty for a corporation for breach of a general duty of care is $1,020,780 in Victoria, whilst the lowest is $100,000 in the ACT.

There is even more variation when the breach involves an aggravating factor in which case NSW has the highest penalty for a corporation, $1,650,000, and Tasmania has the lowest, $150,000.

The panel believes that fines are a key part of achieving deterrence in the area of OHS law particularly because of the graduated enforcement approach that is used. Consequently the panel has recommended higher maximum fines as well as a wider range of sentencing options.

The panel determined that it was not preferable to simply take the highest maximum penalty for an offence in any one of the Australian jurisdictions and make that the maximum penalty across all jurisdictions. It was felt that this approach assumed that the existing maximum penalties were sufficient and that this would not complement the graduated system of sanctions that is being suggested under the model Act.

Consequently, the panel has recommended a new penalty regime that centres around whether an offence is a Category 1, Category 2 or Category 3 offence. For Category 1 offences, which the panel indicates are likely to be rare, the maximum penalty will be $3,000,000, which is almost double the current maximum in NSW for an aggravated breach of a primary duty. The table below sets out the maximum penalties proposed under the model act.

Type of Offence Maximum Fine for Corporation Maximum Fine for Individual
Category 1
(involves serious harm, or risk of it, and recklessness or gross negligence)
$3,000,000 $600,000 and/or up to 5 years imprisonment
Category 2
(involves serious harm, or risk of it)
$1,500,000 $300,000
Category 3 $500,000 $100,000

The panel stated that there needs to be a significant custodial sentence available for Category 1 offending by an individual. As such this sentence will only be available where there was a breach of duty of care involving serious harm or the risk of serious harm and where the offender was reckless or grossly negligent.

The panel did not consider it advisable to reserve the highest maximum penalties for repeat offenders as it felt that this would inappropriately restrict the court in the penalties that they must impose. On some occasions a first offence may be of such a nature that it warrants the maximum penalty range and similarly, a second offence may be such that it is unrelated to earlier offending and should not be subject to a higher penalty range.

Sentencing – other duties

The table below sets out the maximum penalties proposed under the model act for the other duties.

Type of Offence Maximum Fine for Individual
Category 1 – Breach of Officer's Duty
(involves serious harm, or risk of it, and recklessness or gross negligence)
Category 1 – Breach of Worker/Other's Duty
(involves serious harm, or risk of it, and recklessness or gross negligence)
Category 2 – Breach of Officer's Duty
(involves serious harm, or risk of it)
Category 2 – Breach of Worker/Other's Duty
(involves serious harm, or risk of it)
Category 3 – Breach of Officer's Duty $100,000
Category 3 – Breach of Worker/Other's Duty $50,000

The panel also recommended that there be a range of other sentencing options for Courts to use in conjunction with their power to impose fines on offenders.

There is evidence that a range of sentencing measures used simultaneously can have the most effective deterrent affect.

In particular the panel recommended that the following sentencing options should be provided for in the model act in addition to fines and custodial sentences:

  • Adverse publicity orders;
  • Remedial orders;
  • Corporate probation;
  • Community service orders;
  • Injunctions;
  • Training orders;
  • Compensation orders; and
  • Enforceable undertakings (to be discussed in detail in Second Report in January 2009).

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.

Nicki Milionis
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”

Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.