Australia: OHS – Call It Harmonisation Or Nationalisation But Either Way A Change Is In The Air

Last Updated: 16 November 2009
Article by Stephanie Nicol

What's News? 

The Federal Government continues to push for the implementation of occupational health and safety law reforms.  In particular, it seeks to harmonise occupational health and safety laws by introducing a single, national system to replace the many largely State and Territory based systems that currently operate. 

The latest step involves the release of an exposure draft of a model national occupational health and safety Act, currently called the Safe Work Act 2009.  Draft model Regulations have also been released, with further sets of regulations to be developed and released over the next few months.  The model laws follow two reports arising from a 'National OHS Review' and to a large extent adopt the recommendations made by the National OHS Review Panel.  Please click here to access the model laws, which you have until 9 November 2009 to provide comment on by way of written submissions. 

The Federal Government's aim is for all States, Territories and the Commonwealth to agree to adopt the model laws so that they may commence operation on 1 January 2012. 

In this update, we provide a high level overview of some of the key issues flowing from the model laws. 

Key Issues

Who's Responsible?

The model laws take the focus off traditional employment and contractor relationships and instead place responsibility for occupational health and safety on a number of parties.  The primary safety duty rests with persons who conduct a business or undertaking (whether alone or with others, and whether or not that business or undertaking is conducted for a profit) so it is anticipated that this will cover a broader range of persons and entities than most current laws.  It is proposed that persons conducting a business or undertaking should have obligations to:

  • protect the health and safety of their 'workers' while they are engaged at work in the business or undertaking (including those engaged by it, caused to be engaged by it and those whose activities in carrying out work are influenced by it).  Importantly, 'workers' is broadly defined and catches contractors and volunteers
  • not put at risk the health and safety of others arising from work carried out as part of the conduct of the business or undertaking.

Some of the other parties with proposed safety duties under the model laws include persons with management or control of a workplace, or of fixtures, fittings or plant at a workplace, designers, manufacturers, importers and suppliers of plant, substances or structures for use at a workplace, self-employed persons, workers themselves (in a broader way than, for example, in the current New South Wales provisions) and other persons at places of work.

The model Act makes it clear that those with safety duties cannot delegate them, which reflects the current position in most if not all jurisdictions.  This means, for example, that a duty holder cannot effectively assign its obligations with respect to safety to another. 

The model Act also acknowledges that a person can have more than one duty and that two or more persons may concurrently have a duty.

Risk Management Approach

The principle of risk management permeates the model laws.  The idea is that health and safety should be ensured by eliminating hazards and risks to health 'so far as is reasonably practicable' and, where that is not possible, to minimise those hazards and risks.

As a consequence, a number (but not all) of the safety duties contained in the model laws only require the protection of health and safety 'so far as is reasonably practicable'.  This will be a welcome change for employers in some States (e.g. New South Wales and Queensland) where the requirement to protect health and safety is currently absolute, unqualified and subject only to limited defences.  It may also have the effect of limiting the number of prosecutions commenced in those States, because the responsibility will rest with the prosecutor (which cannot be the union) to show that the duty holder failed to do everything reasonably practicable to ensure health and safety.

What About The Liability Of Directors And Managers?

In some States, directors and certain managers are currently deemed to have committed an offence if the entity in which they hold the office of director or the position of manager contravenes occupational health and safety laws.  This is proposed to change.  Instead, the model Act will place a duty on 'officers' to exercise due diligence to ensure that the entity in which they hold office meets its safety obligations. 

Importantly, the term 'officer' is broadly defined and includes not only directors, but also persons who make, or participate in making, decisions that affect at least a substantial part of the entity's business or undertaking, persons who have the capacity to significantly affect the entity's financial standing, receivers and managers of any property of the entity and liquidators of the entity.


The model Act attempts to streamline penalties by grouping offences into 3 distinct categories and assigning a maximum penalty to each category of offence.  These penalties significantly increase those currently applicable in most if not all jurisdictions.

A category 1 offence is the most serious, involving recklessness, and death or serious illness or injury, or a high risk of the same.  A category 2 offence is essentially the same as a category 1 offence, but without any recklessness.  The least serious offence is a category 3 offence, which involves a breach of a duty, implicitly, without a high risk of serious illness and injury and without recklessness. 

The proposed maximum penalties are considerable, being between:

  • $500,000 (for a category 3 offence) and $3,000,000 (for a category 1 offence) for corporations
  • $100,000 (for a category 3 offence) and $600,000 and/or up to 5 years' imprisonment (for a category 1 offence) for officers
  • $50,000 (for a category 3 offence) and $300,000 and/or up to 5 years' imprisonment (for a category 1 offence) for workers and other persons.

Given the increase in penalties, it was considered that higher penalties for repeat offenders were not warranted.


The obligation to notify the relevant authority rests with the person who conducts the business or undertaking and extends only to 'notifiable incidents''Notifiable incidents' are essentially 'dangerous incidents' (e.g. arising from falls from heights, explosions, fire, structural collapse etc.) and incidents which involve death or 'serious illness or injury' (e.g. illness or injury requiring in-patient hospital treatment or immediate medical treatment in prescribed circumstances).

Where a 'notifiable incident' occurs, the person with the management or control of the workplace must preserve the incident site until an inspector arrives (or directs otherwise).  However, interference with the site is permitted, for example, in the interests of preserving safety or to remove an injured or deceased person.

Consultation And Representation

As you would expect, the model laws continue to require consultation and representation.

Next Steps

The model Act and Regulations are open for public comment until 9 November 2009, after which time Safe Work Australia will consider all submissions and amend the model Act and Regulations as required.

If you would like to know more about how the model laws will impact your business, or you are considering making submissions about them to Safe Work Australia, please let us know.  The Gadens Lawyers Workplace Relations team is experienced in dealing with all matters relating to workplace safety and is more than happy to assist you. 

Stephanie Nicol

t (02) 9931 4855


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”

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.