National Model WHS Laws Amended – WHS recklessness fines tripled, jail terms doubled
The national model WHS laws have been amended to significantly increase the maximum available fines and jail times, and to clarify the operation of the category-1 offence in a way that is likely to give regulators and prosecutors more confidence to pursue company officers for recklessness or gross negligence.
The Model Work Health and Safety Legislation Amendment (Offences and Penalties) 2023 more than triples the maximum fines for breaches under section 31 (“Gross negligence or reckless conduct–Category 1”) of the model WHS Act
- From $3 million to $10,425,000 for bodies corporate.
- From $600,000 to $2,085,000 for company officers.
- From $300,000 to $1,042,000 for other individuals.
The maximum term of imprisonment for reckless or grossly negligent individuals has been doubled from five (5) to ten (10) years.
Changes in more penalties
All other penalties under the model WHS Act, and Regulations, have been subjected to lower but still significant increases of 39.03 per cent (before being rounded up or down), which matches the average increase in penalty units across other laws since 2011, when the model WHS regime was introduced.
Further, the WHS penalties will be varied to reflect any movement in the national consumer price index (CPI), meaning they’re likely to be increased annually.
Adopting the CPI system enacts the recommendation aimed at ensuring WHS penalties “remain effective and appropriate” from Marie Boland’s 2018-19 independent review of the model WHS laws.
The bigger jump in fines and jail terms for category-1 offences
The bigger jump in fines and jail terms for category-1 offences was agreed to by Australia’s WHS ministers earlier this year.
The ministers also agreed to add a jurisdictional note and model penalty for industrial manslaughter to the model WHS Act, and these are included in the new Offences and Penalties Amendment.
The new industrial manslaughter provision in the model Act, section 30A, does not create the offence of manslaughter, but enables the harmonised jurisdictions to create the offence (or retain their existing industrial manslaughter offences) while advising them to adopt maximum penalties of $18 million for bodies corporate, and 20 years’ jail for individuals.
Among other changes, the Offences and Penalties Amendment replaces section 244 (“Imputing conduct to bodies corporate”) with a string of comprehensive clauses clarifying when the conduct of any employee, officer or agent of a body corporate is deemed to have been taken by the body corporate.
It also clarifies that PCBUs that fail to tackle psychosocial risks through the risk management clauses of the WHS Regulations are breaching their primary duty of care under the Act.
All the Model Work Health and Safety Legislation Amendments (Offences and Penalties) 2023 will need to be adopted into the each Harmonised State & Territories WHS Legislation.
Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at https://www.safeworkaustralia.gov.au/