The NSW Government has recently introduced the Work Health and Safety Amendment (Review) Bill 2019 which, if passed, will address a number of the recommendations of Justice Boland as part of her national review of harmonised WHS law.

The key proposed reforms include:

• Insurance against WHS fines will be prohibited. This will cover entering into, providing or benefitting from insurance or indemnity arrangements in relation to the payment of penalties for statutory WHS offences, and makes officers of a body corporate liable for the offence;
• The bar for the most serious WHS offences will be lowered, with "gross negligence" to be added as a fault element to the category offence (which currently requires the higher bar of recklessness);
• Maximum penalties will increase significantly, through the adoption of a penalty unit system - the maximum fine for a category 1 breach will instantly increase from $3 million to $3,463,000 and from $600,000 to $692,500 for an officer (or individual who is a PCBU).  This will be the first increase in the maximum penalties of WHS law in NSW since the law was harmonised from 1 January 2012; and
• The possibility of work-related manslaughter prosecutions will be made expressly clear in the Crimes Act 1900 (NSW), attracting a maximum penalty of 25 years' imprisonment.

With any reform of the model harmonised WHS law not anticipated for some time (possibly well into 2020), the State Better Regulation and Innovation Minister Kevin Anderson has stated that "I am of the view that NSW cannot afford to wait until a decision is made to amend the model Act to address these issues".

Given the nature of the proposed reforms, they seem to be targeted at providing greater deterrence for WHS breaches and highlight the need for PCBUs, officers and other duty holders to have effective systems in place to manage their WHS duties.

If you would like to discuss anything we have discussed in this update please don't hesitate to contact Harriet Eager.