Work Health and Safety Amendment Act 2023

The Work Health and Safety Amendment Act 2023 is an amending Act. It does not replace the existing federal WHS framework with a new standalone regime. Instead, it changes two existing Commonwealth laws: the Safe Work Australia Act 2008 and the Work Health and Safety Act 2011.

That matters because businesses should not read this Act in isolation. The practical legal position sits in the principal Acts as amended. If you are updating policies, training materials, insurance arrangements or incident response procedures, the safest approach is to check the current consolidated legislation rather than relying on older templates or summaries.

The amendments cover several different topics. They include new information-gathering powers for the CEO of Safe Work Australia, changes to the wording of the Category 1 offence in the federal WHS Act, changes to health and safety representative provisions, expanded post-entry powers for inspectors, revised prosecution request rules, broader express pathways for regulator information use and sharing, and a new prohibition on insurance or indemnity for monetary penalties under the WHS Act.

For many businesses, the most important point is that these changes affect how compliance and enforcement can unfold in practice. A workplace visit may now lead to formal follow-up notices after the inspector has left. Insurance wording that once looked broad and protective may now need careful review. Officer oversight and recordkeeping become even more important where serious incidents are involved.

This Act matters most to businesses and organisations that are subject to the Commonwealth Work Health and Safety Act 2011. It does not automatically apply to all businesses nationally. Australia has overlapping federal, State and Territory WHS systems, and coverage depends on the legal setting of the work and the entity involved.

In practical terms, this page is most relevant if your business already works within the federal WHS framework, deals with the Commonwealth regulator, or operates across multiple jurisdictions and needs to understand how the federal position has changed. It is also relevant to officers, directors, company secretaries, in-house counsel, HR leaders, operations managers, safety managers and anyone responsible for responding to incidents or regulator notices.

If your business only operates under a State or Territory WHS law, this Act may still be useful background, especially for national businesses, but it should not be treated as a complete statement of your obligations. The Act itself also updates the definition of corresponding WHS law to refer to the Work Health and Safety Act 2020 of Western Australia, which is relevant to cross-jurisdictional reading of the federal legislation.

Before relying on this page, businesses should confirm three things. First, whether the Commonwealth WHS Act applies to the relevant workplace or activity. Second, whether there have been later amendments to the principal Acts or regulations. Third, whether a State or Territory law also affects the issue in question, especially for national operators using one set of policies across different sites.

The Act changes several trigger points that matter in day-to-day compliance and investigations.

First, the Category 1 offence wording in section 31 of the Work Health and Safety Act 2011 is amended. The heading now refers to negligence or reckless conduct. Paragraph 31(1)(c) is also replaced so that the conduct element refers to a person who engages in the conduct with negligence, or is reckless as to the risk to an individual of death or serious injury or illness. Businesses should not dismiss this as a cosmetic drafting change. It affects how the most serious offence category is framed in the federal Act.

Second, inspector powers are expanded after workplace entry. Section 171 is amended so that the existing power in subsection 171(1) is expressly tied to the period while the inspector is at the workplace. New subsection 171(2A) then allows an inspector, or another inspector, within 30 days after entry to give a written notice requiring specified documents, written answers to specified questions, or attendance to answer questions either in person or by audiovisual or audio link.

Third, the Act changes prosecution request rules in section 231. A person may make a written request to the regulator that a prosecution be brought if the person reasonably considers that an act, matter or thing constitutes a Category 1 or Category 2 offence, or reasonably considers from a coronial report or coronial proceedings that such an offence has been committed, and no prosecution has been brought. The Act also sets time windows for making that request.

Fourth, the regulator gains additional express ways to use and share information and documents under new section 271A. The provision allows disclosure, access or use in stated circumstances, including where necessary for administering or enforcing the Act, another prescribed Act, another Act or law where necessary to lessen or prevent a serious risk to public health or safety, or for corresponding WHS law purposes.

Fifth, the Act introduces a direct prohibition on insurance or indemnity for monetary penalties under the federal WHS Act. This is one of the clearest business-facing changes because it affects policy wording, indemnity deeds and officer protection arrangements.

The amendments to sections 171, 172 and 173 are especially important for businesses because they change the practical life cycle of an inspection. Before these changes, many businesses would focus heavily on what happened while the inspector was physically on site. The amended Act makes it clear that the process can continue formally after the visit.

Under new subsection 171(2A), within 30 days after an inspector enters a workplace under the relevant division, the inspector or another inspector may give a written notice to a person requiring one of three things. The notice may require production of a specified document if the person has custody of, or access to, it. It may require written answers to specified questions. Or it may require the person to attend before the inspector at a specified time and place, or by audiovisual or audio link, and answer questions.

There are limits in the legislation. A requirement under subsection 171(2A) may only relate to a document or question relevant to the purpose for which the workplace was entered. The notice may be served in any way that a notice may be issued or given under section 209. Section 173 also sets content requirements for a written notice under section 171(2A). The notice must state that it is given under section 171(2A), state the purpose of the workplace entry, warn that it is an offence to refuse or fail to comply without reasonable excuse, contain a statement about the effect of sections 172 and 269, and if attendance is required, state that the person may attend with a legal practitioner or other representative.

The Act also deals with attendance format. If a person is required to attend in person, the person may ask to attend by audiovisual or audio link instead, and the inspector must agree if that would be reasonable in the circumstances. The reverse also applies. If the notice requires attendance by audiovisual or audio link, the person may ask to attend in person instead, and the inspector must agree if that would be reasonable.

For businesses, the practical consequence is straightforward. A site visit should trigger a follow-up process, not just an on-the-day response. Businesses should preserve documents, identify who controls them, centralise communications, and make sure managers do not give inconsistent informal explanations that later conflict with formal written answers.

New section 272A is one of the most direct compliance changes for businesses. It says that a person must not, without reasonable excuse, enter into a contract of insurance or other arrangement under which the person, or another person, is purportedly covered for all or part of a liability for a monetary penalty under the Work Health and Safety Act 2011. It also prohibits providing insurance or a grant of indemnity for all or part of that liability, and taking the benefit of such a contract, arrangement or indemnity.

The section states the penalties. For an individual, the penalty is $50,000. For a body corporate, the penalty is $250,000. The section also says that the accused bears an evidential burden to show a reasonable excuse. In addition, subsection 272A(3) provides that a term of a contract of insurance or other arrangement is void to the extent it purports to cover a person for all or part of a liability for a monetary penalty under the Act.

Section 272B then creates a separate officer offence. A person commits an offence if a body corporate contravenes section 272A, the person is an officer of the body corporate, and the person is involved in the body corporate's contravention. The stated penalty is $50,000.

For businesses, this means insurance renewals and indemnity arrangements should be reviewed carefully. Do not assume that broad wording in management liability, D&O or statutory liability cover can remain untouched if it purports to respond to monetary penalties under the federal WHS Act. The legislation text used here is specifically about liability for a monetary penalty under the Act, so businesses should be careful not to overread this page into topics the Act text does not expressly address.

It is also important to review side letters, board-approved indemnity arrangements, deed polls, employment contracts and any broker instructions that describe the intended scope of cover. A problematic clause may not only be unenforceable to the relevant extent. Entering into, providing or taking the benefit of the arrangement may itself raise compliance issues under the Act.

The Act also makes targeted but important changes outside the inspection and insurance areas.

For health and safety representatives, paragraph 72(1)(c) is replaced so that the relevant person is chosen by the health and safety representative. Subsection 72(5) is also amended to refer to agreement about a matter mentioned in subsection (2). These are narrower amendments, but they still matter because consultation processes often become important after incidents, during disputes about safety measures, or when businesses are checking whether their internal procedures still match the law.

Section 231 is amended to update the process for requesting that a prosecution be brought. A person may make a written request to the regulator if the person reasonably considers that an act, matter or thing constitutes a Category 1 or Category 2 offence, or reasonably considers from a coronial report or coronial proceedings that such an offence has been committed, and no prosecution has been brought. The request can only be made within the time windows set out in subsection 231(1B). If the regulator advises that the investigation is not complete, the regulator must give written updates at least every 3 months until the investigation is complete, and then give written notice stating whether a prosecution will be brought and, if not, why not.

New section 271A gives the regulator additional express ways to disclose, give access to, or use information and documents. The stated circumstances include where the regulator reasonably believes the disclosure, access or use is necessary for administering or enforcing the Act, another prescribed Act, another Act or law where necessary to lessen or prevent a serious risk to public health or safety, or for corresponding WHS law purposes such as recognition of authorisations or exercise of powers or functions under a corresponding WHS law.

For businesses, the practical reading is that information given to a regulator may have broader compliance significance than a single site visit or single issue. Accuracy, consistency and document control matter. If a serious incident has occurred, businesses should keep a careful chronology of what was reported, to whom, and on what basis.

The Act received Royal Assent on 21 March 2023. Under section 2, the whole Act commences on a single day to be fixed by Proclamation, but if the provisions do not commence within 6 months beginning on the day of Royal Assent, they commence on the day after the end of that 6-month period. The legislation record shows 21 September 2023 in the commencement table.

For practical business use, the key point is timing. Businesses should apply the amendments from commencement and should not assume they change the legal position for conduct before commencement. If an incident, inspection or insurance arrangement spans different periods, the applicable version of the law may matter.

Because this is an amending Act, businesses should also check the current consolidated principal legislation and any later amendments before relying on a summary page. That is especially important for national operators, businesses with older compliance manuals, and anyone dealing with a live investigation or insurance renewal.

A sensible final check is to ask four questions. Are we in the Commonwealth WHS system? Have our incident response and document control processes been updated for post-entry notices? Have we reviewed insurance and indemnity wording for monetary penalty issues? Are our consultation and HSR procedures aligned with the current law? If the answer to any of those is no, this Act is a prompt to fix the gap.