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New South Wales
Work Health and Safety Amendment Bill 2023
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10 3
Schedule 2 Amendment of Work Health and Safety Regulation 2017 13
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2023
New South Wales
Work Health and Safety Amendment Bill 2023
Act No , 2023
An Act to amend the Work Health and Safety Act 2011 to incorporate amendments to the national
Model Work Health and Safety Act relating to penalty amounts, prohibited asbestos notices, the
powers and responsibilities of inspectors and the liability of corporations for the actions of
officers, employees and agents; to make provision for a register of workers exposed to silica dust;
and for related purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Work Health and Safety Amendment Bill 2023 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Work Health and Safety Amendment Act 2023.
2 Commencement
This Act commences as follows--
(a) Schedule 1[2], [18]-[20], [22], [24]-[27] and Schedule 2[1] and [6]--on the
day that is 6 months after the date of assent to this Act,
(b) Schedule 1[4]-[15], [17], [28], [32] and [37] and Schedule 2[2]-[4]--on 1
July 2024,
(c) otherwise--on the date of assent to this Act.
Page 2
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
Schedule 1 Amendment of Work Health and Safety Act 2011
No 10
[1] Section 4 Definitions
Insert in alphabetical order--
authorised person, in Part 13, Division 4--see section 244.
board of directors, in Part 13, Division 4--see section 244.
[2] Section 4
Insert in alphabetical order--
asbestos, in Part 10, Division 2A--see section 197A.
asbestos containing material (ACM), in Part 10, Division 2A--see section
197A.
prohibited asbestos, in Part 10, Division 2A--see section 197A.
relevant person, in Part 10, Division 2A--see section 197A.
[3] Section 31 Gross negligence or reckless conduct--Category 1
Omit section 31(1)(b). Insert instead--
(b) the person, without reasonable excuse, engages in conduct that--
(i) exposes an individual, to whom the duty is owed, to a risk of
death or serious injury or illness, or
(ii) if the person is an officer of a person conducting a business or
undertaking--exposes an individual, to whom the person
conducting a business or undertaking owes a health and safety
duty, to a risk of death or serious injury or illness, and
[4] Section 31(1), penalty provision
Omit the penalty provision. Insert instead--
Maximum penalty--
(a) for an individual, as a person conducting a business or undertaking or
an officer of a person conducting a business or undertaking--18,805
penalty units or 10 years imprisonment, or both, or
(b) for an individual, otherwise--9,038 penalty units or 10 years
imprisonment, or both, or
(c) for a body corporate--90,424 penalty units.
[5] Section 32 Failure to comply with health and safety duty--Category 2
Omit the penalty provision. Insert instead--
Maximum penalty--
(a) for an individual, as a person conducting a business or undertaking or
an officer of a person conducting a business or undertaking--3,626
penalty units, or
(b) for an individual, otherwise--1,813 penalty units, or
(c) for a body corporate--18,128 penalty units.
[6] Section 33 Failure to comply with health and safety duty--Category 3
Omit the penalty provision. Insert instead--
Maximum penalty--
Page 3
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(a) for an individual, as a person conducting a business or undertaking or
an officer of a person conducting a business or undertaking--1,214
penalty units, or
(b) for an individual, otherwise--607 penalty units, or
(c) for a body corporate--6,070 penalty units.
[7] Sections 38(1), 39(1), 52(5), 56(2), 61(4), 70(1) and (2), 71(2), 72(7), 79(1), (3) and (4),
155(5), 165(2), 171(6), 177(2) and (6), 185(4), 188, 189, 268(1) and (2) and 271(2) and (4)
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--121 penalty units, or
(b) for a body corporate--607 penalty units.
[8] Sections 38(7), 75(1), 97, 210 and 273
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--61 penalty units, or
(b) for a body corporate--304 penalty units.
[9] Sections 41, 99(2), 193, 200(1), 219 and 242(1)
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--607 penalty units, or
(b) for a body corporate--3,036 penalty units.
[10] Sections 42-46 and 47(1)
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--243 penalty units, or
(b) for a body corporate--1,214 penalty units.
[11] Sections 53, 57 and 74(1)
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--25 penalty units, or
(b) for a body corporate--121 penalty units.
[12] Sections 104(1), 107, 108(1), 109(1) and 197
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--1,206 penalty units, or
(b) for a body corporate--6,028 penalty units.
[13] Sections 118(3), 124-126, 128, 129, 143, 144(1), 145, 146, 147(1) and 148
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
Page 4
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(a) for an individual--121 penalty units, or
(b) for a body corporate--607 penalty units.
[14] Section 123 Contravening WHS entry permit conditions
Omit the penalty provision. Insert instead--
Maximum penalty--243 penalty units.
[15] Section 150 Union to provide information to authorising authority
Omit the penalty provision. Insert instead--
Maximum penalty--
(a) for an individual--61 penalty units, or
(b) for a body corporate--304 penalty units.
[16] Section 162 Inspectors subject to regulator's directions
Insert after section 162(2)--
(3) If exercising a compliance power requires an inspector to have a reasonable
belief or reasonable suspicion as to a matter or to be satisfied of a thing, the
regulator must not direct the inspector to exercise the compliance power unless
the inspector has the belief or suspicion or is satisfied of the thing.
[17] Section 190 Offence to assault, threaten or intimidate inspector
Omit the penalty provision. Insert instead--
Maximum penalty--
(a) for an individual--607 penalty units or 2 years imprisonment, or both,
or
(b) for a body corporate--3,036 penalty units.
[18] Part 10, Division 2A
Insert after Division 2--
Division 2A Prohibited asbestos notices
197A Definitions
In this division--
asbestos means the asbestiform varieties of mineral silicates belonging to the
serpentine or amphibole groups of rock forming minerals, including the
following--
(a) actinolite asbestos,
(b) grunerite (or amosite) asbestos (brown),
(c) anthophyllite asbestos,
(d) chrysotile asbestos (white),
(e) crocidolite asbestos (blue),
(f) tremolite asbestos,
(g) a mixture that contains 1 or more of the minerals referred to in
paragraphs (a) to (f).
asbestos containing material (ACM) means any material or thing that, as part
of its design, contains asbestos.
Page 5
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
prohibited asbestos means asbestos or ACM, fixed or installed in a workplace
on or after 31 December 2003.
relevant person in relation to a workplace means--
(a) a person conducting a business or undertaking at the workplace, or
(b) a person with management or control of the workplace, or
(c) a person with management or control of fixtures, fittings or plant at the
workplace, or
(d) a person who the regulator reasonably believes is or was involved in, or
caused, whether directly or indirectly, the fixing or installing of
prohibited asbestos at the workplace.
197B Issue of prohibited asbestos notices
The regulator must issue a prohibited asbestos notice to a relevant person in
relation to a workplace if the regulator reasonably believes prohibited asbestos
is present in the workplace.
197C Contents of prohibited asbestos notices
(1) A prohibited asbestos notice must state--
(a) that the regulator believes prohibited asbestos is present in the
workplace and the basis of that belief, and
(b) details of the prohibited asbestos, including the location, type and
condition of the prohibited asbestos, and
(c) directions in relation to specific measures the relevant person to whom
the prohibited asbestos notice is issued is required to take in relation to
the prohibited asbestos, including in relation to the management and
removal of the prohibited asbestos, and
(d) the day by which the relevant person to whom the prohibited asbestos
notice is issued is required to comply with the prohibited asbestos
notice.
(2) The day stated for compliance with the prohibited asbestos notice must be
reasonable in all the circumstances.
(3) The regulations may prescribe factors that must be considered by the regulator
when determining specific measures the relevant person to whom a prohibited
asbestos notice is issued is required to take in relation to prohibited asbestos.
197D Compliance with prohibited asbestos notice
A relevant person to whom a prohibited asbestos notice is issued must comply
with the notice.
Maximum penalty--
(a) for an individual--1,206 penalty units, or
(b) for a body corporate--6,028 penalty units.
197E Extension of time for compliance with prohibited asbestos notices
(1) This section applies if a relevant person has been issued with a prohibited
asbestos notice.
(2) The regulator may, by written notice given to the relevant person, extend the
compliance period for the prohibited asbestos notice.
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Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(3) However, the regulator may extend the compliance period only if the period
has not ended.
(4) In this section--
compliance period means the period stated in the prohibited asbestos notice
under section 197C, and includes that period as extended under this section.
[19] Section 202 Application of Division
Omit "or non-disturbance notice".
Insert instead ", non-disturbance notice or prohibited asbestos notice".
[20] Sections 204 and 205(1)
Omit "or prohibition notice" wherever occurring.
Insert instead ", prohibition notice or prohibited asbestos notice".
[21] Section 204(b)
Insert "measures to take or" after "choice of".
[22] Section 206
Omit the section. Insert instead--
206 Changes to notice
(1) An inspector may--
(a) make minor changes to a notice issued by an inspector, or
(b) extend the compliance period for an improvement notice in accordance
with section 194.
(2) The regulator may--
(a) make minor changes to a prohibited asbestos notice issued by the
regulator, or
(b) extend the compliance period of a prohibited asbestos notice in
accordance with section 197E.
(3) In this section, minor changes means a minor change to a notice--
(a) for clarification, or
(b) to correct errors or references, or
(c) to reflect changes of address or other circumstances.
[23] Section 207
Omit the section. Insert instead--
207 Regulator may vary or cancel notice
(1) Except as provided in section 206, a notice issued by an inspector may only be
varied or cancelled by the regulator.
(2) A notice issued by the regulator may only be varied or cancelled by the
regulator.
[24] Sections 211, 212(1)(a) and 213(b)
Insert "or prohibited asbestos notice" after "prohibition notice" wherever occurring.
Page 7
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[25] Section 212(1)(b)
Omit the paragraph. Insert instead--
(b) a prohibition notice or prohibited asbestos notice cannot be issued
because, after taking reasonable steps--
(i) in relation to a prohibition notice--the person with management
or control of the workplace cannot be found, or
(ii) in relation to a prohibited asbestos notice--a relevant person in
relation to the workplace cannot be found.
[26] Section 214 Application of Division
Omit "or non-disturbance notice".
Insert instead ", non-disturbance notice or prohibited asbestos notice".
[27] Section 223 Which decisions are reviewable
Insert after item 9 of the table to section 223(1)--
9A Section 197B (issue of prohibited (1) The person to whom the notice was
asbestos notice) issued.
(2) The person with management or
control of the workplace.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are affected
by the decision.
(5) A health and safety representative who
represents a worker whose interests
are affected by the decision.
9B Section 197E (extension of time for (1) The person to whom the notice was
compliance with prohibited asbestos issued.
notice) (2) The person with management or
control of the workplace.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are affected
by the decision.
(5) A health and safety representative who
represents a worker whose interests
are affected by the decision.
[28] Section 229B Procedure for offences
Omit "650 penalty units" from section 229B(4). Insert instead "1,200 penalty units".
[29] Section 242A Definitions
Omit the definition of CPI. Insert instead--
CPI number means the All Groups Consumer Price Index number, that is, the
weighted average of the 8 Australian capital cities, published by the Australian
Statistician.
Page 8
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[30] Section 243 Penalty notices
Omit section 243(6). Insert instead--
(6) In this section--
authorised officer means the following--
(a) a member of staff of the regulator authorised in writing by the regulator
as an authorised officer for the purposes of this section,
(b) a person prescribed by the regulations.
[31] Sections 244-244D
Omit section 244. Insert instead--
244 Definitions
In this division--
authorised person, for a body corporate, means an officer, employee or agent
of the body corporate acting within the actual or apparent scope of the
officer's, employee's or agent's--
(a) employment, or
(b) authority.
board of directors means the body, whatever it is called, exercising the
executive authority of the body corporate.
244A Imputing conduct to body corporate
For this Act, conduct engaged in by the following on behalf of a body
corporate is conduct also engaged in by the body corporate--
(a) the body corporate's board of directors,
(b) 1 or more authorised persons,
(c) 1 or more persons acting at the direction of or with the express or
implied agreement or consent of--
(i) the body corporate's board of directors, or
(ii) an authorised person.
244B State of mind
(1) If it is necessary to establish a state of mind of a body corporate in relation to
the commission of an offence, it is sufficient to show--
(a) the body corporate's board of directors--
(i) intentionally, knowingly or recklessly engaged in the relevant
conduct, or
(ii) expressly, tacitly or impliedly authorised or permitted the
carrying out of the conduct, or
(b) an authorised person--
(i) intentionally, knowingly or recklessly engaged in the relevant
conduct, or
(ii) expressly, tacitly or impliedly authorised or permitted the
carrying out of the conduct, or
(c) a corporate culture existed within the body corporate that directed,
encouraged, tolerated or led to the carrying out of the conduct.
Page 9
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(2) Subsection (1)(b) and (c) do not apply if the body corporate proves it took
reasonable precautions to prevent--
(a) the conduct, or
(b) the authorisation or permission of the conduct.
(3) Factors relevant to the application of subsection (1)(c) include--
(a) whether authority or permission to carry out conduct of the same or a
similar character, had previously been given by a corporate officer, and
(b) whether the person who carried out the conduct believed on reasonable
grounds, or had a reasonable expectation, that a corporate officer would
have authorised or permitted the carrying out of the conduct.
(4) In this section--
corporate culture means 1 or more attitudes, policies, rules, courses of
conduct or practices existing within the body corporate generally or in the part
of the body corporate in which the relevant activity takes place.
corporate officer means an officer within the meaning of section 9 of the
Corporations Act 2001 of the Commonwealth other than a partner in a
partnership.
244C Mistake of fact
If mistake of fact is relevant to determining liability for an offence, a body
corporate may rely on mistake of fact only if--
(a) the employee, agent or officer of the body corporate who carried out the
conduct was under a mistaken but reasonable belief about facts that, had
they existed, would have meant the conduct would not have constituted
the offence, and
(b) the body corporate proves it took reasonable precautions to prevent the
conduct.
244D Failure to take reasonable precautions
For sections 244B(2) and 244C, a failure to take reasonable precautions may
be evidenced by the fact that the conduct was substantially attributable to--
(a) inadequate management, control or supervision of the conduct of one or
more of the body corporate's employees, agents or officers, or
(b) failure to provide adequate systems for conveying relevant information
to relevant persons in the body corporate.
[32] Section 272A Prohibition on certain insurance or indemnity arrangements
Omit the penalty provision. Insert instead--
Maximum penalty--
(a) for paragraph (a)--
(i) for an individual--250 penalty units, or
(ii) for a body corporate--1,250 penalty units, or
(b) for paragraph (b) or (c)--
(i) for an individual--607 penalty units, or
(ii) for a body corporate--3,036 penalty units.
[33] Section 272A(2) and (3)
Insert at the end of section 272A--
Page 10
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(2) Subsection (1) places an evidential burden on the accused to show a
reasonable excuse.
(3) 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 this Act.
[34] Part 14, Division 1A
Insert after section 273--
Division 1A Silica worker registration
273A Silica worker register
(1) SafeWork NSW may establish and keep a silica worker register in accordance
with the regulations.
(2) A person conducting a business or undertaking must, in accordance with the
regulations, give SafeWork NSW information for inclusion on the silica
worker register.
Maximum penalty--
(a) for an individual--243 penalty units, or
(b) for a body corporate--1,214 penalty units.
273B Access to silica worker register
(1) The silica worker register must not be publicly available.
(2) The following agencies may access and use information on the silica worker
register--
(a) SafeWork NSW,
(b) Insurance and Care NSW, established under the State Insurance and
Care Governance Act 2015,
(c) a government sector agency prescribed by the regulations.
(3) Information on the silica worker register may be used for the following
purposes--
(a) tracking the health and safety of a worker with information on the
register, including conducting epidemiological research,
(b) a purpose prescribed by the regulations.
[35] Section 274 Approved codes of practice
Insert after section 274(2)--
(2A) Consultation under subsection (2) is not required for a variation of an editorial
nature or to correct a typographic error.
Example-- A variation to amend or update the name of a document referred to in a
code of practice is an example of an editorial change.
[36] Section 274(5)
Omit "and a newspaper circulating generally throughout the State".
[37] Section 276 Regulation-making powers
Omit "345 penalty units" from section 276(3)(h). Insert "365 penalty units" instead.
Page 11
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[38] Schedule 3 Regulation-making powers
Insert after Schedule 3, clause 14--
15 Registers
Matters relating to registers, including the following--
(a) the keeping of registers,
(b) the publication of registers,
(c) fees, including for access to and searches of a register.
16 Approval or authorisation of training providers and courses
Matters relating to the approval or authorisation of training providers and
training courses for the purposes of this Act, including the following--
(a) conditions of approvals and authorisations,
(b) revocation or variation of approvals and authorisations,
(c) fees for approvals and authorisations.
[39] Schedule 4 Savings, transitional and other provisions
Insert at the end of the schedule with appropriate part and clause numbering--
Part Provisions consequent on enactment of Work
Health and Safety Amendment Act 2023
Insurance and indemnity arrangements
Section 272A(3) does not apply to a contract of insurance or other
arrangement, or a grant of indemnity for liability, in force immediately before
the commencement of the Work Health and Safety Amendment (Review) Act
2020.
Page 12
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 2 Amendment of Work Health and Safety Regulation 2017
Schedule 2 Amendment of Work Health and Safety
Regulation 2017
[1] Clause 5 Definitions
Omit the definitions of asbestos and asbestos containing material from clause 5(1).
[2] Clauses 19, 22, 46, 47, 50(3), 66(2) and (5), 68, 70, 77(5), 85(1)-(3), 149, 150(1) and (2),
151, 162(4), 165(1), 176(2), 182(4), 184B, 184C, 184K, 187, 188, 195, 196, 198, 200, 213,
224, 235, 236, 239, 253, 254, 294-296, 298, 301, 302, 303(3), 304(2)-(4), 308, 310, 311,
312, 313(3), 316, 317, 327, 336-338, 344(3), (5) and (6), 346(3), 347(3), 369, 371(2), 372,
373, 385, 387, 388, 398(2), 401, 403, 409, 410, 415(2), 425-428, 429(5), 430, 432(5), 433,
438, 439, 446, 448, 451(5), 454, 455, 464(3), 465, 466, 482(3), 529, 547, 548, 551, 553,
555(5), 557(8), 560, 562, 563, 567(4), 570 and 576
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--43 penalty units, or
(b) for a body corporate--217 penalty units.
[3] Clauses 39-45, 48, 49, 50(1), 53, 55, 57-59, 61, 64, 65, 67, 69, 71-75, 76(1), 78-80, 84,
142B, 142C, 154-161, 163, 164, 166, 168, 177-179, 183, 184O, 184Q-184S, 189-194,
197, 199, 201, 202, 204-212, 215, 216, 218, 219, 222, 223, 225, 231-234, 238, 240, 241,
299, 300, 306, 309, 314, 329-335, 339, 340(1) and (2), 341-343, 344(1), 345, 346(1),
347(1), 348-350, 352-363, 365-368, 370, 371(1), 374-377, 379, 389, 391(2), 395-397,
398(1), 399, 400, 402, 405-408, 411-414, 415(1), 416, 417, 419, 420, 422, 424, 429(2)
and (3), 432(2) and (3), 434-437, 440-443, 445(1), 449, 450, 451(2) and (3), 452, 453,
456-460, 462, 463, 464(1), 467-477, 479-481, 482(1) and (2), 483, 484, 536, 554, 555(1)
and (4), 556, 557(1) and (5)-(7), 558, 559, 564-566, 567(1)-(3), 568, 569, 571, 572(1) and
573-575
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--73 penalty units, or
(b) for a body corporate--364 penalty units.
[4] Clauses 50(2), 66(3), 76(2), 77(2)-(4), 85(4), 94, 96-98, 111, 124-127, 139, 142, 142E,
143I-143K, 143P, 143Q, 143ZD, 150(3), 162(2), (3) and (5), 165(2), 170, 175, 176(3), 180,
181, 182(2), (3) and (5), 184J, 184T, 184U, 226, 228-230, 237, 242, 260, 262, 273, 275,
282, 287, 288, 288D, 303(1), (2) and (4), 304(5), 313(1), (2) and (4), 326, 340(3) and (4),
364, 378, 390, 391(3), 404, 418, 423, 444, 445(3) and (4), 461, 505-507, 512, 513, 525,
572(4), 587, 588, 593, 594 and 607
Omit the penalty provision wherever occurring. Insert instead--
Maximum penalty--
(a) for an individual--15 penalty units, or
(b) for a body corporate--75 penalty units.
[5] Clause 184U Duties of food delivery riders
Insert after clause 184U(2)--
(3) For the Act, section 243 a police officer is an authorised officer for an offence
under this clause.
[6] Clause 419 Work involving asbestos or ACM--prohibitions and exceptions
Insert after clause 419(3)(j)--
Page 13
Work Health and Safety Amendment Bill 2023 [NSW]
Schedule 2 Amendment of Work Health and Safety Regulation 2017
(k) work that is being carried out in accordance with a prohibited asbestos
notice issued under the Act, section 197B.
Page 14
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