Reverse onus WHS laws promised by new Labor Government

Shae McCartney, Hilary Searing and Evie Shaw
09 Jun 2022
Time to read: 3 minutes

With Labor taking power following the Federal election, companies are carefully considering what changes are likely, following a proposed raft of industrial law reforms, not least of which is the proposed reversal of laws to put the onus of proof on companies, instead of the prosecution, in work health and safety prosecutions.

The Labor Government’s national platform, which was debated and adopted last year, sets out the proposals to be implemented by the new Anthony Albanese Labor Government. According to the document, the Labor party intends to take a number of steps to “advance a national work health and safety agenda through a refinanced, enhanced and properly tripartite Safe Work Australia".

The proposed reforms (which are set out in the national platform) will also be aimed at “enabling workers, families and unions to again be able to prosecute for breaches of WHS laws and require those who conduct businesses and their officers to bear the onus of proving that they have taken reasonably practicable measures to prevent a WHS offence occurring”.

When Labor officially won the last 76th seat it needed to be able to pass industrial legislation in the lower house, the likelihood of these policy positions becoming reality became one step closer, however, it will still need to secure the support of the Greens, plus one other (possibly an independent) to secure the 39 votes required to get any new industrial relations laws through the Senate.

Reverse-onus WHS laws

Reverse onus Workplace Health and Safety laws have been a contentious topic over the past two decades in Australia.

Currently, in all jurisdictions in Australia, the prosecution bears the onus of proof in a WHS prosecution. Prosecutors must prove all matters relating to non-compliance with duties of care, including whether the person conducting the business or undertaking failed to ensure the health and safety of workers so far as reasonably practicable.

It has not always been this way. Before the harmonised legislation/model WHS laws were introduced in 2011, New South Wales and Queensland provided for a reverse onus of proof for offences relating to duties of care. That is, the company being prosecuted (defendant) would need to prove the steps it took to prevent the incident from taking place.

However, prior to 2011, companies in Queensland and NSW duties were not subject to the qualifier of what was “reasonably practicable”, so, at that point in time, it was more appropriate that in a prosecution a defendant be required to show that they had done everything possible to ensure safety. Having taken reasonably practicable steps was the basis of the defence.

In all other jurisdictions, the burden of proof for duty of care offences was placed entirely on the prosecution. The 2008 National Review considered this issue carefully and recommended that in the model WHS Act, the prosecution should bear the criminal standard of proof for all elements of a WHS offence, which is now the current position in all jurisdictions in Australia.

The harmonised laws in 2011 introduced a greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof. This was a major change in Australia.

The present approach reflects the view that WHS offences are criminal offences and as such, it is appropriate that the burden of proof rest with the prosecutors (particularly given the substantial increase in the size and range of penalties for WHS offences, including imprisonment).

Although part of Labor’s proposed reforms, the impetus did not come from Marie Boland’s 2018/19 review into WHS laws, which states:

“Given that I am recommending a further increase in penalties; and the introduction of a new industrial manslaughter offence, I consider that the current onus of proof is appropriate for the nature of the offences under the model WHS Act. I am therefore not recommending that the onus of proof be reversed. I have also considered the calls for union right to prosecute in this context and for the same reasons am not recommending a change in the current model WHS laws”.

Unions are very supportive of reverse onus WHS laws being reintroduced, arguing that it is in the public interest in ensuring the health and safety of people at work. Unions are also calling for the ability to initiate prosecutions. It is likely the unions will put pressure on the government to stick to their word and take steps to implement the promises made in their national platform and campaign, however, we are yet to understand if the Labor policy position will remain if penalties are increased, and with the introduction of industrial manslaughter laws across the country.

Implications for employers

Given the opposing views, we expect this issue will be the subject of debates in the new Parliament. Although a bill has not yet been introduced, so it is not certain whether or not these legislative changes will be introduced, or passed, it is an important part of the dialogue as to the increased community, regulator and stakeholder expectation with respect to the seriousness of the WHS offences.

A reversal of the onus of proof would be a significant change for employers, who would have to prove they took all reasonably practicable steps to prevent the incident from taking place. Companies should consider the following:

  • the proposed changes reinforce the need not only for sophisticated safety management systems, but the documentation of such;
  • regulators will use all tools at their disposal (which are vast) in investigating alleged breaches;
  • companies should invest in document management of WHS related matters, given the evidentiary relevance of not just formal documents, but also minutes, emails, texts and even Microsoft Teams communications;
  • companies should train their officers and managers, who should be trained in their obligations, incident response and crisis management.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.