The Western Australian Government is expected to shortly announce that it will not nationalise its laws in line with the occupational health and safety nationalisation process that has been adopted by most other Australian states. Western Australia will, however, update its current safety legislation to include many of the components of the nationalised laws such as expanding the types of entities on which duties are imposed (where those duties are owed by the corporate body and personally by officers), statutory positions, risk management and safety systems requirements.

The timing for progressing any updated legislation through the Western Australian Parliament has not been decided by the relevant ministers, but it is not likely to occur until next year. It is anticipated that priority will be given to updating environmental laws due to the significant economic impact those laws are having on businesses in Western Australia.

This proposal will allow Western Australia to pick and choose those parts of the nationalised legislation it is anticipated will improve safety in the State, while avoiding the need to adopt those parts of the legislation that may bring less benefit to business in Western Australia.

It is anticipated that steps will be taken to keep the new legislation and the duties contained within it as consistent as possible with the nationalised laws that have been adopted across the country with a view to lessening the economic burden on corporations that operate in more than one state of Australia.

We look forward to a final decision being made on the process that will be adopted in Western Australia to update its safety legislation, such updates now being long overdue with the recommendations from the 5 yearly reviews of both the Mines Safety Inspection Act and the Occupational Safety and Health Act now outstanding.

What do you need to do?

Businesses and officers should continue to monitor developments in safety laws and prepare on the basis that the following provisions will eventually become law in Western Australia:

  • Changing the person who owes primary health and safety duties from the employer to a “person conducting a business or undertaking”.
  • Changing the position of Registered Manager to the “site senior executive” and adding some additional personal responsibilities on the person holding the position.
  • Training requirements to statutory positions;
  • Principal Hazard Management Plans (Mining);
  • Single work health and safety management systems for sites;
  • Officers’ due diligence; and
  • Overarching risk assessment provisions

What else is on the Western Australian agenda?

Western Australia is understood to be considering streamlining the Resources Safety Legislation with the view to ultimately merging the mining safety, petroleum safety and dangerous goods safety legislation into one Act called the Resources Safety Act, which will continue to be administered by the Department of Mines and Petroleum. It is understood that this consolidation will be considered as a second step in the process of customising and systemising the Western Australian safety legislation.

Review of Penalty Legislation

The Department of Mines and Petroleum is also developing a Penalty Policy for Western Australia. The intention of the Policy is to develop a check-list of items to be considered and processes to followed in formulating a penalty to be applied to offences. The department is understood to be looking at all options such as penalty points, a demerit system, fines based on company capitalisation, fixed fines, increased fines, or retaining fines at existing levels. It is also anticipated that the question of insurance will be considered in this Policy in light of recent developments highlighting the ability to insure against fines.

It is understood that the Department’s aim is not specifically to increase fines, but to develop a policy that fits with community and stakeholder expectations and will result in parity with penalties across similar legislation administered by other departments.