Victoria's Missing Due Diligence Duty: Is Officer Accountability the Weak Link in Workplace Safety?

Note: The following article expands on the analysis in: Lack of Proactive Officer Duties Drives a 30 % Higher Workplace Fatality Rate

The Model Work Health and Safety (WHS) Act is built on a simple but powerful proposition: workplace safety failures often begin with governance failures.

For that reason, New South Wales and other jurisdictions operating under the Model WHS laws impose a personal due diligence duty on officers. Rather than allowing directors and senior executives to simply assume that safety systems are functioning effectively, the law requires them to actively and continually verify that workplace health and safety risks are being identified, controlled, monitored and reviewed.

The underlying philosophy is straightforward: requiring officers to seek evidence that safety risks are being effectively managed is intended to strengthen governance and improve safety performance. Under the Model WHS framework, safety is not something that officers can delegate and forget. It is something they must actively assure themselves is happening.

OHS Law vs WHS Law

Unlike NSW and other Model WHS jurisdictions, Victoria's Occupational Health and Safety Act contains no equivalent officer "due diligence" duty. Instead, officer liability in Victoria is largely addressed through section 144 of the OHS Act, which applies where a corporate contravention is attributable to an officer failing to take reasonable care.

Unlike the Model WHS Act's proactive officer assurance framework, section 144 does not prescribe any ongoing assurance activities, verification obligations or governance requirements before an incident occurs. Victoria's officer-accountability mechanism is therefore materially more reactive. This distinction may appear subtle, but its implications may be significant.

Under the Model WHS Act, officers are expected to maintain current WHS knowledge, understand workplace risks, ensure appropriate resources are available, verify that reporting systems are functioning and satisfy themselves that controls are working in practice. The obligation is proactive. It requires evidence, inquiry, verification and continuous oversight. Victoria imposes no equivalent positive duty. As a consequence:

• NSW directors have personal legal obligations to seek assurance that safety systems are effective.

• Victorian directors do not have the same explicit statutory obligation.

• This may reduce incentives for rigorous board-level scrutiny of workplace health and safety performance.

The legislative difference would be little more than an academic discussion if safety outcomes were broadly the same. However, the historical record suggests otherwise.

Historical evidence

For many years, Victoria has consistently recorded more workplace fatalities than New South Wales, despite NSW employing more workers and requiring officers to actively exercise due diligence in relation to workplace health and safety. While correlation alone cannot establish causation, the long-term pattern is difficult to ignore.

The Model WHS Act assumes safety performance improves when officers are legally required to verify that risks are being managed. Victoria's OHS Act makes no equivalent demand, yet the historical record suggests that such officer assurance obligations do influence safety outcomes.

Victoria's long-term fatality performance suggests that the reactive accountability model embodied in section 144 of the Victorian OHS Act is a poor substitute for proactive officer assurance. The practical difference is significant. One framework requires officers to demonstrate active safety leadership before something goes wrong. The other focuses on whether an officer can establish, after the event, that they took all reasonable measures. If the objective is prevention rather than prosecution, then the question is no longer whether officer assurance matters. The question is whether Victorian organisations can afford to ignore it.

A Practical Path Forward?

Importantly, there is nothing preventing Victorian organisations from voluntarily adopting the officer assurance duties reflected in section 27 of the Model WHS Act as a best-practice governance measure. While organisations operating in Victoria must comply with the Victorian OHS Act, implementing Model WHS Act officer assurance duties can provide an additional layer of board and executive oversight. In practice, this means directors and senior officers actively seeking evidence that risks are being identified, controlled, monitored and reviewed, rather than simply assuming safety systems are functioning effectively. For organisations with Victorian operations, adopting officer assurance duties may strengthen governance, accountability and safety leadership beyond the minimum requirements of Victorian law.

Victorian organisations may not be legally required to implement officer assurance duties. However, if better governance leads to better safety outcomes, waiting for legislative reform should not be a prerequisite for action. Rather than relying solely on the broad and retrospective "all reasonable measures" defence contained in section 144 of the Victorian OHS Act, organisations can choose to adopt the proactive officer assurance principles embodied in section 27 of the Model WHS Act. Organisations that make that choice may be better positioned to protect their workers, strengthen accountability and improve safety outcomes.