WHS – an imperfect harmony?

Last week the Queensland Government signalled potential changes to its model WHS Law, including the possible introduction of higher penalties and additional criminal offences for individuals. This, along with recent changes in State and Territory governments, poses the question – when do the model WHS Laws become "un-harmonised"?
 
By 1 January 2013 the Commonwealth and all Australian States and Territories, excluding Western Australia and Victoria, had enacted the model provision of the WHS Law. Since then, what first appeared to be minor "jurisdictional" changes have emerged as larger issues. These differences can create compliance headaches for nationally operating Persons Conducting a Business or Undertaking.
 
For example:
  • Inconsistency in sentencing has emerged, as Courts ranging from the Queensland Magistrates Court to the NSW Court of Criminal Appeal, undertake the process of sentencing.
  • Regulators have different powers, particularly in requiring answers to questions. Comcare has a "derivate use" provision, making evidence obtained as an indirect consequence of compelling answers inadmissible against individuals, and SafeWork SA cannot compel answers at all where an individual claims a protection from self-incrimination.
  • Different Codes of Practice are being followed, with SafeWork NSW preserving 20 "pre-WHS" Codes of Practice, in addition to adopting the Model Codes of Practice published by SafeWork Australia.

KEY TAKE OUTS

  • Persons Conducting a Business or Undertaking must keep a diligent eye out for minor, but potentially significant, jurisdictional variations.
  • National harmonisation of WHS Laws may start to become a distant memory as changes in Governments continue to occur across the country.