Guide 2 of 5 · How
Officer due diligence in six steps
For an officer, due diligence includes taking reasonable steps in six areas: knowing WHS matters, understanding the operations and their risks, resourcing the work to control those risks, handling information about incidents and hazards, having processes for the business’s duties, and verifying that those resources and processes are provided and used. The steps are written into section 27(5) of the WHS Act; below they are quoted from the Commonwealth’s, with SafeWork NSW’s practical reading of each.
General information, not legal advice. The official places to check are Safe Work Australia’s officer duties page, SafeWork NSW’s due diligence page for New South Wales, and the WHS regulator in your state or territory. Victoria has not adopted the model WHS laws; its law is the Occupational Health and Safety Act 2004, which this guide does not cover.
The text
Section 27(5), word for word
“(5) In this section, due diligence includes taking reasonable steps:
- (a) to acquire and keep up-to-date knowledge of work health and safety matters; and
- (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
- (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
- (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
- (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
- (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”
Work Health and Safety Act 2011 (Cth), section 27(5), as compiled at 1 July 2024
The word “includes” matters: the six steps are what due diligence includes, not a closed list. Under paragraph (e), the Act gives examples of the duties a business may have: reporting notifiable incidents, consulting with workers, ensuring compliance with notices issued under the Act, “ensuring the provision of training and instruction to workers about work health and safety”, and ensuring that health and safety representatives receive their entitlements to training.
In practice
Each step, as SafeWork NSW reads it
SafeWork NSW explains each of the six areas for the New South Wales Act, gives examples of practical actions, and names records an officer can point to. Its plain reading and its records, step by step:
- a
Keep up-to-date knowledge of WHS matters
Reasonable steps to obtain and maintain current knowledge of WHS matters, which SafeWork NSW says could include WHS law, risk management principles and current issues relevant to the operations.
Records it lists: “officer training records; board skills matrix; briefing packs on WHS law updates.”
- b
Understand the operations and their hazards
Taking reasonable steps to know what the business does and, in general terms, the hazards and risks its work creates.
Records it lists: “visit logs with observations; risk registers; critical risk heat maps discussed in executive leadership or board meetings.”
- c
Make sure resources and processes are provided and used
Reasonable steps to ensure the organisation provides, and actually uses, the people, plant, systems and controls needed to eliminate or minimise risk.
Records it lists: “capital requests tied to risk assessments; staffing plans; purchase or maintenance records for safety critical controls.”
- d
Receive, consider and respond to safety information
Reasonable steps to ensure the business has the resources to receive and consider information about incidents, hazards and risks, and to respond in a timely way.
Records it lists: “incident trend dashboards; action or closure reports; minutes evidencing decisions taken and timeframes met.”
- e
Have, and use, processes for every duty
Reasonable steps to ensure the business has, and implements, processes for complying with its duties and obligations. Beyond the Act’s own examples, SafeWork NSW lists other important processes in New South Wales: licensing or registration for regulated activities or plant, right to entry requirements (WHS entry permits), applying the hierarchy of controls, verifying that health and safety representatives and workers receive enough training and instruction, and clear lines of management responsibility for WHS.
Records it lists: a procedure suite, training matrices, consultation records, a licence or registration schedule, and a registry of notices showing the status of compliance.
- f
Verify steps (c) to (e)
SafeWork NSW says “verify” implies “actively confirming”, such as audits, inspections, reviews and follow-through, and “not passive receipt of reports.” One example: contractors and subcontractors adequately evaluated before they start work for the company.
Records it lists: “audit plans or reports; corrective action logs; completed decision register entries cross-referenced to Board or executive leadership minutes.”
SafeWork NSW says its examples are not exhaustive and are general guidance, that they are not a comprehensive statement of the law and are not a substitute for legal advice, and that anyone who needs help applying the law to their situation should seek “independent legal advice”.
The word
What “diligence” means
SafeWork NSW points to a 2024 decision, SafeWork NSW v Mitchell Doble [2024] NSWDC 58, which referred to an Oxford Dictionary definition of diligence: “constant and earnest effort to accomplish what undertaken; persistent application and endeavour; industry, assiduity”.
A duty of its own
Why the steps matter to the officer personally
The officer’s duty stands apart from the business’s. Under section 27(4) of the Commonwealth Act, an officer may be convicted or found guilty of an offence relating to the duty “whether or not” the business has been convicted or found guilty. In New South Wales, SafeWork NSW says that where a business fails a duty and the failure is partly or wholly attributed to an officer failing their section 27 duty, the officer may be found guilty of an offence.
Two of the other guides meet this one here: consulting with workers is one of the Act’s examples under paragraph (e), and psychosocial hazards fall within the officer’s due diligence too: SafeWork NSW says each officer must separately take reasonable steps to meet their due diligence obligations concerning them.