Officer due diligence under section 27: the six elements and the evidence that proves each one

Who is an officer for WHS purposes

An officer under the model Work Health and Safety Act is an officer within the meaning of section 9 of the Corporations Act 2001, other than a partner in a partnership, plus officers of the Crown and officers of public authorities, other than an elected member of a local authority acting in that capacity. Safe Work Australia's officer duties guidance frames the test functionally: an officer is a person who makes, or participates in making, decisions that affect the whole or a substantial part of the organisation's activities.

That test catches more people than a board list. A chief executive, a chief financial officer, a chief operating officer and a general manager with real authority over resourcing are ordinarily officers. A site supervisor with no influence over budget or strategy is ordinarily not. The dividing line is decision-making reach over the business, not job title and not proximity to the hazard. Safe Work Australia describes the officer duty as attaching to "the strategic, structural, policy and key resourcing decisions — that is, how the place is run."

Volunteer officers are excluded from prosecution for the section 27 duty, though they remain subject to the general duties owed by any person at a workplace.

Section 27 is a personal duty, not a delegated one

Section 27(1) requires an officer to exercise due diligence to ensure the person conducting the business or undertaking complies with its duties. The duty is owed by the officer personally, and section 14 of the model Act settles the point that it cannot be moved: "a duty cannot be transferred to another person." Sections 15 and 16 add that one person may hold several duties, and that where more than one person holds the same duty each must comply to the standard required even though another holds it too.

Section 27(4) makes the officer's exposure independent of the organisation's. An officer may be convicted or found guilty whether or not the business has been convicted or found guilty of an offence relating to the same duty. Safe Work Australia puts it more directly in its interpretive guide on the officer duty: the failure of an officer does not need to be tied to any failure or breach of the business in order for the officer to be prosecuted.

This is the practical difference between section 27 and the general directors' duties in the Corporations Act, which the directors' duties discharge obligation covers. A director can discharge a Corporations Act duty by making a reasonable business judgment on advice. An officer cannot discharge section 27 by receiving a report. The section requires verification.

The six due diligence elements

Section 27(5) defines due diligence as taking reasonable steps across six elements:

1. To acquire and keep up-to-date knowledge of work health and safety matters.
2. To gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations.
3. To ensure the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety.
4. To ensure the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks, and responding in a timely way to that information.
5. To ensure the business has, and implements, processes for complying with any duty or obligation under the Act.
6. To verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

The sixth element is the one that changes behaviour. Elements three, four and five can each be satisfied on paper by an officer who accepts management's assurance. Element (f) requires the officer to independently confirm that the resources and processes exist and are being used. A report that says the process is working is not verification; a sampled test that shows it working is.

The statutory examples under element five now name reporting notifiable incidents, consulting with workers, ensuring compliance with notices issued under the Act, ensuring the provision of training and instruction, and ensuring health and safety representatives receive their training entitlements. Each of those is a discrete evidence trail — see WHS consultation, HSRs and committees for the consultation and training limbs, and the notifiable incident duties for the reporting limb.

The evidence that proves each element

Due diligence is proved by artefacts that carry dates and names, not by an assertion of diligence. The mapping below is the one an inspector or a prosecutor works from.

Two evidence gaps recur in prosecutions. The first is a board pack that contains a lagging indicator — total recordable injury frequency rate — and nothing else, so the officer cannot show they considered hazards and near misses. The second is an absence of any record for element (f): every other element has an artefact and verification has none. Structure board compliance reporting so that verification is a standing line item with its own evidence.

What officers are actually prosecuted for

The model Act creates three offence categories. Category 1 under section 31 covers gross negligence or reckless conduct, engaged in without reasonable excuse, that exposes an individual to a risk of death or serious injury or illness. Category 2 under section 32 covers a failure to comply with a duty that exposes an individual to that risk. Category 3 under section 33 covers a failure to comply with a health and safety duty.

An individual convicted of a Category 1 offence faces the Category 1 monetary penalty, up to 10 years imprisonment, or both. As at 1 July 2026 the model maximum for an individual as a person conducting a business or an officer is $2,464,000 for Category 1, $494,000 for Category 2 and $165,000 for Category 3 (checked August 2026, from Safe Work Australia's maximum monetary penalties page). Adopting jurisdictions index separately — the Commonwealth Category 1 maximum is $3,407,000, Queensland's is 6,000 penalty units ($600,000), and Western Australia, South Australia, Tasmania and the Northern Territory sit between $600,000 and $680,000. Western Australia's Category 1 offence is also not identical to the model: it requires conduct that caused death or serious injury, rather than conduct that exposes a person to the risk.

Every jurisdiction now carries an industrial manslaughter offence, with the maximum penalty and the elements differing materially between them. The industrial manslaughter comparison sets out the state-by-state position.

Insurance against WHS penalties is void

Section 272A of the model Act prohibits entering into, providing, or taking the benefit of a contract of insurance or an indemnity covering all or part of a liability for a monetary penalty under the Act. A term purporting to do so is void. Section 272B extends personal liability to an officer of a body corporate involved in a contravention of section 272A.

This is not universal. Safe Work Australia's jurisdictional comparison table records sections 272A and 272B as not used in Tasmania and the Northern Territory, and Western Australia renumbers the operative offence. Before relying on a directors and officers policy to respond to a WHS penalty, confirm the position in the jurisdictions you operate in — the penalty estimator shows the exposure the policy would need to cover, and in most jurisdictions it cannot.

A quarterly due diligence cycle

A defensible cycle produces six artefacts a quarter, one per element, and takes a few hours of officer time.

Each quarter, review one regulator alert or code of practice relevant to your operations and record that you did. Visit at least one site and file notes that are yours, not the site manager's. Review the WHS resourcing position against the risk profile and minute any decision. Read the incident and hazard register directly rather than a summary of it, and check response times against the escalation standard. Confirm outstanding notices, overdue training and unfilled HSR entitlements. Then pick one control and test it — ask for the evidence, not the assurance.

The director duties tool helps scope the wider personal-liability picture, and mapping WHS obligations into the standing obligations register keeps the section 27(5)(e) limb current between reviews.