The national WHS law review recommends that following a code of practice count as meeting your duty, and that anyone be able to prosecute

Safe Work Australia gave the report to WHS ministers on 4 August 2026, and ministers agreed to publish it in October. Its page says the recommendations will now go through Safe Work Australia’s tripartite member processes, with more consultation where needed. Each jurisdiction would then have to change its own law, and the report notes that Victoria remains outside of the model framework. We set out what the model laws say now in our WHS laws explainer.

A code of practice would become a safe harbour

Today a code of practice is evidence. Under section 275 of the model WHS Act a court can use a code to decide what was known about a hazard and what was reasonably practicable, and a business can meet its duty a different way if it reaches an equal or higher standard. Recommendation 15 goes further: a person who complies with a code is taken to have complied with the relevant WHS duty in relation to matters addressed by that Code. The report describes this as answering the call, particularly from small business, to tell us what to do. Recommendation 16 asks for industry codes, starting with retail, education and training, agriculture and construction, and recommendation 17 would have codes apply automatically in model-law jurisdictions once ministers agree them.

Prosecution would no longer be only the regulator’s call

Under section 230, a WHS prosecution is brought by the regulator, an inspector it authorises, or the Director of Public Prosecutions. Recommendation 10 would give any person or organisation standing to prosecute, drawing on NSW and New Zealand, with the provisions reviewed three years after they start. The report argues that the cost and evidence burden of a prosecution, and the courts’ own gatekeeping, limit the risk of frivolous cases.

Recommendation 11 closes what the report calls a gap left by the 2018 review. After that review the model Act banned insurance for WHS fines (section 272A), but not for the legal costs of defending a prosecution, and penalties are sometimes small next to those costs. The aim, in the report’s words, is to make WHS penalties stick and prevent them from being seen as just another cost of doing business.

The other changes duty holders would notice

The report also lists 13 things Safe Work Australia’s members agreed to do without waiting for ministers. They include an annual scorecard of where each jurisdiction departs from the model laws, new groups on compliance and enforcement and on reducing work-related deaths, and arrangements with coroners’ courts to share findings.

Our view: recommendation 15 is the one to watch

This is opinion, built on the recommendations above. Most of the report tidies, extends or harmonises. Recommendation 15 changes what a code is. Today a business that follows a code still has to ask whether that was reasonably practicable in its own circumstances; under recommendation 15, following the code would answer that question for the matters the code covers. For a small business that is a real gain in certainty. The cost is that a code becomes a ceiling as well as a guide, which puts much more weight on codes being current. The report itself recommends a programme of new industry codes and a review of the regulations, so the safe harbour is only as good as that work. Paired with recommendation 10, the package gives business more certainty about what the law requires and gives workers and others more ways to enforce it. Whether either survives depends on ministers and then on each parliament.