In NSW a code of practice is no longer advice, and ‘should’ is the word that changed

Our map of Australia’s WHS laws sets out the three layers: the Act, the Regulations, and codes of practice underneath. Our companion piece explains who writes those codes and who enforces them, which are not the same body. This page is about the one jurisdiction that has moved a code out of the bottom layer.

What changed, in the regulator’s own words

SafeWork NSW puts it in a single sentence on its own codes of practice page: With the commencement of section 26A of the Work Health and Safety Act 2011 on 1 July 2026, Codes become the minimum performance standards that a PCBU is expected to comply with. And then the duty itself: The duty requires PCBUs to comply with Codes of practice or, to manage hazards and risks in a different way that is equivalent or higher than the standard in the Code.

The government describes the same change more bluntly. Its announcement says Codes of Practice in NSW are now legally enforceable minimum standards that workplaces must comply with or risk breaching the Work Health and Safety Act, and claims the reform is giving NSW the strongest position on Codes of Practice in the country.

What it replaced, and what survived

The old position has not been deleted. It is still true that Under the Work Health and Safety Act 2011, Codes of practice are admissible in court proceedings, and still true that Courts may regard a Code of practice as evidence of what is known about a hazard, risk, risk assessment or risk control. It is still true that An inspector can refer to a Code of practice when issuing an improvement or prohibition notice.

What section 26A adds is a duty that sits on top of all that. Before, a code was something a court could hold against you after the fact. Now it is something you are required to meet, or to beat, before anything happens at all. That is a different kind of obligation, and it arrives without changing a word of the codes themselves.

The word that changed: ‘should’

This is the part worth acting on today, and it is the reason to go back and re-read a code you thought you understood. SafeWork NSW sets out the vocabulary the codes use to signal legislative expectation, and the middle term is the trap.

In ordinary English, ‘should’ is advice and ‘may’ is permission. In a NSW code they are now a long way apart. ‘Should’ is the standard; the only lawful alternative is one you can show is equivalent or higher. ‘May’ is the word that means optional. Anyone who has skimmed a code treating every ‘should’ as a recommendation has been reading it under the old rules.

The alternative route, and what it costs you

Section 26A is not a prohibition on doing things your own way. Both the regulator and the government describe an alternative: manage the hazard differently, provided the standard is equivalent or higher. What has changed is who has to do the work of proving it. Under the old position, a code was evidence a prosecutor might raise. Under the new one, departing from a code is a decision you have to be able to justify on its own terms, in advance, in writing, before anyone asks.

SafeWork NSW is also explicit that a code is not the whole of the duty: Like regulations, Codes of practice deal with particular issues and may not cover all relevant hazards or risks. The primary duty is unchanged and is wider: WHS laws require duty holders to consider all risks associated with work, not only those for which regulations and Codes of practice exist. Meeting every applicable code is a floor, not a defence in itself.

Everywhere else, the model position still holds

This is a NSW change, and the contrast is the point. Safe Work Australia maintains the model codes but is not a regulator, and the model binds nobody by itself: To become legally binding the Commonwealth, states and territories must separately implement them as their own laws. Implementation is near-universal, The model laws have been implemented in all jurisdictions except Victoria, but implementing the model gets you the model’s position on codes, which is the admissible-evidence one described above.

So the government’s claim to the strongest position on Codes of Practice in the country is, on the documents we could read, a fair description of where NSW now sits rather than a boast. It is also a real divergence in a system whose whole selling point was harmonisation, and it means the sentence “the code says you should” now carries a different weight depending on which side of a state border the work is done.

What it does to a code you have already read

We should apply this to our own back catalogue rather than only to yours. This masthead has covered a good many codes: the psychosocial hazards code, the fatigue code, the biological hazards code, the healthcare code, the construction code. Every one of those pieces was written in a country where a code was guidance with evidentiary weight, and that framing is still correct for eight jurisdictions and no longer complete for the ninth.

Two practical consequences follow for a NSW reader. A code that reached you as “new national guidance” is now, in NSW, a standard you are expected to meet. And the government notes the codes were being prepared for this: In anticipation of the codes becoming mandatory SafeWork NSW has spent the last 12 months updating the Codes of Practice with representatives of business, unions and independent experts. So the version you filed a year ago may not be the version that now sets your floor. The list of current codes is on SafeWork NSW’s own page, and the one to check first is the one covering your worst hazard.