Safe Work Australia's Best Practice Review of Model WHS Act & Regulations

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss Safe Work Australia's review of the model Work Health and Safety (WHS) Act & Regulations, and R2A’s submission response.  

Key points include:

• Contradictions between the WHS legislation, regulations, and common law requirements, particularly for designers and engineers. 
• Concerns around the hierarchy of controls and how they are interpreted by regulators.
• Inconsistencies in how the WHS legislation is implemented across different jurisdictions.
• Misalignment between WHS legislation and planning laws, creating challenges in integrating safety considerations early in the design process.

The discussion highlights the need for greater clarity and consistency in the legal framework governing workplace health and safety, to ensure effective implementation, especially for designers and engineers.

More information on the review is available at https://consult.swa.gov.au/best-practice-review. Submissions close 3 November 2025.

Tickets are (currently) available for our Live Forum on 21 October 2025 “Preventing Criminal Manslaughter – Understanding & Implementing SFAIRP” via https://www.eventbrite.com.au/e/preventing-criminal-manslaughter-understanding-implementing-sfairp-tickets-1653602251849.

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events.

Gaye is also founder of Australian women’s safety workwear company Apto PPE https://www.aptoppe.com.au.

Transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Safe Work Australia's best practice review of the Model Work Health and Safety (WHS) Act and Regulations and outline their submission response.

(00:20):

We hope you enjoy the chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

(00:38):

Tickets are also still available for our live forum in person and online on 21st of October, 2025. You can find the link in this episode's description.

Gaye Francis (00:50):

Good morning, Richard. Welcome to our podcast session.

Richard Robinson (00:53):

Good morning, Gaye. Welcome back.

Gaye Francis (00:54):

Thank you. It's been two weeks of school holidays, so it's nice to be back.

Richard Robinson (01:01):

I'll mention this to your kids the next time I see them.

Gaye Francis (01:04):

True, true. Straight into it today. What we're going to talk about today is Safe Work Australia has a discussion paper out titled Best Practice Review of the Model Work Health and Safety Laws - Discussion Paper dated September, 2025. And they're asking for submissions till the 3rd of November (2025). And of course, R2A can't help itself, but we need to respond to these sort of things.

Richard Robinson (01:28):

Particularly since there are some glaring contradictions and in so far as we can tell from the point of view of designers, Section 22 of the WHS legislation or section 28 if you happen to be in Victoria, which requires the SFAIRP application. And there has been quite really categorical contradictions, which we've never quite understood. And one would hope that Safe Work would be willing to have a crack at the legal framework to try and fix these things.

Gaye Francis (01:54):

I was just going to say that the key questions for this sort of best practice achieves the object of the Model WHS Act section three within this context, how do we maintain best practice in response to the changing nature of work and emerging risks? And how can harmonisation of WHS laws be strengthened and maintained across jurisdictions into the future? And I think getting that consistency across a whole lot of things, and we've sort of got three key points and we might go through them. We'll go through 'em today.

(02:22):

It's really that the Act versus the Regulation and the Code of Practice.

Richard Robinson (02:28):

Correct.

Gaye Francis (02:28):

And there's a contradiction there, and we'll go through that in a little bit more detail. I think there's a huge mess around the hierarchy controls of what's in the legislation compared to the common law and then what the regulators are promoting.

Richard Robinson (02:42):

Correct.

Gaye Francis (02:43):

And I guess we've come from it from a practical viewpoint of a practical implementation of the WHS legislation, especially for designers and engineers. And that sort of leads on to what you were saying before about the designer section, Section 8.

Richard Robinson (02:59):

Well, the other one is the basic non-alignment of planning law with WHS legislation, which has got us confused as engineers. And then as far as I can tell, the lawyers aren't clear on it either.

Gaye Francis (03:19):

So I think you've given the introduction of the contradictions for the designers and the requirements of designers. And so I guess the next one is the contradiction of the Act and the Code of Practice in particular.

Richard Robinson (03:37):

This is one which keeps emerging. The Code of Practice follows pretty much the Risk Management Standard. So I'm just going to look at the little diagram that the most recent one puts out. And it says Identify hazards, assess risk, control risks, and review risk controls. And that pretty much follows the Risk Management Standard, which so far as we can tell, doesn't follow the process that you need to in order to survive Common Law scrutiny and presumably statutory.

Gaye Francis (04:00):

And when we say assess the risk, we are talking about consequence and likelihood, aren't we?

Richard Robinson (04:04):

Correct. By risk assessment? So you can have high consequence, low likelihood to be low risk still.

Gaye Francis (04:09):

Yes.

Richard Robinson (04:10):

Despite the fact that something really nasty. So it's high consequence, low likelihood could still occur. Now the way we always do it, and we've tested it for so many lawyers, it really sort of got to the point that you, yeah...

Gaye Francis (04:24):

We're not quite bored with it, but it is going down that path.

Richard Robinson (04:28):

But our recommendation is you follow what we understand to be the Common Law approach, and that is you identify the credible critical ones, the ones that can kill the maim, then you identify the further possible precautions that could be put in place, and then you work out what's reasonable in the circumstances based on what you know, which then is supposed to be an objective test. And then you have a QA system to make sure that what you've agreed is sustained. Now that actually contradicts the Risk Management Standard approach very thoroughly.

Gaye Francis (04:55):

And some of the commentary that goes with that, it's sort of for known hazards. If there's known solutions, you just put those in place. But what we're saying is the SFAIRP principle actually asks you to look at all of the controls that could be put in place.

Richard Robinson (05:09):

Correct. For the critical ones.

Gaye Francis (05:10):

For the critical ones, and then determine what are reasonable in the circumstances. So that might be more or different to the ones that are already in place.

Richard Robinson (05:18):

And it may well be different to what's in a Standard.

Gaye Francis (05:21):

Yes. So you just have to be careful there that you're not just doing what everyone else does or what's common practice. It may not be relevant in the circumstances.

Richard Robinson (05:33):

Correct. And it will be the judiciary that decides what's relevant in the circumstances. I mean, the way it actually works, I mean something bad happens, somebody gets killed or maimed, it goes to court, or the expert pop up after the event, and say, with the advantage of hindsight, what could have been done, which isn't that hard. And then the court decides in all the circumstances whether the ideas dreamed up by the experts were sensible in view of what was known at the time the decision was made.

Gaye Francis (05:59):

That is, were they reasonable?

Richard Robinson (06:01):

Yep.

Gaye Francis (06:03):

So yes, that's probably the first one and we are putting that in our letter. The next one for me, and this is the one that probably annoys me the most, is the hierarchy controls and the different commentary that's going around about those, and especially from regulators. So we've covered this many times. The WHS legislation has a hierarchy of two. You must eliminate first, and if you can't eliminate, you can reduce it, so far as reasonably practicable. When you go to court, it's divided into three categories. Elimination, prevention, you stop the thing from happening and then mitigations, which stops the escalation of the consequences or reduces the consequences.

Richard Robinson (06:44):

And the example you usually give us is of the rail road crossings level crossing. So obviously if you want to eliminate, you can grade separate at great expense or you can put up boom barriers, which will stop the incident from happening at all. And if that fails, you go with crashworthiness, all of which happen to be engineering controls, and which engineering only pops up typically as one out of six controls that most regulators put up.

Gaye Francis (07:07):

And that's probably the other area is that how regulators do it. And we've seen 'em everything from three to four to seven sort of categories.

Richard Robinson (07:19):

Well, different jurisdictions have different things, but the most popular one seems to still be six with eliminate being the top and then another five. But Victoria's down to four I think. And sometimes you're seeing Queensland, they've got both six and three. It's very confusing if you're a designer as to which one you're supposed to use.

Gaye Francis (07:35):

And they've also grouped some of them together. So isolation, engineering and substitution.

Richard Robinson (07:41):

Well, that's how they shrink it down. What's interesting from our point of view is they're getting closer and closer to what we understand to be the way the courts go about it. But for some reason...

Gaye Francis (07:50):

The terminology is not the same though. And I think that's where it's confusing. So I think to harmonise the WHS legislation, if the regulators could get on board of what an agreed...

Richard Robinson (08:01):

It would be really helpful the regulators would talk to Safe Work Australia, I think.

Gaye Francis (08:04):

Yes. And streamline that process. I think that would take a lot of confusion out for engineers. And the third one is probably Richard's favourite part at the moment, is the planning legislation.

Richard Robinson (08:16):

Wouldn't call it favourite!

Gaye Francis (08:19):

Or the area that's causing the most difficulty and confusion is the planning laws and WHS legislation.

Richard Robinson (08:26):

Yeah. Because what seems to be happening is that planning law basically has a life of its own, unless there's some forced connection between WHS legislation seems to be ignored. I mean, probably the one that hit us the hardest, and that I've got to say practically was when we did the hazard and risk analysis for Western Sydney Airport because we didn't start the job until we got the Australian government solicitor to agree that the owner and operator at the airport had to comply with the WHS legislation. But then when the planning process went through, we sort of got told, well, you don't have to follow the legislation for the EIS. And that's really weird because most of the core hazards are set up right at the start of the planning process.

Gaye Francis (09:01):

Well set up, but also able to be dealt with at the most, at the easiest part on a pen and paper and a planning stage than it is once it's been implemented.

Richard Robinson (09:12):

Yeah, no, I think we've already spoken about it, so I don't propose to go into it here, but the only time when we've found a good connection between the two is when the planning law has a requirement that advice needs to be received from the relevant regulator, for example, major hazards, in which case the planning system actually does take cognizance of the obligations. But then it's more the obligations.

Gaye Francis (09:34):

Only if it's brought up though.

Richard Robinson (09:36):

That's correct. It has to be forced into the system somehow. And in that sense, in Victoria, the VCAT one we're talking about, the council had to actually ask the opinion of the WorkSafe Victoria with regards to a major hazard facility. WorkSafe Victoria presented an opinion, therefore that opinion then had to be thought about.

Gaye Francis (09:54):

Yeah. And I am sure there's other legislation that would have conflicting requirements as well, but that's the one that we've sort of come across.

Richard Robinson (10:05):

Yeah, they're the three sort of biggest that we've come across, which obviously we're going to advise. And for those of you who are contemplating coming to our October (2025) event with regards to SFAIRP, these sort of questions will pop up there possibly depending on what people ask.

Gaye Francis (10:24):

Yeah. And the discussion will sort of be around these things. So I think as we said before in our podcast, we're not actually sure what the event will turn out like and what discussions will be had.

Richard Robinson (10:35):

We're pretty sure it's the questions that are going to be the best part.

Gaye Francis (10:38):

The discussion part will be the best part. And I think some of these things that we've been talking about, there's no one answer to do it, but there's ways and people think about these things differently. And I think that's the important part that these difficult conversations are being had.

Richard Robinson (10:54):

Well, it is essentially, if you look talking the larger thing, I mean the WHS legislation was attempting to get societal alignment from problems that arose since Federation, big step forward. But it went to the highest level, the parliamentary level. And even Victoria still has to put in the adopted it, even though we have the SFAIRP business, we don't have the due diligence business, but we've certainly got all the obligations and designers that's pretty much the same. But then the next level down in effect is what we're actually talking about. And that harmonisation hasn't happened properly yet, which is what Safe Work is actually asking for.

Gaye Francis (11:27):

And I think if anyone was interested in going through that discussion paper, it's actually a good read and they've sort of put the differences between the different jurisdictions. So even though you've got a model WHS Act.

Richard Robinson (11:39):

You haven't got the regulators harmonising themselves yet.

Gaye Francis (11:41):

So there's some harmonisations and there's been a number of tweaks to the legislation that makes each jurisdiction that just that little bit different from each other. So they're sort of saying, is there some consistency that can be thought through?

Richard Robinson (11:56):

We don't know what motivated this particular best practice request. We have some suspicious that the points we're making may be relevant.

Gaye Francis (12:05):

Yes. So I hope you found today's podcast interesting. Thanks for joining us, as always, Richard, and we'll see you next time.

Richard Robinson (12:12):

Thanks Gaye.