Sections 30–33: WHS Offences and Penalty Categories

Regulatory citation: Model Work Health and Safety Act, Part 2, Division 5, Sections 30–33 (including section 30A), Offences and penalties

What Are the WHS Offence Categories?

Division 5 of Part 2 of the model WHS Act sets out the offences for failing to comply with a health and safety duty. There are three tiers, Category 1, 2 and 3, graded by how serious the conduct is and whether someone was exposed to a risk of death or serious injury or illness. Section 30A deals with industrial manslaughter.

Why the Categories Matter

The category decides the maximum penalty. It also affects other options, for example an enforceable undertaking cannot be accepted for a Category 1 offence. Knowing how the tiers work helps businesses and officers understand their exposure.

Core Obligations

1. Health and Safety Duties (s30)

A health and safety duty is a duty imposed under Division 2, 3 or 4 of Part 2. That includes the PCBU primary duty, the further PCBU duties in sections 20 to 26, and the duties of officers, workers and other persons in sections 27 to 29.

2. Industrial Manslaughter (s30A)

Since the 2023 amendments, section 30A of the model Act refers to a jurisdictional note. It does not itself create the offence. Each jurisdiction may insert its own industrial manslaughter offence, aimed at conduct that is a gross deviation from the reasonable standard of care and results in a work-related death. The model penalty for an individual is 20 years' imprisonment, with a large monetary penalty for a body corporate. Elements differ between jurisdictions.

3. Category 1 Offence (s31)

A person commits a Category 1 offence if they have a health and safety duty, engage without reasonable excuse in conduct that exposes an individual to whom the duty is owed to a risk of death or serious injury or illness, and either engage in the conduct with gross negligence or are reckless as to the risk to an individual of death or serious injury or illness. Gross negligence was added in the 2022 amendments, and a jurisdictional note lets each jurisdiction choose its own term. The prosecution must prove the absence of a reasonable excuse. A 2023 amendment confirmed that officers can commit this offence. Individuals face imprisonment as well as fines.

4. Category 2 Offence (s32)

A person commits a Category 2 offence if they have a health and safety duty, fail to comply with it, and the failure exposes an individual to a risk of death or serious injury or illness.

5. Category 3 Offence (s33)

A person commits a Category 3 offence if they have a health and safety duty and fail to comply with it. No exposure to a risk of death or serious harm is needed.

6. Penalty Levels and Indexation

Each category has three maximum monetary penalties: one for a body corporate, one for an individual who is a PCBU or officer, and a lower one for other individuals. Under the model Act, amounts are increased in line with CPI each year on 1 July, starting 1 July 2024. Jurisdictions express and index penalties differently, so check current figures with your regulator.

7. Volunteers and Associations (s34)

Volunteers are not liable for failing a health and safety duty except as workers (s28) or other persons (s29). Unincorporated associations are not liable, but officers who are not volunteers and members can be.

8. Corporate Liability and Aggregation (ss244A–244D)

The 2023 amendments added rules for attributing conduct and fault to a body corporate, including through its board, authorised persons or corporate culture. Conduct of different people can be aggregated, so one person does not need to have both acted and held the required state of mind. Jurisdictions with their own attribution rules may omit these sections.

Common Compliance Approaches

Treat Serious Risks as Priority Risks

Focus resources on hazards that could expose people to death or serious injury, since those engage Categories 1 and 2.

Strengthen Officer Due Diligence

Make sure officers receive incident data, verify controls and can show the steps they took.

Example: Offence Categories in Practice

A regulator investigates a fall from an unguarded mezzanine at a warehouse. Workers had reported the missing guardrail several times. If the business simply failed to fix it, and that failure exposed workers to a risk of death or serious injury, a Category 2 charge may follow. If evidence showed managers knew of the risk and chose to ignore it, the regulator could consider Category 1.

Related regulations: WHS officer due diligence, WHS ban on insurance for penalties, WHS enforceable undertakings.

Note: This summary is based on the model WHS Act published by Safe Work Australia. Model laws only take effect once a jurisdiction enacts them, and each jurisdiction's WHS Act can differ in wording, section numbers and penalties. Victoria has not adopted the model WHS laws and has its own OHS Act. Always check the legislation and regulator guidance that apply where you work.

Frequently Asked Questions

Is industrial manslaughter an offence in every jurisdiction?

Not automatically. The model Act includes a jurisdictional note and model penalties, and each jurisdiction decides whether and how to create the offence.

What separates Category 2 from Category 3?

Category 2 requires the failure to expose an individual to a risk of death or serious injury or illness. Category 3 only requires a failure to comply with a duty.

Why are there no dollar figures here?

Model penalties are indexed every year and each jurisdiction sets its own amounts, so figures go out of date quickly. Check your regulator's current penalty table.