Are You an Officer? Understanding Due Diligence Under WHS Law

Jessica Urquhart
6 days ago
6 min read

Most people understand that a business has work health and safety duties. Fewer people realise that certain individuals inside that business hold a separate duty, in their own name, that cannot be handed to anybody else.

Those individuals are called officers and the duty they hold is known as officer due diligence under WHS law.

On 13 August 2026, SafeWork NSW released an online self-assessment tool and a quick reference guide to help officers understand and test their due diligence. It is a genuinely useful resource and I would encourage organisations to use it. The difficulty is that a lot of people who are officers do not know they are officers, and a number of people who are not officers assume that they are.

So before we get anywhere near due diligence, it is worth starting with a much more basic question.

What Is an Officer?

The WHS Act does not write its own definition from scratch. It borrows the meaning of "officer" from section 9 of the Corporations Act 2001 (Cth).

Under that definition, an officer includes:

Directors and company secretaries. If you sit on the board or hold the secretary role, you are an officer.
A person who makes, or participates in making, decisions that affect the whole or a substantial part of the business. This is the limb that catches the most people by surprise. It is not about who signs off on safety. It is about who shapes the direction of the business.
A person who has the capacity to significantly affect the financial standing of the business. Budgets, resourcing, capital expenditure, contracts.
A person in accordance with whose instructions or wishes the directors are accustomed to act. The person who is not formally on the board, but whose view carries the day anyway.

The WHS Act also captures officers of public authorities, partnerships and unincorporated associations, so this is not limited to companies.

It Is About the Role, Not the Job Title

Having "Manager" or "Director" in your title does not automatically make you an officer. Not having it does not save you from being one. The test looks at what you actually do and what influence you actually hold.

In practice, officers commonly include directors, chief executives, general managers, and senior executives who sit on the leadership group that sets budgets, resourcing and strategy. In smaller businesses, the officer is very often the owner, and sometimes the owner's spouse who handles the finances.

People who are usually not officers include workers, supervisors and site managers who implement decisions rather than make substantial business ones, and WHS advisers and coordinators who advise the business without directing it. But "usually" is doing real work in that sentence. A WHS Manager who sits on the executive and controls the safety budget may well be an officer. The title is not the answer. The role is.

If you cannot say with confidence who your officers are, that is worth resolving before anything else in this article becomes useful.

Two Situations That Come Up Regularly in Our Region

Elected councillors. An elected member of a local authority does not, when acting in that capacity, hold the officer duty under section 27. That exemption is limited to the elected capacity. Council general managers and senior executives are a different matter entirely, and they are officers.
Volunteer board and committee members. A volunteer who is an officer does hold the due diligence duty but cannot be prosecuted for failing to comply with it. That exemption exists so that people are not discouraged from serving. It is not a reason to disengage. A regulator can still issue an improvement notice requiring compliance with the duty, and a volunteer can still be prosecuted for failing to meet their duties as a worker.

For the many incorporated associations, sporting clubs, community organisations and not-for-profits across the Orana region, that distinction is worth understanding properly rather than assuming it means the duty does not apply.

What the Officer Duty Actually Requires

Section 27 of the WHS Act requires an officer to exercise due diligence to ensure that the PCBU complies with its WHS duties.

Three features of that duty are often missed:

It is proactive. The duty is to take positive steps, not to respond once something goes wrong.
It is personal and cannot be delegated. You can delegate tasks. You cannot delegate the duty. Appointing a competent safety manager does not discharge it.
It stands on its own. An officer can be prosecuted for a failure to exercise due diligence whether or not the business itself has been prosecuted or convicted.

I would add a fourth point that surprises people. In NSW, since June 2020, it is an offence to take out insurance, or receive the benefit of an indemnity, covering a monetary penalty imposed under the WHS Act. Defence and inquiry costs can still be insured. The penalty itself cannot. Officers who assume there is a policy sitting behind them should confirm exactly what it covers.

The Six Elements of Due Diligence

Section 27 sets out what due diligence means. Each element has a question attached to it that an officer should be able to answer.

Acquire and keep up to date knowledge of work health and safety matters. When did you last do anything to update your WHS knowledge, and can you point to it?
Understand the nature of the operations and the hazards and risks associated with those operations. Do you know what could realistically kill or seriously injure someone in your business, or only what has already hurt someone?
Ensure the business has, and uses, appropriate resources and processes to eliminate or minimise risks. Has resourcing been assessed against the risk, or against what was left in the budget?
Ensure the business has appropriate processes for receiving and considering information about incidents, hazards and risks, and responding to that information in a timely way. What reaches you, how quickly, and what happens to it once it does?
Ensure the business has, and implements, processes for complying with its duties. Not whether the procedures exist. Whether they are being used.
Verify the provision and use of those resources and processes. This is the element organisations most often fall down on. Verification means checking for yourself, not accepting a report that says everything is fine.

That last element is worth sitting with. A monthly safety report showing zero incidents is information. It is not verification. Verification is going and looking, asking workers directly, testing whether a critical control was in place on the day, and reviewing whether what the system says should happen is what is actually happening on site.

What Is at Stake

Officers face the same categories of offence as other duty holders, with maximum penalties for individuals running into the hundreds of thousands of dollars, and into the millions with terms of imprisonment for the most serious category. Penalty amounts are indexed annually, so it is worth checking the current figures rather than relying on a number you saw a few years ago.

NSW also has an industrial manslaughter offence, as does every other Australian jurisdiction except Tasmania.

Maximum penalties are just that. Courts set penalties on the facts and they are usually well below the maximum. The more relevant point for most officers is not the size of the fine. It is that the duty is personal, and that a court will ask what you did, not what your safety team did.

Why This Matters More Right Now

Three things have changed the environment for NSW officers this year. From 1 July 2026, section 26A means approved Codes of Practice are the benchmark against which compliance is measured. An officer relying on an alternative approach needs to be able to show it achieves an equivalent or higher standard.

SafeWork NSW has identified falls from heights, psychosocial risks, hazardous substances, and mobile plant, vehicles and fixed machinery as its priority areas for 2026–27.

SafeWork NSW has also substantially increased inspector numbers, with a dedicated focus on psychosocial risk. Officers who have treated psychosocial hazards as a human resources matter rather than a WHS risk should reconsider that position.

Where to Start

Identify who your officers actually are, using the role test rather than the org chart.
Tell them. A surprising number of officers have never been formally advised that they hold the duty.
Have each officer complete the SafeWork NSW self-assessment and read the quick reference guide.
Bring the results to the board or executive and discuss them as a group rather than individually.
Assign actions for the gaps, particularly anywhere the evidence relies on being told rather than on verifying.
Set a schedule for how officers will keep their knowledge current, receive incident and risk information, and verify controls, and record it.

Due diligence is not a document. It is a pattern of behaviour that has to be visible in hindsight. If someone asks in twelve months what you did as an officer, the answer needs to be more than that you employed good people and trusted them.

Do You Need Assistance?

Orana Skills Centre works with boards, executives and business owners to understand and meet their officer duties. We can assist with:

Officer due diligence briefings for boards, executive teams and management groups
Identifying who holds officer duties within your structure
Reviewing your WHS management system against relevant Codes of Practice
Verification and assurance activities, so officers have evidence rather than assurances
Critical control identification and verification
Incident investigation and ICAM training, so the information reaching officers is worth acting on