Personal liability of company officers for corporate occupational health and safety breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW)

Section 26 of the Occupational Health and Safety Act 2000 (NSW) (like similar provisions in other Australian jurisdictions) imposes personal liability for corporate breaches of the Act on officers of the relevant company. This article explores this provision in detail through analysis of cases decided in the NSW Industrial Relations Commission, and other material. It deals with the general background to the provision, the practice of prosecutors, and a number of legal issues arising under the section. These include the meaning of 'due diligence' as a defence, the difficult issues raised by the privilege against self-incrimination when both officers and the company are prosecuted, and sentencing issues such as the appropriate allocation of penalty between the company and the officer. The article concludes by suggesting a number of areas where some 'fine-tuning' of s 26 is desirable to enable it to be effective in encouraging senior managers to pay proper attention to workplace safety.