NSW Bill to Protect Police from OHS Liability in Armed Offender Situations

Monday 19 March 2018 @ 2.01 p.m. | Legal Research

The NSW government has passed the Work Health and Safety Amendment Bill 2018 (NSW) (‘the Bill’) on 14 March 2018, which is currently awaiting assent. The Bill is for the purpose of ensuring that if a police officer fails to comply with duties stipulated in the Work Health and Safety Act 2011 (NSW) ('the Principal Act') in the course of responding to an armed offender incident, it will not constitute an offence by the officer under the Principal Act.

Main Legislative Amendments

The Bill proposes to amend the Principal Act in order to provide that:

  • members of the NSW Police Force who are involved in responding to active armed offender incidents do not commit offences under the principal Act for failing to comply with health and safety duties in connection with responding to such incidents;
  • an armed offender incident is regarded as such, if a person armed with an offensive weapon is attacking or is attempting to attack another person.

In her second reading speech, Ms Sarah Mitchell, Minister for Early Childhood Education, Minister for Aboriginal Affairs and Assistant Minster for Education, highlighted that the Bill addressed specific concerns raised by NSW Police Force. She stated:

“The bill addresses concerns raised by the NSW Police Force. These concerns relate to how the Act may apply in circumstances where a police officer needs to prioritise public safety over compliance with work health and safety duties when responding to an active armed offender incident. The bill addresses this by providing an exemption from certain offence provisions under the Act for NSW Police officers in such circumstances. This will ensure that police officers can prioritise public safety and focus on saving lives in responding to active armed offender incidents without fear of potential prosecution under that Act.”

She further highlighted that it was unreasonable to expect police officers involved in an active offender situation to face liability under the Principal Act, stating:

“It is unreasonable to expect police officers responding to such incidents to face potential criminal liability under the Work Health and Safety Act, because they have prioritised public safety over the duties imposed by that Act. It is also unreasonable for police officers within the chain of command to risk personal liability under the Work Health and Safety Act when meeting legitimate community and government expectations by prioritising public safety during these incidents.”

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Sources:

Work Health and Safety Amendment Bill 2018 (NSW), second reading speech and explanatory memorandum, available on TimeBase's LawOne service.

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