Home And Away: Examining The Extraterritorial Application Of Australian WHS Laws.

A general intention underlying the WHS laws in Australia is that the duties and obligations they impose apply as broadly as possible. Their application to activities within a jurisdiction is reasonably clear. However, whether and to what extent they apply to events occurring outside the jurisdiction, especially outside Australia, depends on a number of factors including the express language of the relevant provision and the existence of a sufficient connection with the jurisdiction. In this review we look at the Australian approach to extraterritorial operation and the duty owed to overseas workers.

The tests for establishing extraterritorial operation

The Commonwealth and each Australian state and territory which enacted the model work health and safety laws (WHS laws) retains discretion to determine the extent to which the laws will operate outside the jurisdiction's geographical boundaries.

Generally, the jurisdictions have chosen not to address this issue within the WHS Laws itself, however, some specific provisions directly or indirectly give or exclude extraterritorial operation.  For example, the meaning of the 'workplace' as defined for the purposes of the WHS laws is very broad and means any place where a worker goes, or is likely to be, while at work, including a vehicle, vessel, aircraft or other mobile structure, any waters and any installation on land, on the bed of any waters or floating on any waters.  On the other hand, as is stated in the Explanatory Memorandum to the Model Work Health and Safety Bill, it is intended that inspection powers and powers of enquiry do not operate with respect to workplaces outside the jurisdiction.

Typically, though, the WHS laws do not explicitly prescribe the rules for extraterritorial operation.  Notwithstanding this, as offences under the WHS laws are criminal offences, the extraterritorially provisions of the Criminal Code Acts for each jurisdiction may be triggered when the required connection (or 'nexus') between the offence and the jurisdiction can be established.

The potential application of the connection tests is not straight forward but in principle, liability for offences under the WHS laws can be extended even where elements of the offence are 'partly' or 'wholly' committed or occur overseas.

A summary of the key extraterritoriality provisions of the Criminal Code in each jurisdiction is set out below:

JURISDICTION	CRIMINAL CODE FRAMEWORK
Commonwealth	A person does not commit an offence under a Commonwealth law unless the conduct constituting the alleged offence occurs: Wholly or partly in Australia or on an Australian aircraft/ship; or Wholly outside Australia and the result of the conduct occurs wholly or partly in Australia or an Australian aircraft/ship; Wholly outside Australia but the offender is an Australian citizen or a body incorporated by or under an Australian law. Source: Section 12F(3) of the Work Health and Safety Act 2011 and section 15.1 of the Criminal Code Act 1995
New South Wales	If all elements necessary to constitute an offence against a law of NSW exist and a geographical nexus exists between NSW and the offence, the person alleged to have committed the offence is guilty of an offence against that law A geographical nexus exists between NSW and an offence if: the offence is committed wholly or partly in NSW (whether or not the offence has any effect in NSW), or the offence is committed wholly outside NSW, but the offence has an effect in NSW Source: Section 10C of the Crimes Act 1900
Queensland	Where an event occurs out of Queensland caused by an act done or omission made in Queensland, and that act or omission would constitute an offence had the event occurred in Queensland, the person who does the act or makes the omission is guilty of an offence of the same kind and is liable to the same punishment as if the event had occurred in Queensland Source: Section 12 of the Criminal Code 1899
South Australia	An offence against a law in South Australia will be committed if all elements necessary to constitute the offence exist and the necessary territorial nexus exists A territorial nexus will exist if a relevant act occurred wholly or partly in South Australia or the alleged offence caused harm or a threat of harm in South Australia. Source: Sections 5E – 5I of the Criminal Law Consolidation Act 1935
Tasmania	A crime against Tasmanian law will be committed if all elements necessary to constitute the crime exist and a territorial nexus exists between Tasmania and at least one element of the crime A territorial nexus exists between Tasmania and an element of a crime if the element is or includes an event occurring in Tasmania; or the element is or includes an event that occurs outside Tasmania while the person alleged to have committed the crime is in the State Source: Section 4 of the Criminal Law (Territorial Application) Act 1995
Northern Territory	An offence against a law is committed if, disregarding any geographical considerations, all the elements of the offence exist and the required geographical nexus exists for the offence A geographical nexus exists between the Territory and an offence if the offence is committed completely or partly in the Territory, whether or not the offence has any effect in the Territory; or the offence is committed completely outside the Territory (whether or not outside Australia) but has an effect in the Territory Source: Sections 43BY and 43CA in Schedule 1 of the Criminal Code Act
Australian Capital Territory	An offence against a law is committed if, disregarding any geographical considerations, all the elements of the offence exist and the required geographical nexus exists for the offence A geographical nexus exists between the Territory and an offence if the offence is committed completely or partly in the Territory, whether or not the offence has any effect in the Territory; or the offence is committed completely outside the Territory (whether or not outside Australia) but has an effect in the Territory Source: Sections 11 and 12B of the Work Health and Safety Act 2011 and section 64 of the Criminal Code 2002
Western Australia	An offence under any law of Western Australia is committed if all elements necessary to constitute the offence exist and at least one of the acts, events, circumstances or state of affairs that make up those elements occurs in Western Australia This applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside Western Australia Source: Section 12 of the Criminal Code Act Compilation Act 1913
Victoria	No extraterritorial express provisions under the Crimes Act 1958 however it is likely that a 'real connection' between the offence and the State would be sufficient

Other potentially relevant extraterritorial rules may be included in 'crimes at sea' laws, Commonwealth maritime laws and acts interpretation laws. These are not addressed in this update.

The duty owed to overseas workers

Under the WHS laws, a Person Conducting a Business of Undertaking (PCBU) is required to take all reasonably practicable steps to ensure that all workers are not exposed to risks to their health and safety.

Relevantly, this duty includes:

• providing and maintaining safe and secure work environments, plant, and systems of work;
• monitoring workplace conditions and the health of workers to prevent illness or injury;
• ensuring that all necessary information, instruction, training and supervision is provided to workers; and
• ensuring that adequate welfare facilities are provided to workers.

In addition to these general aspects of the duty the WHS laws also impose some specific mandatory requirements on a PCBU including the provision of the following:

• adequate first aid equipment and access to trained first aiders;
• emergency plans containing appropriate emergency procedures including in relation to emergency response, evacuation, and the provision of medical treatment and assistance; and
• isolated worker arrangements – which include developing an effective method of communication with workers who are isolated from access to medical assistance.

What is required to fulfil the duty?

A PCBU must take all reasonably practical steps to fulfil these duties. The term 'reasonably practicable' means reasonably able to be done taking into account and weighing up all the matters relevant to the circumstances including:

• the likelihood of the relevant hazards or risk occurring;
• the degree of harm that might result from the hazard or risk;
• what the person knows or ought to know about the hazard or risk and the ways of eliminating or minimising the risk; and
• the availability and suitability of ways to eliminate or minimise the risk.

After assessing the extent of the risk and the ways the risk could be eliminated or minimised, the PCBU must consider whether the cost of the proposed step is grossly disproportionate to the risk, in which case it may not be reasonably practical to implement the proposed step.

What is considered to be reasonably practicable will also be affected by the level of direction or influence the PCBU has over a worker or the workplace. This is particularly relevant when assessing whether the duty to overseas workers has been discharged.  For example, if a PCBU exercises a high degree of control over the work being undertaken or how it is supervised or exercises a high level of management control over the workplace where the work is being done, then the scope of reasonably practical steps that are available is likely to be broader compared to a situation where such control levels are much less.

There are a number of approved model Codes of Practice that provide guidance on fulfilling many of the specific duties identified above including:

• Managing the Work Environment and Facilities Code of Practice; and
• First Aid in the Workplace Code of Practice.

Key actions to manage the risks and fulfil the duty

In order to manage the risks associated with the health and safety of overseas workers, a PCBU should consider doing the following:

• identify the duties applicable to the workers travelling and working overseas;
• identify relevant parties and review consultation arrangements to ensure adequate discussions are held with the workers and other duty holders in relation to the risks involved in performing the work tasks and the control measures in place;
• review existing safety management systems and undertake a gap analysis;
• update policies and procedures as required, especially in relation to hazard identification and control procedures, training procedures, welfare facilities, emergency plans and isolated worker procedures.

Next steps

The extraterritorial operation of the WHS laws has not yet been judicially considered and issues may arise as to whether the necessary jurisdictional nexus can, in fact, be established in circumstances involving offences committed in relation to overseas workers.

However, it is clearly sensible for all PCBUs to understand the nature of the duty owed to overseas workers, adopt a cautionary approach and implement appropriately focused risk assessment and management processes to ensure the health and safety of workers performing work at workplaces overseas.