New Zealand's Health & Safety Amendment Bill — Leading the Way

In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss New Zealand's Health and Safety at Work Amendment Bill and explore why New Zealand is leading the in workplace health and safety.

They break down the key changes in the amendment, including a sharper focus on critical risk and what this means for both large organisations and small PCBUs. 

The conversation touches on the real-world prosecutions that appear to have motivated the reform, including the White Island volcanic eruption and the conviction of the former CEO of the Port of Auckland.

Richard and Gaye also reflect on how many organisations are getting too consumed by lower-level compliance activity while the critical risks get deprioritised or ignored entirely.

If you’d like us to cover a specific topic or have any feedback we’d love to hear from you. Email admin@r2a.com.au.

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events. 

Gaye is also founder of Australian women’s safety workwear company Apto PPE https://www.aptoppe.com.au.

Transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers, Richard Robinson and Gaye Francis discuss the latest amendments to the New Zealand Health and Safety Act and how they're leading the way.

(00:16):

We hope you enjoyed the chat. If you do, please support our work by giving us a rating and subscribing on your favorite podcast platform. And if you'd like more information on R2A, our newsletter and resources, or have any feedback or topic ideas, head to the website www.r2a.com.au.

Gaye Francis (00:36):

Hi Richard. Welcome to our podcast session.

Richard Robinson (00:38):

Good morning, Gaye. Good to be back.

Gaye Francis (00:40):

It is good to be back. It's been a crazy couple of weeks.

Richard Robinson (00:44):

I keep reading that as you get older, you're meant to get happier.

Gaye Francis (00:48):

Okay.

Richard Robinson (00:49):

I'm supposed to be ecstatic at my stage of life.

Gaye Francis (00:51):

I was going to make that joke. I thought I'd better not. <laughs>

(00:55):

Today's topic, we're going to talk about the Health and Safety at Work Amendment Bill out of New Zealand and some interesting developments that it's recommending and looking like implementing, but they're really leading the way in this health and safety space at the moment. So I think, as you always do, can you give us a brief summary of what the amendment bill looks like? And then we'll discuss maybe some of the implications of it.

Richard Robinson (01:24):

I better just explain the reason why we came across this because we're doing some work in New Zealand and we're briefing relevant legal counsel. And so we're just sort of checking what the status of various things were because we're fairly familiar with it all. Having done quite a lot of work in different places in New Zealand. But we came across this and we found this particularly interesting because we had noticed the Kiwis have been particularly active in prosecuting people and successfully prosecuting them. In particular, you might recall the volcanic eruption.

Gaye Francis (01:51):

White Island.

Richard Robinson (01:52):

23 people got killed. In the end, seven companies got convicted.

Gaye Francis (01:56):

Correct. The individuals walked away, but the companies were convicted.

Richard Robinson (02:00):

But the one that sort of motivated everybody was in 2024, the former CEO of the Port of Auckland got convicted for a heavy lift crane dropped something on someone and killed someone. And their former CEO got convicted. And that was despite the fact that that CEO, from all the readings I'd done, was actually pretty strong on safety and tried to get a lot of things done. Now, we're not entirely sure. I'm sort of though we're listening to the NZ Parliament to work out why they've decided to introduce this amendment. But what we thought we'd do is go through what we understood to be the key bits of it. It's obviously available online, although it does note that, and we printed this off about a week or so ago (early March 2026), and it does say it will be replaced in March. So I guess this thing's ongoing fairly fast.

(02:44):

But basically it does a number of things. The overall objective, as they sort of point out, is to make the thing more efficient because I think what they've noticed is there've been a lot of wheel spinning and an awful lot of people spending an awful lot of time on lesser matters that they shouldn't be doing. And so when you're sort of looking at the summary of this thing.

(03:01):

Now there's a clarification of regulators as the first point. It's their CAA, Civil Aviation Authority, and who we've had a bit of dealing with.

Gaye Francis (03:08):

Yes, we have.

Richard Robinson (03:09):

And their maritime regulator, whom we've had a little bit of dealing with. Their roles are more precisely defined.

Gaye Francis (03:15):

Ok.

Richard Robinson (03:16):

And much crisper. But then the next and most important thing is they say is focus on critical risk, which is something we've hammered.

Gaye Francis (03:23):

For a very long time.

Richard Robinson (03:24):

Very long time. And they define critical risk. I mean, there's a whole lot of definitions at the back about amusement rides and things like that and crane movements in particular, which presumably...

Gaye Francis (03:35):

Will be an output from the Auckland incident.

Richard Robinson (03:37):

I did notice that WorkSafe Australia has just got a call for action on-

Gaye Francis (03:42):

Crane movements.

Richard Robinson (03:43):

At ports.

Gaye Francis (03:43):

Right.

Richard Robinson (03:44):

So it's a popular subject. But the other definition of critical risk is basically, I mean, they've got better words to cover it, but it's kill or maim. If it can lead to a death, then you're meant to have it under control. That sort of led onto a little supplementary point is that they also then say that they define a small PCBU and a small PCBU is 20 people or less.

Gaye Francis (04:11):

Right.

Richard Robinson (04:11):

Small PCBUs only have to focus on the critical ones.

Gaye Francis (04:15):

Okay. So any issues that can kill a maim, the small PCBU has to just do that. For larger organisations, they have to prioritise the critical ones, but still have processes, governance processes in place to manage the other.

Richard Robinson (04:29):

Yes, but it's not an offense to failure to prioritise because presumably you're going to still do them all.

Gaye Francis (04:34):

Yes.

Richard Robinson (04:35):

Although our frustration is that people get lost in the detail and after a while, just ignore the big rare one, which is the one they really want you to focus on.

Gaye Francis (04:43):

And I think the question still comes up, especially in the consulting work that we do. It's really that question of credibility. When something is so rare, we often get the pushback of, do we really have to worry about this because it's so rare that it's not going to happen. So that likelihood argument still creeps in even when they're determining critical.

Richard Robinson (05:08):

Oh, well, this amendment's quite clear, if it can kill or maim and it's possible, then you've got to do something about it as far as I can tell. It does say that they clarify overlaps with the legislation, which wasn't totally clear to me. What they're saying is that the Work Health and Safety Act is not meant to be a backstop to public health.

Gaye Francis (05:32):

Okay.

Richard Robinson (05:33):

But that doesn't mean ... I mean, for example, one of the examples they sort of give is if in order to get to a recreational area, somebody has to walk over private land like farmland or something like that. The mere factor walking over the farmland doesn't create a liability for the farmer. But obviously if the farmer runs the poor character over with a tractor, that's the consequence of work. So you still have to consider those sorts of things. So they're being very clear about what you're trying to do there.

(05:57):

The other thing they do is they clarify the duty of a director. In our work health and safety legislation, it says, demonstrated due diligence includes these six points." Remember, between the penultimate and the final they changed one word. Although all the lawyers keep telling us, if it's not in the Act, then including something else would be hard to do, but we're not lawyers, so you can check that one. But when they define it, they actually then define it and I'll sort of go (through).

Gaye Francis (06:28):

This is in the (NZ) amendment bill.

Richard Robinson (06:30):

This is in the amendment bill.

Gaye Francis (06:31):

Yes.

Richard Robinson (06:31):

They basically say that ... Well, there's two parts. The first part was that I'm not quite sure why they thought necessary to do this, but if you had a duty as a worker and an officer, your duty of an officer took precedence.

Gaye Francis (06:44):

That seems logical.

Richard Robinson (06:46):

One would've thought so, but I guess if it's not clearly stated...

Gaye Francis (06:49):

It can be argued.

Richard Robinson (06:51):

And then in the section on due diligence, they now say due diligence means taking reasonable steps to understand the nature and operations of the PCBU, the hazard and risk associated with operations and work health and safety matters as it generally applies to that business. And then in terms of controlling these things to ensure that the PCBU has available to use and uses appropriate resources and processes, has appropriate process for receiving considering information, has and implements process for complying with any duty and part C is your favourite observation to verify the provision of these resources and processes.

Gaye Francis (07:28):

I think that's a really interesting one because we often get asked the question about doing these things and what controls go in place, but then what's the quality assurance around it to make sure what you say you're going to do, (a), is actually done, but also is maintained to a level that ensures that effectiveness of that control. And I think when we talk to boards and things like that, they sort of, "Oh, it's done and dusted," and you move on to the next thing because they've got a long list of things to do, but they've got to keep asking the question, "Are all of these things remaining in place?" And that comes down to that governance process that you've got. And all of these things are interlinked. And they're still being done in silos, I feel, in organisations.

Richard Robinson (08:17):

I think you're right. And it always fascinates us. You see a lot of risk registers and a failed control is a line in a risk register rather the quality thing. Although I do think, I mean, this is the case, and I suspect that's why it's in the Act. If you've got a control and somebody's dead because the control failed, all hell breaks loose.

Gaye Francis (08:36):

It has to.

Richard Robinson (08:37):

And that's why I think they're specifically listed in the legislation. What they tend to do is put in things, something bad happens, and then what they tend to do is put in what they felt ought to have been in place to make sure that they ought not to have happened.

Gaye Francis (08:51):

Yeah, right.

Richard Robinson (08:51):

But that's why it's a sort of moral philosophy thing. And it's a bit strange because you're trying to make a moral imperative. I mean, I think when you talk to anybody about it, it's self evident. The failed control's got to ... Somebody's got to suffer.

Gaye Francis (09:06):

But I think there's two interesting parts to that because when we go and talk to boards sometimes, it's sort of like, are they getting the right information about the critical issues? And then I think the second step is what are the critical controls in place to manage those issues and what's your quality assurance process and procedure around that to ensure that they're being sustained? So even though the board might not have a detailed understanding of those, they have to have the tools and be able to ask the questions to make sure that that happens. So it's that verification step of both the critical issues, the controls, and what makes us confident that they're being sustained and implemented properly.

Richard Robinson (09:49):

Yep. The last thing of significance, I think from the point of view if anybody's interested in these things, is really strengthening approved codes of practice. And they're basically saying that certain approved codes of practice, if you have implemented that code of practice, you have demonstrated due diligence.

Gaye Francis (10:06):

So that's for critical risks as well?

Richard Robinson (10:08):

Yeah. Well, I think the argument was, I mean, they've got a couple of examples here, but they're looking at obviously creating more of these approved ones to try and ... It's particularly for the smaller PCBUs. I can see how it's very, very hard for a small PCBU.

Gaye Francis (10:24):

To start from scratch. Absolutely. We've talked about the roles of standards and codes of practice and things like that. They're still lagging indicators. And in a world where technology is changing so fast, I think that could also be a little bit ... tricky.

Richard Robinson (10:42):

I think it's going to be a few test cases before they resolve that one, because if an approved code of practice has an obvious control or misses an obvious control that ought to been in place, for the life of me can't see, because the legislation still takes priorities. But again, if the legislation says-

Gaye Francis (10:57):

You rely on that code. I better guess this is our go back line, isn't it? You'd have to check that one with your lawyers.

Richard Robinson (11:04):

Every time.

Gaye Francis (11:06):

But we would probably just caution that as a black and white rule because codes of practice and standards are lagging indicators and often don't have the latest up-to-date thinking of what potential controls could be.

Richard Robinson (11:24):

That's correct. And the technology, the way the technology is changing out here...

Gaye Francis (11:28):

So fast.

Richard Robinson (11:29):

I mean, we're getting completely frustrated with Apple and Microsoft. This business is becoming an appendage to an AI in some form rather than having our own computing platform. It's just driving us crackers, but that's a common problem for everyone.

Gaye Francis (11:43):

So the New Zealanders really appear to be leading the way in this particular area.

Richard Robinson (11:49):

And we were reflecting on why might that be the case.

(11:52):

And you see, the Kiwis are a little different because they've got their Acts & Compensation commission, which is no fault. And that means something bad happens, then they've tried to patch the place up without blaming somebody particularly for it. Whereas we in Australia have always been pretty keen on common law actions, right? Now, our WHS legislation is basically a statutory statement of the common law duty of care. And obviously, I assume that if you're politicians and things like that or parliamentarian, you've seen a lot of people get hurt, and the common law didn't seem to be sufficient. You then elevate that to statute law to try and make those provisions or that philosophical and ethical understanding-

Gaye Francis (12:29):

More robust, I guess.

Richard Robinson (12:31):

Now, the Kiwis attended all their workplace relation ministers council and kept an eye on what we Australians are up to, left it for a couple of years, but then implemented their legislation in 2015. And I've got a funny suspicion, but having implemented it, some bad things happened and immediately started prosecuting.

Gaye Francis (12:48):

Successfully prosecuting as well.

Richard Robinson (12:51):

Successful prosecuting and convicting people. And they looked at that and said, hmm, we weren't expecting that robust a result. I mean, I think that's saying that if an Act exists and a prosecutor says, well, as far as I can tell, if I prosecute and I have a successful prosecution, I believe that's the duty of the prosecutor, the public prosecutor in those circumstances. So if it's a parliament you're not happy with that, then you've got to sort of tweak the Act to make it more precise so that you only prosecute the ones you want to prosecute, you don't prosecute people, which in a way that isn't helpful to society as a whole, because they're trying to stop that.

Gaye Francis (13:27):

The one they have been successful in is the White Island, I mean, they have been kill or maim incidents.

Richard Robinson (13:32):

Oh, that's certainly the case, but they're trying to work out, they sort of backed off from prosecuting individuals, but they still prosecuted the businesses.

Gaye Francis (13:40):

Organisations. I think it's also, there's probably been industry complaints or frustrations, I guess, that so much effort is put into the WHS space, work health and safety space, and you often don't see the results of it. You're putting all of this effort in...

Richard Robinson (14:01):

It's not being efficient.

Gaye Francis (14:04):

It's not being efficient. And you're right, you're getting lost in the detail and spinning the wheels for things that don't necessarily give you the biggest bang for buck.

Richard Robinson (14:13):

Bureaucratic administrative structures that are causing mayhem for the people to actually get on and do things.

Gaye Francis (14:17):

So this sort of one gives the tool. Well, it gives two things, I think. It gives people a tool to get on with the job, but it also gives those credible, critical issues that are often discounted by the likelihood so much that no one ever gets on with it. Even by, they don't even get to the stage of looking at what controls should be put in place.

Richard Robinson (14:38):

It gets too hard.

Gaye Francis (14:39):

It gets put in the too hard basket. And I think the little bit that we've read on the Auckland CEO was, yes, he was doing things around health and safety and hadn't quite got to this particular issue, although he knew about it.

Richard Robinson (14:54):

He knew about it, but I don't think he'd got on with it fast enough.

Gaye Francis (14:57):

So often, and that's what I was sort of trying to say. Some of these lesser things are taking so much time and spinning the wheels so much that you don't get onto those things that need to be prioritised and focused on, even though their potential, well, they could be rare.

Richard Robinson (15:13):

Yeah, that's right. But I think the other thing that's sort of puzzling me a little bit, I mean, they're trying to clarify and regulators and things like that, but in the end, the point is that stop bad things happening, and in the end, the duty is to demonstrate SFAIRP, that hasn't changed.

Gaye Francis (15:27):

Yes.

Richard Robinson (15:27):

And the question of who's going to prosecute whom after the event and in what court and what jurisdiction. At one level it doesn't matter. It's all about control. It's not about ownership.

Gaye Francis (15:36):

And controlling before the fact.

Richard Robinson (15:38):

Correct. And I think that's why there's some other confusions going on still around the place, which regrettably, I suspect it will take a court case to determine.

Gaye Francis (15:46):

Yeah. So interesting space at the moment in New Zealand. It'll be interesting to see if Australia goes down that path as well.

Richard Robinson (15:54):

Well, the way it seems to work, the four big jurisdictions have to get together and the lesser jurisdictions will follow along, but that's a complicated process.

Gaye Francis (16:02):

It is. It is and not one to solve today.

Richard Robinson (16:04):

No.

Gaye Francis (16:04):

So thanks for joining us today, Richard, and we'll see you next time.

Richard Robinson (16:08):

Thanks, Gaye.