“It Is Not Against the Law to Injure People”
- Safety Jon
- 10 minutes ago
- 12 min read
The inspector-school lesson that sounded completely wrong, until I understood what safety legislation was actually regulating
During inspector school, one of the instructors made a statement that stopped me cold.
“It is not against the law to injure people.”
I was not coming into regulation without a safety background. I was already an experienced safety professional, which probably made the statement more confusing rather than less, and for a moment I was about as comfortable with the concept as a snake sitting on the wing-tip of an aircraft during take-off.
I say that again.
“It is not against the law to injure people.”
Taken literally across the whole legal system, of course that statement is wrong.
Australian criminal law, negligence law, workers compensation law and other areas of law can all attach consequences to somebody causing injury.
But that was not what the instructor was saying.
He was explaining something fundamental about occupational health and safety law.
The injury is generally not the offence. The breach of the duty is.
Sometimes the relevant offence requires exposure to a risk. Sometimes it requires nothing more than failure to comply with a statutory obligation. In either case, a worker does not necessarily have to bleed, break something or leave in an ambulance before the law has been contravened.
That concept changed the way I understood safety regulation.
This is not just a Victorian principle
My experience as an inspector was under Victoria's Occupational Health and Safety Act 2004, but the principle extends much further than Victoria.
Australia effectively operates two closely related legislative architectures. Victoria retains its own OHS framework, while the Commonwealth, New South Wales, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory and Northern Territory have implemented versions of the model WHS laws.
Those jurisdictions have made local amendments, so the legislation is not identical, but Safe Work Australia notes that the underlying principles are very similar.
Under the model WHS framework, the primary duty of a person conducting a business or undertaking is to ensure health and safety so far as is reasonably practicable. That includes providing and maintaining safe systems of work, safe plant, a safe work environment, appropriate information, instruction, training and supervision, and managing the risks arising from the work.
Victoria expresses those duties differently, including through the employer duties under section 21, but the underlying proposition is recognisable. Employers must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health, including safe systems of work.
This is why the sentence from inspector school works.
Safety legislation is principally preventative legislation. It is intended to operate before somebody is injured.
The injury brought me to the workplace, but it was not what I wrote the notice about
One inspection from my time as a Victorian inspector made this distinction particularly clear.
I attended a workplace following a notifiable incident in which a worker had received a tree branch into the eye socket (youch).
Mind you, the call came through that I was to redirect and attend a wood-chipper incident, so the branch inside the skull was a much better job to arrive to.
It was a serious injury. It was the reason WorkSafe had been notified and it was the reason I entered the workplace.
My inspection report recorded that context, words to the effect that I had entered the workplace in response to a notifiable incident.
Then came the regulatory question.
What provision of the OHS legislation was being contravened?
The answer was not:
“A worker was injured.”
I did not write an improvement notice requiring the employer to stop injuring people.
The improvement notice dealt with the system of work.
The issue I identified was the failure to provide and maintain a safe system of work regarding the selection and use of appropriate eye protection for the task. The protective eyewear needed to be suitable for the foreseeable hazard and capable of providing protection appropriate to the impact risk associated with the work being performed.
That was the contravention I was addressing.
The injury was evidence of what had occurred. It gave context to the inspection and demonstrated, rather brutally, what the hazard was capable of doing.
But the injury was not the thing the improvement notice required the employer to fix.
The unsafe system of work was.
That distinction is not semantics. It goes directly to how an inspector's enforcement power operates.
Under section 111 of the Victorian OHS Act, an inspector can issue an improvement notice where they reasonably believe a person is contravening the Act or regulations, or has contravened them in circumstances where the contravention may continue or be repeated. The notice identifies the legislative provision and the inspector's reasons for believing it has been or may continue to be contravened.
The model WHS legislation uses essentially the same enforcement logic. Section 191 of the current model WHS Act allows an inspector to issue an improvement notice where the inspector reasonably believes a person is contravening a provision, or has contravened a provision in circumstances making it likely the contravention will continue or be repeated. The notice can require the contravention to be remedied or a likely contravention to be prevented.
Notice what is missing from both tests.
There is no requirement that somebody first be injured!!!!
The $40,000 prosecution, nobody fell
A recent Victorian prosecution demonstrates the same point from the other side of the regulator's desk.
On 06 Aug 26, HW Electrical Pty Ltd was convicted and fined $40,000 after a first-year electrical apprentice was exposed to a fall risk while working on the roof of a residential property.
A WorkSafe inspector observed the apprentice working without adequate fall protection, with a potential fall of approximately 2.7 metres.
The apprentice did not fall.
There was no broken leg, spinal injury or ambulance. Nobody had to hit the ground before the employer's duty became relevant.
The prosecution concerned the employer's failure to provide and maintain a working environment that was safe and without risks to health. The offence arose from the exposure and the inadequacy of the controls, not from an injury outcome.
That is exactly the point my instructor was making.
If the apprentice had fallen, the consequences would obviously have been more serious. The injury may have generated additional investigative, compensation and sentencing considerations.
But the breach already existed before gravity finished the job.
The fact that nobody was injured did not convert an uncontrolled 2.7 metre fall risk into an acceptable system of work.
WorkSafe did not need to wait for a casualty before taking enforcement action.
That is what preventative safety legislation is supposed to do.
If the worker had moved their head 50 millimetres, the legal problem would still have existed
This is the part that matters operationally.
Imagine exactly the same task, exactly the same branch, exactly the same inadequate eye protection and exactly the same unsafe system of work.
This time the branch misses the worker's eye.
Nothing else changes.
Would the system suddenly become safe?
Of course not.
Would the employer's duty disappear because the worker happened to turn their head?
No.
Would an inspector be unable to identify the inadequate system of work simply because probability had been kinder on that occasion?
Again, no.
That is why reducing safety performance to injury outcomes is so deeply flawed.
The difference between a notifiable injury and an uncomfortable near miss can sometimes be centimetres, milliseconds or sheer chance.
The duty existed before the branch entered the worker's eye socket.
The risk existed before the injury.
The reasonably practicable controls existed before the injury.
The injury did not create the duty. It merely exposed, in the most unpleasant way possible, the consequences of failing to adequately discharge it.
The model WHS offences make the distinction particularly obvious
Under the current model WHS framework, Category 1 and Category 2 offences are expressly framed around exposure to risk.
A model Category 1 offence involves grossly negligent or reckless conduct that exposes an individual to a risk of death or serious injury or illness. A model Category 2 offence involves failure to comply with a health and safety duty where that failure exposes a person to a risk of death or serious injury or illness. Category 3 is simpler again, it involves failing to comply with the health and safety duty itself.
The legislation does not say:
“Wait until somebody suffers the injury and then determine whether the workplace was safe.”
It asks whether the duty existed, whether it was complied with and, for particular offence categories, whether people were exposed to the relevant level of risk.
Victoria uses different legislative machinery, but the philosophy is substantially the same. Section 32 of the Victorian OHS Act, for example, makes it an offence to recklessly engage in conduct that places, or may place, another person at a workplace in danger of serious injury.
“May place” is doing quite a bit of work there.
No body required.
No ambulance required.
No injury statistics required.
And sometimes the offence is simply the regulatory breach
The distinction becomes even clearer when looking beyond primary health and safety duties.
Australian WHS and OHS legislation contains numerous direct obligations concerning matters such as incident notification, site preservation, licences, authorisations, consultation, inspector directions and compliance with notices.
Under the model WHS framework, failing to notify the regulator of a notifiable incident is itself an offence. So is undertaking work without an authorisation where one is required.
Failing to comply with an improvement notice is another obvious example.
The law does not need to demonstrate that somebody was subsequently injured because the notice was ignored. The legal obligation was to comply with the notice.
That obligation either was or was not met.
This is why safety law cannot sensibly be reduced to injury prevention statistics. It regulates conduct, duties, systems, risks and specific legal obligations.
Injuries are only one part of the picture.
An injury does not automatically prove a breach either
The reverse proposition matters just as much.
Somebody being injured does not automatically prove that a WHS or OHS offence occurred.
One of the very first inspections I attended, as the second inspector, was in response to a notifiable incident involving a serious laceration from an operating grinder. On this particular day, there was an injury requiring sutures; however, by the time we arrived on scene, the Duty Holder had already taken immediate actions to manage the risk of a grinder and a person's thumb coming into contact, and there were no observable risks at the time of inspection.
Injury. No notice.
Also to note: The regulators can cop a bit of flak for attending workplaces, notably as a result of a complaint, and not issuing improvement notices. That's the reason I emphasised in bold "at the time of inspection". Inspectors have to establish sufficient points of proof to determine a contravention. Sometimes there simply isn't enough for a notice or further action.
An injury tells us that harm occurred. It does not answer every question necessary to establish a breach.
The legal analysis still requires consideration of the applicable duty, the hazard and risk, the circumstances of the work, what the duty holder knew or ought reasonably to have known, the available and suitable controls, what was reasonably practicable and what the duty holder actually did.
Under both the model WHS approach and Victoria's OHS framework, reasonably practicable decision-making expressly involves matters such as likelihood, potential severity, knowledge of the hazard and controls, availability and suitability of controls and cost.
A worker can therefore be injured despite a properly designed and implemented system of work.
Another worker can emerge completely uninjured from an indefensible system.
The outcome matters enormously to the person involved.
Legally, however, the outcome and the breach are not the same question.
“Nobody has ever been hurt doing it” is not a defence to bad risk management
This is where one of the most persistent workplace arguments falls apart.
“We've always done it that way.”
“Nobody has ever been injured.”
“It was only a near miss.”
“The forklift didn't actually hit him.”
“He didn't fall.”
“The machine has been like that for twenty years.”
None of those statements establishes that the relevant duty was being met.
If a forklift passes through an uncontrolled pedestrian interface and misses somebody by half a metre, the absence of an injury does not establish that the traffic management arrangements were adequate.
If an employee reaches through an unguarded danger zone and keeps all ten fingers, the machine does not become compliant by virtue of the employee's continued possession of them.
If a load shifts but remains on the trailer, the load restraint system does not become adequate because gravity showed restraint on that particular day.
If somebody works near an unprotected edge and does not fall, the fall risk has not somehow ceased to exist.
The obvious question is not merely, “Did anybody get hurt?”
The better question is, “Was the risk being controlled as the law required?”
That is a much less comfortable question for organisations that have spent years using injury frequency rates as a proxy for whether their safety systems work.
There are important exceptions, because Australian law is never going to let us have a perfectly neat sentence
The inspector-school statement is a useful way of understanding the preventative architecture of safety law, but it is not a universal rule applying to every WHS or OHS offence in every Australian jurisdiction.
The clearest exception is industrial manslaughter, called workplace manslaughter in Victoria.
Those offences are outcome-dependent because a death must occur and the required causal connection must be established. In Victoria, workplace manslaughter requires negligent conduct constituting a breach of an applicable OHS duty, with that breach causing the death of the person to whom the duty was owed.
The model WHS framework also provides for jurisdictions to create an industrial manslaughter offence addressing gross departures from the reasonable standard of care resulting in a work-related fatality. Safe Work Australia's jurisdictional comparison records industrial manslaughter provisions across the Commonwealth and model WHS jurisdictions, although the precise sections, elements and penalties differ.
Western Australia also provides an important qualification to any broad statement that Category 1 offences never require an injury outcome. Safe Work Australia's jurisdictional comparison specifically notes that Western Australia's Category 1 offence requires conduct that caused death or serious injury, whereas the model Category 1 offence is framed around exposure to a risk of death or serious injury.
That is precisely why national safety advice needs to distinguish principles from jurisdiction-specific offence provisions.
The broad principle remains sound.
Australian safety law is overwhelmingly designed to regulate duties and risk before harm occurs.
But anybody advising nationally still needs to open the actual Act applying in the jurisdiction rather than treating the words “model WHS” as a licence to stop reading.
Near misses are regulatory intelligence
Once you understand the distinction, the value of near misses becomes considerably clearer.
A near miss can reveal almost the same system failure as an injury-producing event.
The machine was still unguarded.
The pedestrian separation still failed.
The isolation was still ineffective.
The wrong eye protection was still selected.
The suspended load still passed over people.
The truck still departed before loading activities were complete.
The fact that the final transfer of energy into a human body did not occur does not erase everything that happened before it.
From a prevention perspective, that information is gold.
The system has shown you a pathway to harm without first demanding payment in flesh.
Ignoring it because “nobody was injured” is not pragmatism. It is throwing away a warning because the warning arrived without an ambulance.
Which brings us to zero injuries
This is why I am cautious whenever an organisation presents a clean injury dashboard as evidence of strong safety performance.
Zero lost-time injuries may be factually correct.
Zero medically treated injuries may also be correct.
Neither tells me whether the organisation's critical controls are effective.
I want to know whether the mobile plant separation actually works, whether guarding prevents access to dangerous parts, whether hazardous energy is reliably isolated, whether load restraint is suitable, whether fatigue risks are controlled, whether psychosocial hazards are being addressed through work design and whether supervisors are identifying deteriorating conditions before somebody becomes a statistic.
I want to know what failed.
I want to know what nearly failed.
I want to know what was verified.
I want to know what was found before somebody was hurt.
An organisation can have zero injuries while repeatedly exposing workers to uncontrolled serious risks.
Another organisation can suffer an injury despite having taken substantial and reasonably practicable precautions.
Outcome data matters, but it cannot answer the compliance question by itself.
The sentence eventually made sense
Years after inspector school, I still remember that line because it was deliberately confronting.
“It is not against the law to injure people.”
A lawyer would understandably want several paragraphs of qualifications attached to it, and as soon as we move into industrial manslaughter, Western Australian Category 1 offences or the broader criminal law, those qualifications become necessary.
But as a lesson about the basic architecture of workplace safety regulation, it did its job.
The injury is not generally what an inspector writes an improvement notice against.
The injury may bring the inspector through the gate.
It may trigger notification obligations.
It may provide evidence about the hazard, the consequences and what was occurring.
It may eventually become relevant to prosecution, sentencing, workers compensation, civil proceedings or other legal processes.
But when I stood in that workplace after a worker had taken a tree branch to the eye socket, the improvement notice was not about the wound.
It was about the system of work that allowed the foreseeable exposure to occur.
That is the distinction safety professionals, managers and officers need to understand.
The legislation is designed to act before the next branch connects.
Resource links
WorkSafe Victoria, Electrical company fined $40,000 over apprentice fall risk,
WorkSafe Victoria, Victoria's workplace manslaughter offences,
WorkSafe Victoria, record $3.4 million workplace manslaughter prosecution,
Safe Work Australia, current Category 1, 2 and 3 offence framework and penalties,
WorkSafe Victoria, $40,000 dangerous-goods and improvement-notice prosecution.
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