8. New penalties

Public hospitals and senior clinicians face a clear and escalating risk of vicarious liability under contemporary WHS and discrimination laws. This is not limited to direct wrongdoing. It arises because senior clinicians, department heads and other clinical leaders are often classified as “officers” with a legal duty to ensure safe systems of work. 

That duty extends to preventing both physical and psychological harm, including excessive workloads, unsafe hours, and unlawful behaviours such as bullying, sexual harassment, discrimination, racism, and violence. When these risks are foreseeable and persistent, failure to act is no longer viewed as passive omission - it is a breach of duty.

Senior clinicians often know the reality on the ground but fail to report WHS incidents - and instead, resign or disengage. As a result, those at senior levels may falsely conclude that risks are low or adequately controlled. However, the absence of reports is not a defence where there is credible, repeated external evidence of harm.

Regulators such as the Australian Human Rights Commission and Safe Work Australia now expect organisations to proactively identify psychosocial hazards rather than wait for formal complaints or incidents. Failure to do so may expose both organisations and individuals to investigation and penalties.

“Positive duty” laws reinforce this shift. Senior clinicians must take reasonable and proportionate steps to prevent harm before it occurs - including harm caused by employees, contractors, visiting consultants, patients, and visitors. This makes education essential. 

Expected standards of behaviour, zero tolerance for unlawful conduct, and clear consequences must be actively communicated across the entire clinical environment. Without this, health-related services cannot demonstrate compliance.

The key point is this: good clinicians with strong reputations can still be investigated and held liable - not for what they personally did, but for what they knew and failed to act on. Silence, inaction, or cultural attitudes such as “it was worse in my day” are no longer defensible. “I didn’t do it” is not a defence if you knew and allowed it to continue.

The path forward is prevention. Clinicians must close the gap between what is known and what is reported by implementing safe, confidential - preferably independent - speak-up mechanisms, recognising that internal systems may not always be trusted. 

Attrition and silence should be treated as warning signs. Most importantly, leaders must actively educate all staff and stakeholders and advocate for system-level solutions to reduce unsafe workloads and psychosocial hazards.

The legal and cultural landscape has shifted - from awareness to accountability. Vicarious liability now attaches not only to actions, but also to inaction in the face of known risk. The opportunity is clear: act early, demonstrate compliance, and prevent both harm and penalties.

Category 1 to 3 offences and other risks

Under Australia’s strengthened WHS laws, the line has shifted decisively. It is no longer a question of if healthcare organisations, colleges and clinical training programs will face investigation for workplace harm - but when.

Importantly, investigations and penalties can often be prevented through compliance with groundbreaking new WHS laws. The 2025 Code of Practice for the healthcare and social assistance sector outlines how these laws apply directly to employers, directors, officers, practice owners, and clinicians.

This is not an administrative exercise. It is not simply “a human resources’ role”. It is a core clinical leadership responsibility. In addition to Category 1 to 3 offences, failure to meet these duties now carries serious consequences:

• Damage to reputation, credentialling and leadership roles.
• Impact on performance reviews, promotion, and contract renewal.
• Risks to clinical or medical registration and training accreditation. and
• Personal legal liability, including significant personal fines and potential imprisonment for serious breaches.

Liability is no longer confined to physical safety. It now extends to psychosocial harm, workplace culture, governance, and financial integrity.

Here is a brief summary of what category 1 to 3 mean:

• Category 1 is a Reckless breach of a WHS duty exposing a person to risk of death or serious injury or illness. Recklessness includes knowing - or clearly ought to have known - of a serious risk and disregarding it.

• Category 2 is a Serious breach without recklessness, where failure to comply with WHS duties exposes workers to serious risk, including systemic psychosocial hazards such as bullying, unsafe workloads and fatigue. 

• Category 3 is a Failure to comply with WHS duties, even where serious harm has not yet occurred - still signalling non-compliance.

The maximum penalty for category 3 is about 2.3 million dollars for individuals and nearly 12 million dollars for organisations. 

Additional general offences and civil penalties also apply under WHS legislation.

Significant financial penalties have already been imposed across Australian health services. These cases reinforce a clear message: prevention is not optional, and non-compliance carries significant personal and organisational consequences.

Criminal charges and imprisonment 

Criminal liability - including imprisonment - can apply to individuals, including senior clinicians in leadership roles. These risks are real, but importantly they are also preventable through early recognition of hazards, active governance, and visible compliance.

Criminal charges may arise in the following situations:

• WHS Category 1 offences defined as Reckless conduct where a person with a WHS duty exposes workers to the risk of death, serious injury or illness. Recklessness includes knowing - or clearly ought to have known - of a serious risk and disregarding it.

• Corporations Act breaches include Dishonest or reckless governance failures, including harassment, dismissal or retaliation against whistleblowers, or misleading regulators and investigators. In a system with well-documented speak-up failure, this is a significant and emerging risk for senior clinicians and boards.

• Industrial manslaughter related to Deaths linked to workplace conditions - including work-related accidents, violence, or suicide associated with workplace mental injury - may result in criminal prosecution. Maximum penalties include fines of up to $20,441,000 for organisations and up to 20 years’ imprisonment for individuals, including directors and clinical officers. These risks are heightened by persistent unsafe conditions in healthcare, including excessive job demands, violence, and high levels of suicidality among health workers.

• Wage theft, fraud, and financial misconduct Offences may attract penalties of up to $991,320 for organisations and $198,264 for individuals, as well as up to 10 years’ imprisonment. Recent class actions by junior clinicians have resulted in substantial repayments and fines, yet systemic underpayment continues in some settings. With increasing use of digital and AI tools to compare pay, hours worked and Enterprise bargaining agreement entitlements, discrepancies are more easily identified. Where senior clinicians or leaders are aware of systemic underpayment and fail to act, liability may arise and conduct may be interpreted as deliberate.

Significant penalties have already been imposed across Australian healthcare. 

The direction is clear: regulators are increasingly willing to pursue serious breaches, particularly where risks were known but not addressed.

How SafeDr can help prevent penalties

SafeDr helps by translating complex WHS laws into practical, usable guidance. It helps clinicians understand their duties, recognise risks early, act safely, access confidential support, and speak up without fear by:

• Knowing and applying WHS laws in real clinical situations
• Recognising and acting on psychosocial and physical hazards early.
• Understanding legal duties and human rights at work.
• Accessing confidential support without fear of mandatory reporting.
• Speaking up safely - protecting both patients and careers. and
• Advocating for health system change rather than relying solely on individual resilience.

Cultural change will not come from policy alone. It requires informed, collective action by clinical leaders - embedding WHS literacy, implementing evidence-based systems, enabling safe anonymous speak-up pathways, and advocating for better working conditions.

The shift is from awareness to accountability. Complexity and system pressure are no longer defences. There are now enforceable duties to identify psychosocial and physical hazards, prevent harm, and create safe systems of work.

We should not wait for a regulator investigation, public scandal, medicolegal case, or another preventable death. Acting now is a professional, legal, and moral duty.

Please consider sharing SafeDr widely with your colleagues to help raise this awareness in the health system. and to protect yourself, your co-workers and your workplace from major investigations and new penalties.