Due diligence (WHS officer duty)
Due diligence under WHS Act s.27 is the standard officers must meet to ensure their PCBU complies. Six steps from knowledge to verification. The officer prosecution test.
Ask Chalkline about this →Due diligence in the WHS context is the statutory standard an officer of a PCBU must meet under section 27 of the model Work Health and Safety Act to ensure the PCBU complies with its WHS duties. It is both the duty itself (what an officer must do) and the defence in any officer-level prosecution (what an officer can point to if charged). Verified 2026-05-16.
For a residential builder running as a Pty Ltd company, the company directors and officers carry the section 27 due diligence duty. The company itself is the PCBU; the directors are the officers.
The six steps of due diligence under WHS Act s.27:
| # | Step | What an officer actually does |
|---|---|---|
| 1 | Acquire and keep up-to-date knowledge of WHS matters | Stay current on WHS Act amendments, industry hazards, codes of practice |
| 2 | Gain understanding of the nature of the PCBU’s operations and hazards | Walk site, talk to crew, know what the actual hazards are |
| 3 | Ensure the PCBU has available and uses appropriate resources | Budget for PPE, training, plant maintenance |
| 4 | Ensure the PCBU has appropriate processes for receiving and considering information about incidents, hazards, and risks | Incident reporting system, toolbox talks, near-miss capture |
| 5 | Ensure the PCBU has processes for complying with its WHS duties | Safe Work Method Statements (SWMS), site inductions, regulator compliance |
| 6 | Verify that the processes and resources are being used (audit) | Site walks, internal audits, take-up checks |
The list is conjunctive: an officer must do all six, not pick and choose.
Why this matters for builders:
- Officer-level prosecution: WHS regulators can charge directors personally under WHS Act s.27 if an incident occurred and the officer cannot demonstrate due diligence. The penalties at officer-level are separate from and in addition to any PCBU-level penalty under Category 1, 2 or 3 offences.
- Personal liability: officer-level prosecution carries personal financial liability (capped, but substantial) and can include imprisonment for Category 1 offences.
- Insurance: management liability policies typically cover officer-level WHS prosecution defence costs but not the underlying fine (statutory penalties are uninsurable in Australia).
What “ensuring the PCBU has processes” looks like at site level:
- Site induction records for every worker (sub-contractor or employee).
- SWMS for every high-risk activity, kept on site.
- Toolbox talks recorded with sign-off sheets.
- Plant pre-start checks documented.
- Incident register maintained.
- Subcontractor agreement that the subbie’s PCBU duties flow through to their workers.
Common officer-level defence failures:
- “I didn’t know about the hazard”: s.27 requires acquiring knowledge. Ignorance is not a defence.
- “I left it to the site supervisor”: delegation is permitted, but the officer must verify the supervisor has the resources and processes. Unverified delegation is not due diligence.
- “We had a SWMS but no one followed it”: process exists but step 6 (verify) is missing. Common failure mode.
Also known as: WHS officer duty; section 27 duty; officer due-diligence.
Category: WHS.
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Last updated: 2026-05-16. Verified: 2026-05-16. Quarterly review for currency.