WHS Act Category 1, 2 and 3 offences
Model WHS Act ss 31-33: Category 1 (reckless conduct), Category 2 (risk of death/serious injury), Category 3 (general failure). Penalties indexed annually.
Ask Chalkline about this →The model Work Health and Safety Act (adopted by NSW, Qld, SA, Tas, ACT, NT, WA and the Commonwealth; Victoria runs a separate OHS Act 2004 regime) sets three escalating offence categories for breach of a health and safety duty, in sections 31, 32 and 33 of the Act (verified 2026-05-15 against Safe Work Australia).
| Category | Section | Threshold | Maximum penalty (body corporate, model, 1 July 2025) |
|---|---|---|---|
| Category 1 | s.31 | Reckless conduct that exposes a person to risk of death or serious injury or illness | $11.839 million plus up to 5 years imprisonment for an individual |
| Category 2 | s.32 | Failure to comply with a duty that exposes a person to risk of death or serious injury or illness | $2.373 million |
| Category 3 | s.33 | Failure to comply with a duty, without the risk-of-death-or-serious-injury element | $789,000 (indicative; check current Safe Work Australia table for live indexed figure) |
Officer amounts and individual-PCBU amounts are lower tiers under each category. Penalties are indexed annually on 1 July under amendments commenced 1 July 2024 (verified 2026-05-15 against Comcare WHS penalty indexation notice), so the table above is a point-in-time figure. Always check the Safe Work Australia current penalty table before quoting a figure for a contract, brief or insurance schedule.
Why the category choice matters commercially. The regulator’s decision to prosecute under s.31 rather than s.32 changes the order-of-magnitude exposure: Category 1 is a top-decile fine on the public record, Category 2 an order of magnitude lower, Category 3 lower again. Category 1 also carries the only personal imprisonment limb (5 years for an individual). For a builder facing a serious incident, the early conversation with the safety regulator (e.g. SafeWork NSW, WorkSafe Qld) often turns on what evidence sets the category, and that conversation drives the insurer’s reserves and the legal cost.
State variation. Each model-adopting state adopts the WHS Act with that state’s own indexation. The Commonwealth (Comcare) indexes separately and sits noticeably higher than the state figures. Victoria’s separate OHS Act regime uses a different offence structure entirely and is not part of this three-category framework.
Also known as: Cat 1 / Cat 2 / Cat 3 offences; section 31/32/33 offences; reckless conduct (Category 1); breach of duty (Category 2 / 3).
Category: WHS.
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Last updated: 2026-05-15. Verified: 2026-05-15. Quarterly review for currency.