Terms of Reference – Independent Review of SafeWork NSW
By the Hon. Robert McDougall KC
On 25 October 2022 the NSW Government announced the appointment of the Hon. Robert McDougall KC (the Independent Reviewer) to carry out an Independent Review of SafeWork NSW (the Review).
The Review will examine SafeWork NSW’s performance of its regulatory functions (including educational functions) under the Work Health and Safety Act 2011 (NSW).
The scope of the Review is to inquire into, report on and where thought desirable make recommendations as to:
- The performance and effectiveness of SafeWork NSW’s compliance and enforcement functions. This part of the Review will consider complaints, inspections, investigations, and prosecutions, and will include consideration of SafeWork’s Triaging and Investigation Decision Making Panel processes.
- The performance and effectiveness of SafeWork NSW’s educational functions.
- The governance and culture of SafeWork NSW, including complaints as to alleged unlawful or undesirable conduct in the workplace.
- Appropriate measures to ensure that workers and their representatives (including Health & Safety Representatives), and the families of injured and deceased workers, have a genuine voice in the complaints, investigation, and enforcement processes.
The Review will be an inquisitorial rather than adversarial process. While specific cases and detailed issues raised can be considered as part of the Review, the Review will not make determinations relating to specific work health and safety cases. The Review’s focus will be on identifying deficiencies and recommendations at the organisational level.
The Review will be carried out on the assumption of complete cooperation and full disclosure from the parties involved. The Review activities will be determined by the Independent Reviewer and are expected to include the following:
- Interviews with current and former SafeWork NSW staff.
- Interviews with representatives from other stakeholders (including, but not necessarily limited to, the Family and Injured Workers Support Group, industry and union representatives).
- Review of documents from SafeWork NSW, relevant Parliamentary documents and reviews, media articles and other relevant sources.
- Review of relevant enabling legislation including the Work Health and Safety Act 2011 (NSW).
- Seeking and considering feedback obtained through a targeted stakeholder consultation and open public consultation (including a public call for submissions based on the Terms of Reference).
An interim Report will be provided to the responsible Minister by 31 May 2023, with a final Report to be provided by 29 November 2023. Flexibility is needed in the timeline for the Review, to ensure proper consideration of all relevant matters and to allow for the possibility that new issues come to light that need to be examined.
The reports will be publicly released after they are provided to the Government. All material provided to the Review will also be made publicly available unless it was specifically provided in confidence.
Retired Supreme Court judge to carry out review of SafeWork NSW – Media Release (25 October 2022)