NSW WHS Update: Changes to Codes of Practice from 1 July 2026
From 1 July 2026, important changes to the Work Health and Safety Act 2011 (NSW) will affect how approved Codes of Practice are applied and enforced. There has been considerable discussion and in some cases misinformation, about what these changes mean for businesses. The key point is that while Codes of Practice are not becoming legislation, compliance expectations have significantly strengthened.
What is changing?
A new Section 26A of the Work Health and Safety Act 2011 (NSW) requires a Person Conducting a Business or Undertaking (PCBU) to either:
- Comply with the applicable approved Code of Practice, or
- Demonstrate that the identified risk is being managed to a standard that is at least equivalent to, or higher than, the Code of Practice.
This requirement applies to all approved NSW Codes of Practice (currently around 30).
Are Codes of Practice now law?
In short, no. Approved Codes of Practice remain guidance documents and are not Acts or Regulations. Businesses cannot be prosecuted "under" a Code of Practice. However, from 1 July 2026, complying with an applicable Code, or demonstrating an equally or more effective alternative control approach, becomes a legal duty under the WHS Act. Failure to meet this duty may constitute a breach of the Act and can be enforced through the existing WHS offence provisions.
Does an incident need to occur?
No. One of the most significant changes is that regulators no longer need to rely on an incident, injury or illness to establish non-compliance. Where a relevant Code of Practice applies, failing to follow it without being able to demonstrate an equivalent or higher standard of risk management may itself constitute a breach of the WHS Act.
Is NSW the first state to introduce this approach?
No. These amendments bring New South Wales into closer alignment with Queensland, which has applied a similar legislative framework since 2018.
What should NSW businesses do?
Organisations should review the approved Codes of Practice relevant to their operations and:
- Identify which Codes apply to their activities and risks.
- Assess current systems, procedures and controls against the applicable Codes.
- Update policies, procedures, Safe Work Method Statements (SWMS), training and risk assessments where required.
- Where an alternative approach is adopted, ensure there is documented evidence demonstrating that it provides an equivalent or higher level of health and safety protection.
For many businesses, undertaking a structured gap assessment against the relevant Codes of Practice will provide confidence that their WHS management systems remain compliant with the new enforcement requirements.
Reach out to Paradigm Safety Consulting today for a gap analysis of relevant codes.