The personal duty under section 44 of the HSWA — and how to meet it
An officer — a director, partner or chief executive, or anyone with significant influence over the business — has a personal legal duty to exercise due diligence so the business meets its health and safety duties. It is your own duty, it can't be delegated, and you can be prosecuted personally: up to $600,000 and 5 years in prison for the most serious offence.
An officer is a person who occupies a position that lets them exercise significant influence over the management of the business — typically a company director, a partner or general partner, or a chief executive.
The test is influence, not job title. A board member or CEO who decides strategy, budgets and investment is an officer; a middle manager who simply carries out instructions usually is not. The reason the law targets officers comes directly from the Pike River mine disaster, where a lack of board-level oversight of health and safety was a key failing. Each officer holds the duty individually — it is not a shared or joint duty.
Under section 44 of the HSWA, an officer must exercise due diligence — take reasonable, proactive steps — to ensure the business complies with its health and safety duties.
This is a personal duty, separate from the business's own duty of care. It complements that duty; it does not replace it, and an officer does not have to ensure the health and safety of workers directly. Crucially, the duty cannot be delegated, modified or transferred — you must discharge it yourself. You don't have to be a health and safety expert, and you can rely on advice from managers and specialists, but if you do, you must be able to show that relying on them was reasonable.
Section 44(4) sets out six things an officer must take reasonable steps to do.
| # | Take reasonable steps to… |
|---|---|
| 1. Knowledge | Acquire and keep up to date your knowledge of health and safety matters. |
| 2. Understand the business | Understand the operations of the business and the hazards and risks generally involved. |
| 3. Resources & processes | Ensure the business has, and uses, appropriate resources and processes to eliminate or minimise risks. |
| 4. Information | Ensure there are processes to receive, consider and respond to information about incidents, hazards and risks in a timely way. |
| 5. Compliance processes | Ensure the business has, and implements, processes for complying with its duties. |
| 6. Verify | Verify that those resources and processes are actually in place and being used. |
Summarised from section 44(4) of the Health and Safety at Work Act 2015. The final step, verification, is the one officers most often miss — it is not enough to assume the processes exist.
An officer can be convicted of failing the due diligence duty whether or not the business itself is convicted — and the penalties are personal.
| Offence | Officer (individual) |
|---|---|
| Reckless conduct exposing a person to risk of death or serious injury (s47) | Up to $600,000 and/or up to 5 years' prison |
| Failure to comply that exposes a person to risk of death or serious injury (s48) | Up to $300,000 |
| Failure to comply with a health and safety duty (s49) | Up to $100,000 |
These are personal penalties, and it is unlawful to take out insurance or an indemnity to cover an HSWA fine. The duty is no longer untested: the former chief executive of a major New Zealand port became the first officer of a large organisation convicted of failing the due diligence duty — a conviction upheld on appeal — confirming that holding a senior title and “doing a lot” is not the same as exercising due diligence.
Maximum penalties under the Health and Safety at Work Act 2015. This is general information, not legal advice.
Due diligence is shown through what you do and what you can evidence, not through good intentions.
The recurring theme is verification and evidence: you need to be able to point to the reporting you received, the questions you asked, and the checks you made.
Get the reporting and records that make officer due diligence demonstrable. Book a demo and we'll show you how it works — free 30-day trial included.
An officer is someone who occupies a position that lets them exercise significant influence over the management of the business — typically a company director, a partner or general partner, or a chief executive. The test is influence over management, not job title, so middle managers who only carry out instructions are usually not officers.
It is the personal duty under section 44 of the HSWA for an officer to take reasonable, proactive steps to ensure the business meets its health and safety duties. It covers six elements: keeping up to date, understanding the operation and its risks, ensuring resources and processes, ensuring information flows, ensuring compliance processes, and verifying all of it is actually in place.
No. The due diligence duty is personal and cannot be delegated, modified or transferred. You can rely on advice from managers and experts to inform your decisions, but you must be able to show that doing so was reasonable, and the duty itself remains yours.
Yes. An officer can be convicted of failing the due diligence duty whether or not the business is convicted, with personal penalties up to $600,000 and five years' imprisonment for the most serious offence. A New Zealand court has already convicted an officer of a large organisation on this basis.
No. Under the HSWA it is unlawful to take out insurance or an indemnity to cover a fine imposed under the Act. Insurance may cover legal defence costs, but not the penalty itself.
