Continuing the trend that emerged in 2024, the year 2025 has seen a number of significant judgments issued by the Courts regarding the application and interpretation of key duties in the Health and Safety at Work Act 2015 (HSW Act). 

These have included: 

• the penalty decision in Maritime New Zealand v Gibson [2025] NZDC 5440 which followed the first successful conviction of an officer of a large corporate under the HSW Act;
• Whakaari Management Limited v WorkSafe New Zealand [2025] NZHC 288 in which the High Court considered the duty of a PCBU who manages or controls a workplace under the HSW Act, s 37; and
• Safe Business Solutions Limited v WorkSafe New Zealand [2025] NZHC 979 in which the High Court resolved conflicting authorities regarding the primary duty of care in the HSW Act, s 32.

We understand that Gibson is the only case of these that has been appealed. In Gibson, the appeal of the conviction and sentence was heard in the High Court in June and a judgment is yet to be issued.

No material increase in officer prosecutions

While the Gibson appeal decision will be of significant interest to health and safety regulators, and those in and supporting the governance and executive management communities, we do not expect to see any increase in officer prosecutions to result. This is because:

• health and safety regulators have been slow to prosecute officers since the HSW Act came into force, with prior prosecutions focussing on small, closely held companies and similar organisations where those in governance roles were much closer to (if not personally involved in) the work;
• the circumstances that led to the prosecution of Mr Gibson were relatively unique. Port of Auckland operated in a high-risk industry, with a challenging health and safety record, including a number of fatalities and serious injuries during Mr Gibson’s tenure; and
• as noted below, the main health and safety regulator, WorkSafe New Zealand, has been directed to change its focus from being an enforcement agency to one focussed on supporting PCBUs to achieve compliance with their obligations, with prosecution reserved for of clear negligence and causation.

A significant change in regulatory settings leading to a reduction in prosecutions generally

The factors most likely to shape 2026 are the Minister’s expectations of WorkSafe and regulatory reform.

As has been well publicised, the Minister of Workplace Relations and Safety issued a Letter of Expectations to the Chair of WorkSafe in June 2025. The letter directs WorkSafe to shift its focus towards being a regulator that supports duty-holders to manage their risks through early engagement with duty holders and by providing a greater amount of guidance to them about how to discharge their duties.

Additionally, the Minister has signalled a change in WorkSafe’s appropriation so the Government can more closely control its activities and performance through funding. This includes a specific appropriation category relating to enforcement activities. It will be of interest to note how much of WorkSafe’s appropriation is directed towards such activities and how much is directed towards engagement activities in Budget 2026.

The Government introduced a Bill to amend the HSW Act on 10 February 2026.

The Bill contains a number of proposed amendments to the HSW Act which, when enacted, will likely result in fewer prosecutions being taken. This is because the Bill proposes:

• sharpening the HSW Act’s primary purpose to focus on critical risks. Most enforcement action is already focussed on incidents that happen in connection with critical risks, but a narrower regulatory focus on those risks that may cause serious injury, illness or death should give PCBUs confidence that this is where their primary effort should be directed;
• limiting the circumstances in which incidents must be notified to the regulator by introducing language that qualifies what amounts to a notifiable injury or illness. We expect this will result in fewer health and safety incidents coming to the attention of the regulator and being subject to any investigatory action (and, therefore, prosecution or other enforcement); and
• enabling both the regulator, worker representatives, employer representatives and industry/sector representatives to develop approved codes of practice (ACoP) which will provide greater certainty as to what ‘so far as is reasonably practicable’ means for particular industries. We anticipate this will result in an increase in the number of ACoPs being published. ACoPs will result in a greater number of ‘safe harbours’ being available to PCBUs to achieve compliance (although it may also be easier for regulators to establish non-compliance when something goes wrong and the benchmark in an ACoP has not been met, and no equivalent level of protection for workers in in place).

Overall, we anticipate the change in expectations, appropriation and regulatory settings is likely (as intended) to result in a reduction in the number of prosecutions commenced by health and safety regulators generally in the coming year. We started to see the signs late in 2025, with a number of investigations concluding in recent months with no further action being taken by WorkSafe in circumstances where we would, in the past, have expected to have been served with charging documents.