Officer due diligence duty: keep the focus on the particulars
The High Court of New Zealand has dismissed an appeal against the conviction of Anthony Gibson, former CEO of Ports of Auckland Limited (POAL), for failing to exercise officer due diligence under New Zealand’s Health and Safety at Work Act 2015 (NZ Act).
The officer due diligence duty under the NZ Act is materially the same as the duty on an officer under the model-based laws that apply in most Australian jurisdictions.
This decision is significant as it is the first time an officer of a large and complex PCBU has been convicted of failing to exercise due diligence under work health and safety laws. While not binding in Australia, the judgment is likely to be persuasive for Australian courts and regulators.
Key takeaways
The court confirmed that:
- due diligence is assessed objectively and in context, having regard to the nature of the business and the officer’s role;
- liability depends on the specific failures alleged by the prosecution, rather than an officer’s overall performance;
- strong governance structures and delegation do not reduce an individual officer’s responsibility;
- officers of large organisations are expected to focus on systems, oversight, verification and assurance;
- known deficiencies and incomplete risk controls require active intervention; and
- verification processes must test ‘work as done’, not simply rely on reported data.
Background
POAL previously, as a person conducting a business or undertaking (PCBU), pleaded guilty following the death of a worker in August 2020 for failing to take reasonably practicable steps to ensure the worker’s safety.
Mr Gibson was separately charged and convicted of failing to exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances. Particularly it was found that he failed:
to take reasonable steps to ensure that POAL had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, including by having:
clearly documented, effectively implemented, and appropriate exclusion zones around operating cranes;
clearly documented, effectively implemented, and appropriate processes for ensuring coordination between lashers and crane-operators;
to take reasonable steps to verify the provision and use of the resources and processes.
On 31 March 2026, Gault J in the NZ High Court dismissed Mr Gibson’s appeal.
The court’s observations on officer due diligence
This case is the first time an officer of a large and complex PCBU has been convicted of failing to exercise due diligence under work health and safety laws. Although not binding on Australian courts, the findings and observations of the NZ High Court hold persuasive value.
Some of the key observations made by the Court are set out below:
The due diligence duty imposes an objective, context-specific standard requiring an assessment of what a reasonable officer would do in the same circumstances, having regard to the nature of the business and the officer’s role.
The inquiry by the court is structured: identify circumstances, determine reasonable steps, and assess failure. Due diligence is concerned with taking reasonable steps, not guaranteeing compliance.
Liability turns on specific pleaded conduct, not overall performance by the officer. Particularly:
the pleaded particulars define and constrain the inquiry;
the prosecution must prove that the officer failed to take the specific reasonable steps alleged, not merely that the system was imperfect;
general evidence of good systems or conduct does not negate liability if particularised omissions are established; and
industry practice is not determinative of the statutory standard.
Corporate structure, delegation, and governance frameworks are central contextual factors and:
the existence of a Board, senior executives, and layered management does not dilute individual officer responsibility; instead, responsibility may be shared across roles;
for a CEO or senior officer, the role focuses on systems, oversight, and assurance rather than operational detail; and
large organisational scale increases the importance of verification, monitoring, and system effectiveness.
Complexity and competing priorities do not excuse failure where risks are significant. A reasonable officer would ensure critical risk processes were completed and functioning.
Knowledge of deficiencies triggers a heightened obligation to act. Incremental or incomplete improvements are insufficient where material gaps remain.
Verification systems must actually reveal ‘work as done’, not merely collect data.
This decision provides useful guidance on key elements of the due diligence duty owed by officers of large PCBUs under Australian work health and safety laws.
Officers should look to conduct a comprehensive and thorough examination of their role and responsibilities within the full context of the structure and operations of the PCBU to reduce the risk of due diligence compliance gaps.
If you would like to discuss your obligations under the due diligence duty, please contact our expert team.
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