On 31st March 2026, the High Court of New Zealand dismissed the appeal of Mr Tony Gibson, former Chief Executive of Ports of Auckland Limited (POAL). The Court upheld his conviction for failing to exercise officer due diligence as an officer under sections 44 and 48(1) of the Health and Safety at Work Act 2015 (NZ). The decision is the first time an officer of a large and complex business has been convicted under that section, and it is now the most authoritative recent statement of what the officer duty likely requires.
What Gibson v Maritime New Zealand means for Australian officers and the questions every director, CEO and senior executive should now be able to answer
Although the case is New Zealand law, the practical implications for Australian officers remain highly relevant. Section 44 of New Zealand’s HSWA is closely modelled on section 27 of the Model Work Health and Safety Act, which applies (in materially identical form) in the Commonwealth, New South Wales, Queensland, Tasmania, South Australia, Western Australia, the Australian Capital Territory and the Northern Territory. The two tests are functionally aligned. New Zealand decisions on the officer duty are persuasive in Australian courts. Even in Victoria, where officer liability is likely structured differently under section 144 of the Occupational Health and Safety Act 2004 (Vic) and the workplace manslaughter offence at section 39G (within Part 5A, sections 39A to 39G) of that Act, the Gibson reasoning sets the best-practice benchmark against which regulators will assess officer conduct.
For officers and boards, the central message is sharp and sometimes uncomfortable. A genuine commitment to work safety, a long list of safety initiatives, and a competent in-house safety team are not, by themselves, enough. The duty is not discharged by being a good leader. It is discharged by taking active, verifiable steps to ensure that the systems an officer relies on are actually working and by knowing how the officer knows that.
The facts in short
On 30 August 2020, Mr Pala’amo Kalati, a stevedore working as a “lasher”, was fatally crushed in a terrible accident at the Port of Auckland when a suspended shipping container fell from a crane onto him as he was securing containers aboard the MV Constantinos. POAL operated a three-container-width exclusion zone rule (around 7.3 metres) around operating cranes. The rule, however, was inconsistently documented in training materials and was inconsistently observed in practice, particularly on the night shift, where supervisory presence was lower.
POAL itself pleaded guilty to two charges under the HSWA. It was fined $561,000 and ordered to pay $90,000 in costs in 2023.
Maritime New Zealand then charged Mr Gibson personally as an officer of POAL. Following a seven-week trial in the District Court of Auckland, Judge Bonnar KC found Mr Gibson guilty of one charge of failing to take reasonable steps to ensure that there was a clearly documented and effectively implemented exclusion zone, and failing to verify the provision and use of the relevant resources and processes. Mr Gibson was sentenced to a fine of $130,000 with $60,000 in costs, a total of $190,000.
Mr Gibson appealed against both conviction and sentence. The High Court, per Gault J, dismissed both appeals. The reasoning runs to 258 paragraphs, and on every key principle the trial Judge’s analysis was either upheld or refined in ways that leave the outcome and the standard in place.
The NZ High Court’s reasoning
The duty is the officer’s, not the company’s
The first principle from Gibson is that the officer duty is not derivative of the company’s primary duty. The officer is not a proxy for the PCBU. The two duties must be assessed separately. As Justice Gault put it, “it is important not to treat a senior officer as a proxy for the PCBU by conflating the PCBU’s failure to ensure compliance with the separate reasonable steps assessment required for an officer under s 44” (at paragraph [88]). It follows, and the legislation confirms, that an officer can be convicted in circumstances where the PCBU is not.
“Reasonable” does not mean perfect — but nor does it mean average
The most quotable passage in the judgment, and the one most likely to find its way into Australian s 27 jurisprudence over the next twelve months, is the Court’s clarification of the standard:
“I accept again that reasonable does not mean perfect. MNZ did not suggest that every omission is a breach of the due diligence duty. But nor does ‘reasonable’ necessarily mean the average of what others would do. Common practice may or may not involve sufficient reasonable steps.” (at paragraph [158])
This cuts both ways. Officers cannot defend themselves by saying their conduct matched the industry. Equally, regulators cannot demand a level of perfection that hindsight makes look obvious. The court will assess the steps the officer in fact took, against the steps a reasonable officer in the same circumstances should have taken — informed by, but not constrained by, what comparable officers were doing at the time.
Reliance on subordinates is permitted | uncritical reliance is not
The Court endorsed the proposition, taken from the New South Wales decision in SafeWork NSW v Doble [2024] NSWDC 58 and from the Sarginson v Civil Aviation Authority [2020] NZHC 3199 line, that officers of large organisations cannot be expected to know everything occurring in the business, and that delegation is permissible. But it added a critical qualification:
“[A]n officer cannot comply with his or her due diligence obligations by simply relying upon those with specific responsibilities for health and safety in the management chain below them or by assuming, without proper enquiry, that the organisation’s systems are adequately addressing health and safety risks.” (at paragraph [99], citing Sarginson at [127])
The operative words are “simply” and “without proper enquiry”. Where an officer has reason to know that systems are not operating as intended — for example, because a previous incident has revealed a monitoring weakness, because Board reporting itself discloses under-reporting, or because critical-risk analyses are overdue — reliance on the safety function alone will not discharge the duty. The officer must challenge the assurances they are given.
Being hands-on is not a higher standard
Adopting the reasoning of Moore J in Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288 at [226], the Court was emphatic that hands-on engagement with health and safety should not be punished. “It would be entirely antithetical to the purposes of HSWA,” Moore J had said, “if being responsible was a path to liability and being irresponsible (or electing not to be responsible) was an escape from it” (cited at Gibson paragraph [111]). For officers who take a genuine interest in safety, this is reassurance. The standard is not perfection, and good faith engagement is not used against the officer at trial.
“Work as done” | the most operational shift in the case
The factual finding that drove the conviction is the most useful one for consulting practice. Mr Gibson was found to have been on notice — particularly following a 2018 fatality at the same port — that POAL had ongoing difficulties in monitoring “work as done” rather than “work as imagined”. Board reports before the 2020 fatality contained data on incidents and non-compliance, but the data was acknowledged on the face of the reporting to be incomplete because of under-reporting. The Court held that the CEO was responsible, in a supervisory sense, for ensuring that effective reporting lines were in place and that the Board received recommendations from those with operational expertise. Where lead indicators of control effectiveness are missing — where the business cannot show whether its critical-risk controls are actually in use on a night shift — the duty is not discharged.
What ‘officer due diligence’ for Australian board level roles
The strongest message from the case is that the harmonised duty under section 27 of the Model WHS Act, and the New Zealand duty under section 44 of the HSWA, are now plainly aligned on three operational points.
First, verification is mandatory, not optional. The list of reasonable steps in section 27(5) of the Model WHS Act includes verification of the provision and use of resources and processes. Gibson gives that subsection real weight. Officers who can describe the safety management system but cannot describe how they verify its operation and who is looking, what they are measuring, what counts as a lead indicator of control effectiveness are exposed. Board safety reports built around lag indicators (lost-time injury frequency rate, claims data) do not, by themselves, likely satisfy the duty.
Second, peer benchmarking is informative but not protective. Where consultants like Safetysure benchmark a client’s WHS performance against the industry in a compliance improvement report or maturity assessment, the benchmark is useful context. But on its own is likely not a defence. Where peer practice is itself deficient and the Court has now signalled that it may well be officers must take further reasonable steps. The reach of this point is significant: in areas where regulatory expectations are evolving faster than industry practice, reliance on “what everyone is doing” carries increasing risk.
Third, prior incidents put officers on notice. The 2018 fatality at POAL, although not the subject of the prosecution, was central to the Court’s conclusion that Mr Gibson “ought to have been aware” of the monitoring problem. It is common, in WHS audit practice, to see prior incident reports closed out with limited verification of whether the corrective actions actually took hold. Gibson underscores that an officer cannot leave that loop open.
Fourth, directors face a Board-level duty, not just an executive duty. The Gibson prosecution targeted a CEO and the Court’s reasoning focused on executive control. But the same s 27 / s 44 duty applies to non-executive directors. For directors, the practical implication is that Board safety reporting must be calibrated to surface “work as done” issues not just lag indicators of injury rates. Where Board papers admit on their face that data is under-reported, directors are on notice and must act.
Directors who accept Board reporting at face value, without testing whether it reflects the operational reality, are potentially exposed in the same way Mr Gibson was. Failure to apply officer due diligence can have significant outcomes.
One contextual note for Australian readers. New Zealand has no equivalent of Australia’s industrial manslaughter or workplace manslaughter offences. Had a similar fatality occurred in an Australian jurisdiction, prosecutors may have had additional charging options open to them potentially making Gibson-equivalent facts a more serious matter in Australia than in New Zealand.
For Victorian officers, the framework is different. Section 144 of the OHS Act 2004 (Vic) provides for officer liability where a body-corporate contravention is attributable to an officer’s failure to take reasonable care, rather than a free-standing positive due diligence duty. Workplace manslaughter sits at section 39G (within Part 5A) and is triggered by negligent conduct breaching an applicable OHS duty that causes death. But the Gibson principles particularly the expectation of verification and the inadequacy of paper-based systems will still inform WorkSafe Victoria’s assessment of officer conduct in any post-incident investigation. They are the practical benchmark, even where they are not the legal test.
Six questions every officer should be able to answer
These six questions are Safetysure’s distillation of the Gibson reasoning and the Safe Work Australia Interpretive Guideline on section 27 (March 2020), which Justice Gault expressly cited. They are not a statutory test, but they capture what regulators and courts likely now look for in practice. Officers should be able to answer each in writing, with current evidence, on demand.
Critical risks. Have I identified the critical risks of the business? Do I personally understand how each is controlled. Not in the abstract, but in this organisation, on this site, with this workforce?
Controls. Are the controls documented and communicated? Are they known to be in use on every shift? How do I know they are in use?
Monitoring. Does the business measure compliance with the critical-risk controls? Are the lead indicators reliable? Where reporting itself discloses under-reporting, what am I doing about it?
Recommendations. Where audit, internal review, prior incident investigation or expert advice has identified improvements, have those improvements been progressed in a reasonable time? What is overdue, and why?
Verification. Do I personally test the assurances I rely on? When the safety adviser tells me a system is working, on what evidence is the assertion based?
Information. Does the safety information I receive go beyond lag indicators? Does it tell me about control effectiveness, not just incident rates?
An officer who answers each of these affirmatively, with documented evidence, has gone a long way to demonstrating that they have taken reasonable steps. An officer who cannot has — at minimum — a problem to address.
Closing
Gibson v Maritime New Zealand does not raise the standard of officer due diligence. It clarifies what the standard has been, in both Australia and New Zealand, since the harmonised model was introduced. The Court was at pains to say that reasonable does not mean perfect, that good faith engagement is not punished, and that hindsight is recognised and adjusted for. The clarification, instead, is that the duty bites where it should bite — on critical risks, on verification, and on the alignment between work as imagined and work as done.
For officers and boards, the work is well within the reach of any well-governed organisation. It involves embedding verification into the safety system rather than bolting it on; replacing assurance with evidence; and asking the right questions of the safety function. None of this requires officers to become technical safety experts. It requires them to behave, in respect of safety, with the same rigour they already apply to financial performance, regulatory compliance or strategic risk.
Safetysure works with directors, executives and senior leaders on exactly this transition. Our Compliance Improvement Reports and related advisory work are designed to test whether the officer duty is being discharged in practice and to give officers the documented evidence they need to answer the six questions above. If your organisation has not reviewed its officer duty position since Doble (in 2024) and now Gibson (in 2026), we would welcome the opportunity to discuss what the case means for your organisation and where any gaps may sit.
For further information on this case or to discuss how it affects your role, please contact your Safetysure local consultant.
This briefing has been prepared from the primary judgment in Gibson v Maritime New Zealand [2026] NZHC 813 (Gault J, 31 March 2026) by Safetysure Health & Safety Consultants. It is intended as a general overview for officers, directors and senior executives, and is not a substitute for legal advice on any specific matter. Safetysure is not a law firm and does not provide legal advice. Where the application of the officer duty to your circumstances is in doubt, legal advice should be sought.