What does NSW WHS Act section 26A change about Codes of Practice?
Short answer
It changes the legal status of approved Codes of Practice. Before 1 July 2026 they are evidence of compliance. After 1 July 2026 they become enforceable duties in their own right — and a PCBU that departs from the Code must demonstrate an equivalent or higher safety outcome and document that rebuttal.
Pre-s.26A, the model under the harmonised WHS Acts treated approved Codes of Practice as evidence of how to comply. A regulator or court could look at a Code and say "this is one way to comply", but the Code itself was not the duty.
Section 26A flips that on its head in New South Wales from 1 July 2026:
- The Code becomes the default standard of compliance. - A PCBU can still deviate from the Code, but must: 1. Achieve an equivalent or higher safety outcome, and 2. Document the rebuttal — show the analysis, the alternative controls and the evidence that the alternative is at least as effective.
That has three practical consequences:
- Documents prepared for NSW sites need to engage with Code clauses, not just list a SWA Code of Practice in the references.
- A SWMS or risk assessment that ignores a relevant Code is potentially non-compliant, even if every individual control is reasonable.
- Rebuttal evidence becomes a key audit artefact — you should be able to point to your decision file when you didn't follow a Code.
RAE IQ's Code Alignment surface (feature #52) is built around this — each controlled document has a "Code alignment panel" with status (suggested → draft → asserted) per applicable Code, plus deviation justification and equivalent-or-higher rebuttal fields.