Commonwealth Consolidated Regulations

OCCUPATIONAL HEALTH AND SAFETY (SAFETY ARRANGEMENTS) REGULATIONS 1991 - REG 35

         (1)   An employer commits an offence if:

                (a)    the employer engages in conduct, or allows another person to engage in conduct, that results in the alteration or disturbance of the site of an accident or dangerous occurrence arising out of an undertaking by the employer; and

               (b)    at the time of the conduct:

                          (i)    an investigation of the accident or dangerous occurrence had not been completed; and

                         (ii)    the investigator had not given permission for the alteration or disturbance of the site.

Penalty:   10 penalty units.

         (2)   It is a defence to a prosecution for an offence against subregulation (1) if the employer had a reasonable excuse.

Note    A defendant bears an evidential burden in relation to the matter mentioned in subregulation (2) (see section 13.3 of the Criminal Code ).

         (3)   It is a defence to a prosecution for an offence against subregulation (1) if, at the time of the conduct, the employer had given a notice of the accident or dangerous occurrence to Comcare in accordance with section 68 of the Act and:

                (a)    Comcare had given notice that investigation of the accident or dangerous occurrence was not required; or

               (b)    an investigator had not entered the workplace where the site of the accident or dangerous occurrence is located in response to the notice within 1 working day of the employer giving notice to Comcare.

Note    A defendant bears an evidential burden in relation to the matters mentioned in subregulation (3) (see section 13.3 of the Criminal Code ).

         (4)   Without limiting subregulation (2), an employer has a reasonable excuse if the employer engages in, or allows another person to engage in, the conduct that results in the alteration or disturbance of the site of an accident or dangerous occurrence in the course of:

                (a)    the rescue, or attempted rescue, of an injured person; or

               (b)    the retrieval, or attempted retrieval, of the body of a deceased person; or

                (c)    the protection, or attempted protection, of the health or safety of a person; or

               (d)    the prevention, or attempted prevention, of damage being done to a substance or thing;

if the alteration or disturbance is unavoidable.