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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Work Health and Safety
Bill 2011
Queensland
Work Health and Safety Bill 2011
Contents
Page
Part 1 Preliminary
Division 1 Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 2 Object
3 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 3 Interpretation
Subdivision 1 Definitions
4 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Subdivision 2 Other important terms
5 Meaning of person conducting a business or undertaking . . . . . . 30
6 Meaning of supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7 Meaning of worker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8 Meaning of workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9 Section number not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 4 Application of Act
10 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11 Section number not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12 Scope: application of Act to particular matters . . . . . . . . . . . . . . . 33
Part 2 Health and safety duties
Division 1 Introductory
Subdivision 1 Principles that apply to duties
13 Principles that apply to duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
14 Duties not transferrable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15 Person may have more than 1 duty . . . . . . . . . . . . . . . . . . . . . . . 34
16 More than 1 person can have a duty . . . . . . . . . . . . . . . . . . . . . . 34
17 Management of risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Work Health and Safety Bill 2011
Contents
Subdivision 2 What is reasonably practicable
18 What is reasonably practicable in ensuring health and safety . . . 35
Division 2 Primary duty of care
19 Primary duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Division 3 Further duties of persons conducting businesses or
undertakings
20 Duty of persons conducting businesses or undertakings
involving management or control of workplaces. . . . . . . . . . . . . . 38
21 Duty of persons conducting businesses or undertakings
involving management or control of fixtures, fittings or plant at
workplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
22 Duties of persons conducting businesses or undertakings that
design plant, substances or structures. . . . . . . . . . . . . . . . . . . . . 39
23 Duties of persons conducting businesses or undertakings that
manufacture plant, substances or structures . . . . . . . . . . . . . . . . 41
24 Duties of persons conducting businesses or undertakings that
import plant, substances or structures . . . . . . . . . . . . . . . . . . . . . 42
25 Duties of persons conducting businesses or undertakings that
supply plant, substances or structures . . . . . . . . . . . . . . . . . . . . . 44
26 Duty of persons conducting businesses or undertakings that
install, construct or commission plant or structures . . . . . . . . . . . 46
Division 4 Duty of officers, workers and other persons
27 Duty of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
28 Duties of workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
29 Duties of other persons at the workplace . . . . . . . . . . . . . . . . . . . 49
Division 5 Offences and penalties
30 Health and safety duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
31 Reckless conduct--category 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
32 Failure to comply with health and safety duty--category 2 . . . . . 51
33 Failure to comply with health and safety duty--category 3 . . . . . 51
33A Duty prevails over particular excuses . . . . . . . . . . . . . . . . . . . . . . 52
34 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Part 3 Incident notification
35 What is a notifiable incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
36 What is a serious injury or illness . . . . . . . . . . . . . . . . . . . . . . . . . 53
37 What is a dangerous incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
38 Duty to notify of notifiable incidents . . . . . . . . . . . . . . . . . . . . . . . 54
39 Duty to preserve incident sites . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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Work Health and Safety Bill 2011
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Part 4 Authorisations
40 Meaning of authorised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
41 Requirements for authorisation of workplaces . . . . . . . . . . . . . . . 56
42 Requirements for authorisation of plant or substance . . . . . . . . . 57
43 Requirements for authorisation of work . . . . . . . . . . . . . . . . . . . . 57
44 Requirements for prescribed qualifications or experience . . . . . . 58
45 Requirement to comply with conditions of authorisation . . . . . . . 58
Part 5 Consultation, representation and participation
Division 1 Consultation, cooperation and coordination between duty
holders
46 Duty to consult with other duty holders . . . . . . . . . . . . . . . . . . . . 59
Division 2 Consultation with workers
47 Duty to consult workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
48 Nature of consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
49 When consultation is required . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 3 Health and safety representatives
Subdivision 1 Request for election of health and safety representatives
50 Request for election of health and safety representative . . . . . . . 61
Subdivision 2 Determination of work groups
51 Determination of work groups . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
52 Negotiations for agreement for work group . . . . . . . . . . . . . . . . . 62
53 Notice to workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
54 Failure of negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Subdivision 3 Multiple-business work groups
55 Determination of work groups of multiple businesses . . . . . . . . . 64
56 Negotiation of agreement for work groups of multiple
businesses ............................... 64
57 Notice to workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
58 Withdrawal from negotiations or agreement involving multiple
businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
59 Effect of subdivision on other arrangements . . . . . . . . . . . . . . . . 66
Subdivision 4 Election of health and safety representatives
60 Eligibility to be elected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
61 Procedure for election of health and safety representatives. . . . . 67
62 Eligibility to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
63 When election not required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
64 Term of office of health and safety representative . . . . . . . . . . . . 68
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65 Disqualification of health and safety representatives . . . . . . . . . . 68
66 Immunity of health and safety representatives . . . . . . . . . . . . . . . 69
67 Deputy health and safety representatives . . . . . . . . . . . . . . . . . . 69
Subdivision 4A Disqualification process
67A Definition for subdivision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
67B Application of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
67C Decision on application may be given on the papers or at a
hearing ....................................... 70
67D Applications decided on the papers . . . . . . . . . . . . . . . . . . . . . . . 71
67E Applications decided at a hearing . . . . . . . . . . . . . . . . . . . . . . . . 72
67F Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Subdivision 5 Powers and functions of health and safety representatives
68 Powers and functions of health and safety representatives . . . . . 73
69 Powers and functions generally limited to the particular work
group ...................................... 75
Subdivision 6 Obligations of person conducting business or undertaking
to health and safety representatives
70 General obligations of person conducting business or
undertaking .................................. 75
71 Exceptions from obligations under s 70(1) . . . . . . . . . . . . . . . . . . 77
72 Obligation to train health and safety representatives . . . . . . . . . . 78
73 Obligation to share costs if multiple businesses or undertakings . 80
74 List of health and safety representatives . . . . . . . . . . . . . . . . . . . 80
Division 4 Health and safety committees
75 Health and safety committees . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
76 Constitution of committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
77 Functions of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
78 Meetings of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
79 Duties of person conducting business or undertaking . . . . . . . . . 83
Division 5 Issue resolution
80 Parties to an issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
81 Resolution of health and safety issues . . . . . . . . . . . . . . . . . . . . . 84
82 Referral of issue to regulator for resolution by inspector . . . . . . . 85
Division 6 Right to cease or direct cessation of unsafe work
83 Definition of cease work under this division . . . . . . . . . . . . . . . . . 85
84 Right of worker to cease unsafe work . . . . . . . . . . . . . . . . . . . . . 86
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85 Health and safety representative may direct that unsafe work
cease ..................................... 86
86 Worker to notify if ceases work. . . . . . . . . . . . . . . . . . . . . . . . . . . 87
87 Alternative work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
88 Continuity of engagement of worker. . . . . . . . . . . . . . . . . . . . . . . 87
89 Request to regulator to appoint inspector to assist . . . . . . . . . . . 88
Division 7 Provisional improvement notices
90 Provisional improvement notices . . . . . . . . . . . . . . . . . . . . . . . . . 88
91 Provisional improvement notice to be in writing . . . . . . . . . . . . . . 89
92 Contents of provisional improvement notice. . . . . . . . . . . . . . . . . 89
93 Provisional improvement notice may give directions to remedy
contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
94 Minor changes to provisional improvement notice . . . . . . . . . . . . 90
95 Issue of provisional improvement notice . . . . . . . . . . . . . . . . . . . 90
96 Health and safety representative may cancel notice . . . . . . . . . . 90
97 Display of provisional improvement notice . . . . . . . . . . . . . . . . . . 90
98 Formal irregularities or defects in notice. . . . . . . . . . . . . . . . . . . . 91
99 Offence to contravene a provisional improvement notice . . . . . . . 91
100 Request for review of provisional improvement notice . . . . . . . . . 91
101 Regulator to appoint inspector to review notice . . . . . . . . . . . . . . 92
102 Decision of inspector on review of provisional improvement
notice ..................................... 92
Division 8 Part not to apply to prisoners and detainees
103 Part does not apply to prisoners and detainees . . . . . . . . . . . . . . 93
Part 6 Discriminatory, coercive and misleading conduct
Division 1 Prohibition of discriminatory, coercive or misleading
conduct
104 Prohibition of discriminatory conduct . . . . . . . . . . . . . . . . . . . . . . 93
105 What is discriminatory conduct . . . . . . . . . . . . . . . . . . . . . . . . . . 94
106 What is a prohibited reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
107 Prohibition of requesting, instructing, inducing, encouraging,
authorising or assisting discriminatory conduct . . . . . . . . . . . . . . 96
108 Prohibition of coercion or inducement . . . . . . . . . . . . . . . . . . . . . 96
109 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Division 2 Criminal proceedings in relation to discriminatory conduct
110 Proof of discriminatory conduct . . . . . . . . . . . . . . . . . . . . . . . . . . 98
111 Order for compensation or reinstatement. . . . . . . . . . . . . . . . . . . 98
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Division 3 Civil proceedings in relation to discriminatory or coercive
conduct
112 Civil proceedings in relation to engaging in or inducing
discriminatory or coercive conduct . . . . . . . . . . . . . . . . . . . . . . . . 99
113 Procedure for civil actions for discriminatory conduct . . . . . . . . . 100
Division 4 General
114 General provisions relating to orders . . . . . . . . . . . . . . . . . . . . . . 101
115 Prohibition of multiple actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Part 7 Workplace entry by WHS entry permit holders
Division 1 Introductory
116 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Division 2 Entry to inquire into suspected contraventions
117 Entry to inquire into suspected contraventions. . . . . . . . . . . . . . . 103
118 Rights that may be exercised while at workplace . . . . . . . . . . . . . 103
119 Notice of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
120 Entry to inspect employee records or information held by
another person .................................... 105
Division 3 Entry to consult and advise workers
121 Entry to consult and advise workers. . . . . . . . . . . . . . . . . . . . . . . 106
122 Notice of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Division 4 Requirements for WHS entry permit holders
123 Contravening WHS entry permit conditions . . . . . . . . . . . . . . . . . 106
124 WHS entry permit holder must also hold permit under other law . 107
125 WHS entry permit to be available for inspection. . . . . . . . . . . . . . 107
126 When right may be exercised . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
127 Where the right may be exercised . . . . . . . . . . . . . . . . . . . . . . . . 107
128 Work health and safety requirements. . . . . . . . . . . . . . . . . . . . . . 108
129 Residential premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
130 WHS entry permit holder not required to disclose names of
workers ....................................... 108
Division 5 WHS entry permits
131 Application for WHS entry permit . . . . . . . . . . . . . . . . . . . . . . . . . 109
132 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
133 Eligibility criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
134 Issue of WHS entry permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
135 Conditions on WHS entry permit . . . . . . . . . . . . . . . . . . . . . . . . . 110
136 Term of WHS entry permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
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137 Expiry of WHS entry permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
138 Application to revoke WHS entry permit. . . . . . . . . . . . . . . . . . . . 111
139 Commission must permit WHS entry permit holder to show
cause ........................................ 112
140 Determination of application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Division 6 Dealing with disputes
141 Application for assistance of inspector to resolve dispute . . . . . . 113
142 Commission may deal with a dispute about a right of entry
under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
143 Contravening order made to deal with dispute . . . . . . . . . . . . . . . 115
Division 7 Prohibitions
144 Person must not refuse or delay entry of WHS entry permit
holder ....................................... 115
145 Person must not hinder or obstruct WHS entry permit holder . . . 115
146 WHS entry permit holder must not delay, hinder or obstruct any
person or disrupt work at workplace. . . . . . . . . . . . . . . . . . . . . . . 116
147 Misrepresentations about things authorised by this part . . . . . . . 116
148 Unauthorised use or disclosure of information or documents . . . 116
Division 8 General
149 Return of WHS entry permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
150 Union to provide information to industrial registrar . . . . . . . . . . . . 118
151 Register of WHS entry permit holders . . . . . . . . . . . . . . . . . . . . . 119
Part 8 The regulator
Division 1 Functions of regulator
152 Functions of regulator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
153 Powers of regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
154 Delegation by regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Division 2 Powers of regulator to obtain information
155 Powers of regulator to obtain information . . . . . . . . . . . . . . . . . . . 121
Part 9 Securing compliance
Division 1 Appointment of inspectors
156 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
157 Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
158 Accountability of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
159 Suspension and ending of appointment of inspectors . . . . . . . . . 124
Division 2 Functions and powers of inspectors
160 Functions and powers of inspectors . . . . . . . . . . . . . . . . . . . . . . . 124
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161 Conditions on inspectors' compliance powers . . . . . . . . . . . . . . . 124
162 Inspectors subject to regulator's directions . . . . . . . . . . . . . . . . . 125
Division 3 Powers relating to entry
Subdivision 1 General powers of entry
163 Powers of entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
164 Notification of entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
165 General powers on entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
166 Persons assisting inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Subdivision 2 Search warrants
167 Search warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
167A Electronic application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
168 Announcement before entry on warrant . . . . . . . . . . . . . . . . . . . . 130
169 Copy of warrant to be given to person with management or
control of place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Subdivision 3 Limitation on entry powers
170 Places used for residential purposes . . . . . . . . . . . . . . . . . . . . . . 131
Subdivision 4 Specific powers on entry
171 Power to require production of documents and answers to
questions ...................................... 132
172 Abrogation of privilege against self-incrimination . . . . . . . . . . . . . 133
173 Warning to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
174 Powers to copy and retain documents . . . . . . . . . . . . . . . . . . . . . 134
175 Power to seize evidence etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
176 Inspector's power to seize dangerous workplaces and things . . . 135
177 Powers supporting seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
178 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
179 Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
180 Return of seized things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
181 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Division 4 Damage and compensation
182 Damage etc. to be minimised. . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
183 Inspector to give notice of damage. . . . . . . . . . . . . . . . . . . . . . . . 139
184 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Division 5 Other matters
185 Power to require name and address. . . . . . . . . . . . . . . . . . . . . . . 140
186 Inspector may take affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
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187 Inspector at coronial inquests. . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Division 6 Offences in relation to inspectors
188 Offence to hinder or obstruct inspector . . . . . . . . . . . . . . . . . . . . 142
189 Offence to impersonate inspector. . . . . . . . . . . . . . . . . . . . . . . . . 142
190 Offence to assault, threaten or intimidate inspector . . . . . . . . . . . 142
Part 10 Enforcement measures
Division 1 Improvement notices
191 Issue of improvement notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
192 Contents of improvement notices . . . . . . . . . . . . . . . . . . . . . . . . . 143
193 Compliance with improvement notice. . . . . . . . . . . . . . . . . . . . . . 144
194 Extension of time for compliance with improvement notices . . . . 144
Division 2 Prohibition notices
195 Power to issue prohibition notice . . . . . . . . . . . . . . . . . . . . . . . . . 144
196 Contents of prohibition notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
197 Compliance with prohibition notice. . . . . . . . . . . . . . . . . . . . . . . . 146
Division 3 Non-disturbance notices
198 Issue of non-disturbance notice . . . . . . . . . . . . . . . . . . . . . . . . . . 146
199 Contents of non-disturbance notice . . . . . . . . . . . . . . . . . . . . . . . 146
200 Compliance with non-disturbance notice . . . . . . . . . . . . . . . . . . . 147
201 Issue of subsequent notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Division 4 General requirements applying to notices
202 Application of division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
203 Notice to be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
204 Directions in notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
205 Recommendations in notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
206 Changes to notice by inspector . . . . . . . . . . . . . . . . . . . . . . . . . . 148
207 Regulator may vary or cancel notice . . . . . . . . . . . . . . . . . . . . . . 148
208 Formal irregularities or defects in notice. . . . . . . . . . . . . . . . . . . . 148
209 Issue and giving of notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
210 Display of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Division 5 Remedial action
211 When regulator may carry out action . . . . . . . . . . . . . . . . . . . . . . 150
212 Power of the regulator to take other remedial action . . . . . . . . . . 150
213 Costs of remedial or other action . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 6 Injunctions
214 Application of division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
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215 Injunctions for noncompliance with notices . . . . . . . . . . . . . . . . . 151
Part 11 Enforceable undertakings
216 Regulator may accept WHS undertakings . . . . . . . . . . . . . . . . . . 152
217 Notice of decision and reasons for decision . . . . . . . . . . . . . . . . . 152
218 When a WHS undertaking is enforceable . . . . . . . . . . . . . . . . . . 152
219 Compliance with WHS undertaking . . . . . . . . . . . . . . . . . . . . . . . 153
220 Contravention of WHS undertaking . . . . . . . . . . . . . . . . . . . . . . . 153
221 Withdrawal or variation of WHS undertaking . . . . . . . . . . . . . . . . 153
222 Proceeding for alleged contravention . . . . . . . . . . . . . . . . . . . . . . 154
Part 12 Review of decisions
Division 1 Reviewable decisions
223 Which decisions are reviewable . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Division 2 Internal review
224 Application for internal review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
225 Internal reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
226 Decision of internal reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
227 Decision on internal review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
228 Stay of reviewable decisions on internal review . . . . . . . . . . . . . . 157
Division 3 External review
229 Application for external review . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Division 4 Review by commission
229A Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
229B How to start review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
229C Stay of operation of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
229D Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
229E Powers of commission on application. . . . . . . . . . . . . . . . . . . . . . 160
229F Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Part 13 Legal proceedings
Division 1 General matters
230 Prosecutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
231 Procedure if prosecution is not brought . . . . . . . . . . . . . . . . . . . . 161
232 Limitation period for prosecutions . . . . . . . . . . . . . . . . . . . . . . . . 163
233 Multiple contraventions of health and safety duty provision . . . . . 163
Division 2 Sentencing for offences
234 Application of this division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
235 Orders generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
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236 Adverse publicity orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
237 Orders for restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
238 Work health and safety project orders . . . . . . . . . . . . . . . . . . . . . 166
239 Release on the giving of a court-ordered WHS undertaking . . . . 166
240 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
241 Training orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
242 Offence to fail to comply with order . . . . . . . . . . . . . . . . . . . . . . . 167
Division 3
243 Division and section number not used . . . . . . . . . . . . . . . . . . . . . 168
Division 4 Offences by bodies corporate
244 Imputing conduct to bodies corporate . . . . . . . . . . . . . . . . . . . . . 168
Division 5 The State, Commonwealth and other States
245 Offences and the State, Commonwealth and other States . . . . . 168
246 WHS civil penalty provisions and the State, Commonwealth and
other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
247 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
248 Responsible agency for the State, Commonwealth or another
State ..................................... 170
Division 6 Public authorities
249 Application to public authorities that are bodies corporate or
local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
250 Proceedings against public authorities . . . . . . . . . . . . . . . . . . . . . 172
251 Imputing conduct to public authorities . . . . . . . . . . . . . . . . . . . . . 172
252 Officer of public authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
253 Proceedings against successors to public authorities . . . . . . . . . 173
Division 7 WHS civil penalty provisions
254 When is a provision a WHS civil penalty provision. . . . . . . . . . . . 173
255 Proceedings for contravention of WHS civil penalty provision . . . 174
256 Involvement in contravention treated in same way as actual
contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
257 Contravening a civil penalty provision is not an offence . . . . . . . . 175
258 Civil proceeding rules and procedure to apply . . . . . . . . . . . . . . . 175
259 Proceeding for a contravention of a WHS civil penalty provision . 175
260 Proceeding may be taken by the regulator or an inspector . . . . . 175
261 Limitation period for WHS civil penalty proceedings . . . . . . . . . . 176
262 Recovery of a monetary penalty. . . . . . . . . . . . . . . . . . . . . . . . . . 176
263 Civil double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
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264 Criminal proceedings during civil proceedings . . . . . . . . . . . . . . . 176
265 Criminal proceedings after civil proceedings . . . . . . . . . . . . . . . . 177
266 Evidence given in proceedings for contravention of WHS civil
penalty provision not admissible in criminal proceedings. . . . . . . 177
Division 8 Civil liability not affected by this Act
267 Civil liability not affected by this Act . . . . . . . . . . . . . . . . . . . . . . . 178
Part 14 General
Division 1 General provisions
268 Offence to give false or misleading information . . . . . . . . . . . . . . 178
269 Act does not affect legal professional privilege . . . . . . . . . . . . . . 179
270 Immunity from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
271 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
272 No contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
273 Person not to levy workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Division 2 Codes of practice
274 Approved codes of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
275 Use of codes of practice in proceedings . . . . . . . . . . . . . . . . . . . 183
Division 3 Regulation-making power
276 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Part 15 Repeals
277 Repeal of Workplace Health and Safety Act 1995 . . . . . . . . . . . . 185
278 Repeal of Dangerous Goods Safety Management Act 2001 . . . . 185
Part 16 Transitional provisions
Division 1 Provisions for the repeal of the Workplace Health and
Safety Act 1995
Subdivision 1 Preliminary
279 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Subdivision 2 Proceedings
280 Application of this Act and repealed Act in relation to particular
provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
281 Application of this Act and repealed Act in relation to other
particular provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
282 Investigations and proceedings generally . . . . . . . . . . . . . . . . . . 188
Subdivision 3 Status of persons, bodies, processes and other matters
283 Principal contractor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
284 Code of practice preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
285 Enforceable undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
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286 Appointment to particular board and committee preserved . . . . . 191
287 Election of workplace health and safety representative
preserved .................................. 192
288 Training requirements for workplace health and safety
representative .................................... 192
289 Provisional improvement notices preserved. . . . . . . . . . . . . . . . . 193
290 Suspension or cancellation relating to workplace health and
safety representative preserved . . . . . . . . . . . . . . . . . . . . . . . . . . 193
291 Workplace health and safety committee preserved . . . . . . . . . . . 194
292 Appointment of authorised representative preserved. . . . . . . . . . 195
293 Appointment of inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
294 Warrants and actions by inspectors preserved . . . . . . . . . . . . . . 196
295 Improvement notice preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
296 Prohibition notice preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
297 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Division 2 Provisions for repeal of Dangerous Goods Safety
Management Act 2001
298 Definitions for pt 15, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
299 Application of this Act and repealed Act in relation to particular
provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
300 Application of this Act and repealed Act in relation to other
particular provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
301 Investigations and proceedings generally . . . . . . . . . . . . . . . . . . 199
302 Directive by authorised officer preserved . . . . . . . . . . . . . . . . . . . 200
303 Warrants and actions by authorised officer preserved . . . . . . . . . 201
304 Cost recovery notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
305 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
306 Regulation-making power for major hazard facility. . . . . . . . . . . . 202
Division 3 Other transitional provisions
307 Power to make subordinate legislation unaffected by direct
amendment by Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Part 17 Amendment of asbestos definition
Division 1 Amendment of Coal Mining Safety and Health Regulation
2001
308 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
309 Amendment of sch 9 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 203
Division 2 Amendment of Public Health Regulation 2005
310 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
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311 Amendment of s 2B (Definitions for div 1) . . . . . . . . . . . . . . . . . . 204
Division 3 Amendment of Mining and Quarrying Safety and Health
Regulation 2001
312 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
313 Amendment of sch 7 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 205
Division 4 Amendment of Workplace Health and Safety Act 1995
314 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
315 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 206
Division 5 Amendment of Workplace Health and Safety Regulation
2008
316 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
317 Replacement of sch 9, s 1 (Amosite, crocidolite,
fibrous anthophyllite, tremolite or actinolite) . . . . . . . . . . . . . . . . . 207
Part 18 Amendment of other legislation relating to safety
Division 1 Building and construction work levy amendments
Subdivision 1 Building and Construction Industry (Portable Long Service
Leave) Act 1991
318 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
319 Amendment of s 3A (Who is an eligible worker). . . . . . . . . . . . . . 208
320 Amendment of s 32 (Funds of authority) . . . . . . . . . . . . . . . . . . . 208
321 Amendment of s 66 (Imposition of levies) . . . . . . . . . . . . . . . . . . 209
322 Amendment of s 72 (Rate of levy) . . . . . . . . . . . . . . . . . . . . . . . . 209
323 Amendment of sch (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . 209
324 Insertion of new pt 11, div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Division 7 Transitional provisions for Work Health and
Safety Act 2011
124 Liability to pay fee under regulation preserved. . . . . . 210
Subdivision 2 Building and Construction Industry (Portable Long Service
Leave) Regulation 2002
325 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
326 Amendment of s 6 (Building and construction work for which no
levy is payable--Act, s 70(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
327 Amendment of s 7 (Prescribed percentage for levy--Act, s 72). . 211
Subdivision 3 Workplace Health and Safety Regulation 2008
328 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
329 Omission of pt 9 (Notifiable building and construction work) . . . . 212
330 Omission of sch 1, item 1 (Notification of building and
construction work) ............................... 212
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Division 2 Amendment of Electrical Safety Act 2002
331 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
332 Amendment of s 3 (Act binds all persons) . . . . . . . . . . . . . . . . . . 212
333 Amendment of s 5 (How purpose of Act is to be achieved) . . . . . 212
334 Amendment of s 10 (Meanings of electrical risk, electrically safe
and electrical safety) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
335 Replacement of ss 14 and 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
14 Meaning of electrical equipment. . . . . . . . . . . . . . . . . 213
15 Meaning of electrical installation . . . . . . . . . . . . . . . . 214
336 Replacement of s 18 (Meaning of electrical work) . . . . . . . . . . . . 215
18 Meaning of electrical work . . . . . . . . . . . . . . . . . . . . . 215
337 Replacement of s 21 (Meaning of employer) . . . . . . . . . . . . . . . . 218
21 Meaning of person conducting a business or
undertaking ........................... 218
338 Replacement of s 22 (Meaning of worker) . . . . . . . . . . . . . . . . . . 219
22 Meaning of worker . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
339 Omission of s 23 (Meaning of self-employed person) . . . . . . . . . 220
340 Amendment of pt 2 hdg (Electrical safety obligations) . . . . . . . . . 220
341 Replacement of pt 2, div 1 (Preliminary) . . . . . . . . . . . . . . . . . . . 220
Division 1 Introductory
Subdivision 1 Principles that apply to duties
26 Principles that apply to duties. . . . . . . . . . . . . . . . . . . 221
27 Duties not transferable . . . . . . . . . . . . . . . . . . . . . . . . 221
27A Person may have more than 1 duty . . . . . . . . . . . . . . 221
27B More than 1 person can have a duty . . . . . . . . . . . . . 221
Subdivision 2 What is reasonably practicable
28 What is reasonably practicable in ensuring electrical
safety ............................... 222
342 Amendment of pt 2, div 2 heading . . . . . . . . . . . . . . . . . . . . . . . . 222
343 Amendment of s 29 (Obligation of electricity entity) . . . . . . . . . . . 222
344 Amendment of s 30 (Obligation of employer or self-employed
person) ....................................... 223
345 Amendment of s 31 (Obligation of designer of electrical
equipment) .................................... 223
346 Amendment of s 32 (Obligation of manufacturer of electrical
equipment) .................................. 224
347 Amendment of s 33 (Obligation of importer of electrical
equipment) ................................. 224
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348 Replacement of s 34 (Obligation of supplier of electrical
equipment) .................................... 225
34 Duty of person conducting business or undertaking
that supplies electrical equipment . . . . . . . . . . . . . . . 225
349 Amendment of s 35 (Additional obligations of designer,
manufacturer, importer or supplier of electrical equipment) . . . . . 225
350 Amendment of s 36 (Obligation of installer of electrical
equipment or electrical installation) . . . . . . . . . . . . . . . . . . . . . . . 226
351 Amendment of s 37 (Obligation of repairer of electrical
equipment or electrical installation) . . . . . . . . . . . . . . . . . . . . . . . 226
352 Amendment of s 38 (Obligation of person in control of electrical
equipment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
353 Insertion of new s 38A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
38A Duty of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
354 Replacement of s 39 (Obligation of worker) . . . . . . . . . . . . . . . . . 229
39 Duty of worker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
355 Replacement of s 40 (Obligation of other person) . . . . . . . . . . . . 230
40 Duty of other person. . . . . . . . . . . . . . . . . . . . . . . . . . 230
356 Amendment of s 40A (Minister may make recall order) . . . . . . . . 230
357 Renumbering of pt 2, div 2A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
358 Insertion of new pt 2, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Division 2A Offences and penalties
40A Electrical safety duty . . . . . . . . . . . . . . . . . . . . . . . . . 231
40B Reckless conduct--category 1. . . . . . . . . . . . . . . . . . 231
40C Failure to comply with electrical safety
duty--category 2 ...................... 232
40D Failure to comply with electrical safety
duty--category 3 ........................ 232
40E Duty prevails over particular excuses . . . . . . . . . . . . . 233
40F Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
359 Amendment of pt 2, div 3, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
360 Omission of s 41 (Effect of regulation for discharge of electrical
safety obligation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
361 Amendment of s 42 (Ministerial notice about discharging
electrical safety obligation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
362 Amendment of s 43 (Effect of ministerial notice for discharge of
electrical safety obligation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
363 Amendment of s 44 (Code of practice about discharging
electrical safety obligation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
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364 Replacement of s 45 (Effect of code of practice for discharge of
electrical safety obligation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
45 Use of code of practice in proceedings . . . . . . . . . . . 235
365 Omission of pt 2, div 4 (Defences) . . . . . . . . . . . . . . . . . . . . . . . . 236
366 Omission of pt 2, div 5 (Effect of Act on civil liability) . . . . . . . . . . 236
367 Replacement of pt 3 (Enforceable undertakings) . . . . . . . . . . . . . 236
Part 3 Enforceable undertakings
49 Regulator may accept an electrical safety
undertaking ......................... 236
50 Notice of decision and reasons for decision . . . . . . . . 237
51 When an electrical safety undertaking is enforceable 237
52 Compliance with an electrical safety undertaking . . . 237
53 Contravention of an electrical safety undertaking. . . . 237
54 Withdrawal or variation of electrical safety
undertaking ........................ 238
54A Proceeding for alleged contravention . . . . . . . . . . . . . 238
368 Amendment of s 57AA (Employer or self-employed person must
ensure workers are appropriately licensed) . . . . . . . . . . . . . . . . . 239
369 Amendment of s 57AB (Employers or self-employed persons
must keep register of licensed workers) . . . . . . . . . . . . . . . . . . . . 239
370 Amendment of s 57AC (Licence holder engaged by employer or
self-employed person must notify changes) . . . . . . . . . . . . . . . . . 240
371 Amendment of s 63 (Electrical licence conditions and
restrictions) ................................ 240
372 Amendment of s 67 (Obligation of prescribed electricity entity) . . 241
373 Amendment of s 77 (Composition of board). . . . . . . . . . . . . . . . . 241
374 Amendment of s 94 (Functions of equipment committee) . . . . . . 241
375 Amendment of pt 10, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
376 Renumbering of pt 10, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
377 Replacement of pt 10, div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 1 Regulator
122 Functions of regulator. . . . . . . . . . . . . . . . . . . . . . . . . 242
122A Powers of regulator . . . . . . . . . . . . . . . . . . . . . . . . . . 243
122B Delegation by regulator . . . . . . . . . . . . . . . . . . . . . . . 243
122C Power of regulator to obtain information. . . . . . . . . . . 243
Division 2 Appointment of inspectors
123 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . 245
123A Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
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124 Accountability of inspectors . . . . . . . . . . . . . . . . . . . . 246
125 Suspension and ending of appointment of inspectors 246
126 Appointment of temporary inspector . . . . . . . . . . . . . 246
127 Exercise of powers by temporary inspector . . . . . . . . 247
378 Insertion of new section 136B . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
136B Offence to impersonate accredited auditor. . . . . . . . . 248
379 Replacement of pt 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
Part 11 Securing compliance
Division 1 Functions and powers of inspectors
137 Functions and powers of inspectors . . . . . . . . . . . . . . 248
137A Conditions on inspectors' compliance powers . . . . . . 248
137B Inspectors subject to regulator's directions . . . . . . . . 249
Division 2 Powers relating to entry
Subdivision 1 General powers of entry
138 Powers of entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
138A Notification of entry. . . . . . . . . . . . . . . . . . . . . . . . . . . 250
138B General powers on entry . . . . . . . . . . . . . . . . . . . . . . 250
138C Persons assisting inspectors . . . . . . . . . . . . . . . . . . . 252
138D Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Subdivision 2 Search warrants
139 Search warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
139A Electronic application . . . . . . . . . . . . . . . . . . . . . . . . . 254
139B Announcement before entry on warrant . . . . . . . . . . . 255
139C Copy of warrant to be given to person with
management or control of place. . . . . . . . . . . . . . . . . 256
Subdivision 3 Limitation on entry powers
140 Places used for residential purposes . . . . . . . . . . . . . 256
Subdivision 4 Specific powers on entry
141 Power to require production of documents and
answers to questions . . . . . . . . . . . . . . . . . . . . . . . . . 257
141A Abrogation of privilege against self-incrimination . . . . 258
141B Warning to be given . . . . . . . . . . . . . . . . . . . . . . . . . . 258
141C Powers to copy and retain documents . . . . . . . . . . . . 259
141D Power to seize evidence etc. . . . . . . . . . . . . . . . . . . . 260
141E Inspector's power to seize unsafe electrical
equipment at an entered place. . . . . . . . . . . . . . . . . . 260
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141F Inspector's power to seize other unsafe electrical
equipment ............................. 261
141G Powers supporting seizure . . . . . . . . . . . . . . . . . . . . . 261
141H Inspector may require thing's return . . . . . . . . . . . . . . 263
141I Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . 263
141J Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . 264
141K Return of seized thing . . . . . . . . . . . . . . . . . . . . . . . . 265
141L Returning seized electrical equipment that is not
electrically safe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
141M Access to seized things . . . . . . . . . . . . . . . . . . . . . . . 266
Division 3 Damage and compensation
142 Damage etc. to be minimised. . . . . . . . . . . . . . . . . . . 267
142A Inspector to give notice of damage. . . . . . . . . . . . . . . 267
142B Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Division 4 Serious electrical incident or dangerous
electrical event
143 Power to inquire into serious electrical incident or
dangerous electrical event . . . . . . . . . . . . . . . . . . . . . 268
Division 5 Other matters
144 Power to require name and address . . . . . . . . . . . . . 269
144A Inspector may take affidavits . . . . . . . . . . . . . . . . . . . 270
144B Inspector at coronial inquests. . . . . . . . . . . . . . . . . . . 270
Division 6 Offences in relation to inspectors
145 Offence to hinder or obstruct inspector . . . . . . . . . . . 270
145A Offence to impersonate inspector. . . . . . . . . . . . . . . . 270
145B Offence to assault, threaten or intimidate inspector . . 271
Part 11A Enforcement measures
Division 1 Improvement notices
146 Issue of improvement notice. . . . . . . . . . . . . . . . . . . . 271
146A Contents of improvement notice. . . . . . . . . . . . . . . . . 271
146B Compliance with improvement notice. . . . . . . . . . . . . 272
146C Extension of time for compliance with improvement
notice ............................... 272
Division 2 Electrical safety protection notices
147 Electrical safety protection notice . . . . . . . . . . . . . . . . 273
Division 3 Unsafe equipment notices
148 Unsafe equipment notice . . . . . . . . . . . . . . . . . . . . . . 274
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Division 4 Non-disturbance notices
149 Issue of non-disturbance notice . . . . . . . . . . . . . . . . . 275
149A Contents of non-disturbance notice . . . . . . . . . . . . . . 275
149B Compliance with non-disturbance notice . . . . . . . . . . 276
149C Issue of subsequent notices. . . . . . . . . . . . . . . . . . . . 276
Division 5 General requirements applying to notices
150 Application of division. . . . . . . . . . . . . . . . . . . . . . . . . 276
150A Notice to be in writing . . . . . . . . . . . . . . . . . . . . . . . . . 276
150B Directions in notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
150C Recommendations in notice . . . . . . . . . . . . . . . . . . . . 277
150D Changes to notice by inspector . . . . . . . . . . . . . . . . . 277
150E Regulator may vary or cancel notice . . . . . . . . . . . . . 277
150F Formal irregularities or defects in notice. . . . . . . . . . . 277
150G Issue and giving of notice. . . . . . . . . . . . . . . . . . . . . . 278
150H Display of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Division 6 Remedial action
151 When regulator may carry out action . . . . . . . . . . . . . 279
151A Power of the regulator to take other remedial action . 279
151B Costs of remedial or other action . . . . . . . . . . . . . . . . 280
Division 7 Injunctions
152 Application of division. . . . . . . . . . . . . . . . . . . . . . . . . 280
152A Injunctions for noncompliance with notices . . . . . . . . 280
Division 8 Retail entity to give information
153 Provision of information by retail entity. . . . . . . . . . . . 281
380 Replacement of pt 12, hdg (Reviews and appeals) . . . . . . . . . . . 281
381 Replacement of pt 12, div 2 hdg (Reviews of decisions) . . . . . . . 281
382 Amendment of s 170 (Review of decisions) . . . . . . . . . . . . . . . . . 282
383 Replacement of s 171 (Stay of operation of original decision) . . . 282
171 Stay of reviewable decisions on internal review . . . . . 282
384 Replacement of pt 12, div 3 (Appeals) . . . . . . . . . . . . . . . . . . . . . 283
Division 3 External review
172 Application for external review . . . . . . . . . . . . . . . . . . 283
385 Renumbering of pt 14 (Miscellaneous provisions) . . . . . . . . . . . . 283
386 Replacement of pt 13, divs 2, 2A and 3 . . . . . . . . . . . . . . . . . . . . 283
Division 2 Other matters
186 Prosecutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
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186A Procedure if prosecution is not brought . . . . . . . . . . . 284
186B Limitation period for prosecutions . . . . . . . . . . . . . . . 285
186C Multiple contraventions of electrical safety duty
provision ........................... 286
Division 3 Sentencing for offences
187 Application of this division . . . . . . . . . . . . . . . . . . . . . 287
187A Orders generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
187B Adverse publicity order . . . . . . . . . . . . . . . . . . . . . . . . 287
187C Order for restoration . . . . . . . . . . . . . . . . . . . . . . . . . . 288
187D Electrical safety project order . . . . . . . . . . . . . . . . . . . 288
187E Release on the giving of a court-ordered electrical
safety undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
187F Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
187G Training order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
187H Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 290
187I Dealing with forfeited thing . . . . . . . . . . . . . . . . . . . . . 290
187J Offence to fail to comply with order . . . . . . . . . . . . . . 291
Division 4 Offences by bodies corporate
188 Imputing conduct to body corporate . . . . . . . . . . . . . . 291
Division 5 The State, Commonwealth and other States
189 Offence and the State, Commonwealth and other
States ........................... 292
189A Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
189B Responsible agency for the State, Commonwealth
or other State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Division 6 Public authorities
190 Application to public authorities that are bodies
corporate ........................... 294
190A Proceedings against public authorities. . . . . . . . . . . . 294
190B Imputing conduct to public authorities . . . . . . . . . . . . 295
190C Officer of public authority . . . . . . . . . . . . . . . . . . . . . . 295
190D Proceedings against successors to public authorities 295
Division 7 Civil liability not affected by this Act
191 Civil liability not affected by this Act . . . . . . . . . . . . . . 296
Part 14 General
Division 1 General provisions
192 Offence to give false or misleading information . . . . . 296
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192A Act does not affect legal professional privilege . . . . . 297
192B Immunity from liability . . . . . . . . . . . . . . . . . . . . . . . . . 297
193 Confidentiality of information . . . . . . . . . . . . . . . . . . . 298
194 No contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
195 Person not to levy workers . . . . . . . . . . . . . . . . . . . . . 299
387 Replacement of ss 205-205B . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
205 Recovery of fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
205A Disciplinary action and offences. . . . . . . . . . . . . . . . . 300
388 Omission of s 207 (Delegation by chief executive). . . . . . . . . . . . 300
389 Insertion of new pt 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
Part 20 Transitional provisions for Work Health and
Safety Act 2011
247A Definitions for pt 20. . . . . . . . . . . . . . . . . . . . . . . . . . . 301
248 Proceedings for offence generally . . . . . . . . . . . . . . . 301
249 Enforceable undertaking preserved . . . . . . . . . . . . . . 302
250 Appointment of inspector . . . . . . . . . . . . . . . . . . . . . . 303
251 Improvement notice preserved . . . . . . . . . . . . . . . . . . 303
252 Warrants and actions by inspector preserved . . . . . . 304
253 Reviews and appeals . . . . . . . . . . . . . . . . . . . . . . . . . 305
254 Replacement of chief executive by regulator . . . . . . . 305
390 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 306
Division 3 Amendment of Electrical Safety and Other Legislation
Amendment Act 2011
391 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
392 Omission of s 4 (Amendment of s 26 (Obligations for electrical
safety)) ........................................ 309
393 Amendment of s 5 (Amendment of s 32 (Obligation of
manufacturer of electrical equipment)) . . . . . . . . . . . . . . . . . . . . . 309
394 Amendment of s 6 (Amendment of s 33 (Obligation of importer
of electrical equipment)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
395 Amendment of s 7 (Insertion of new s 40AA). . . . . . . . . . . . . . . . 310
396 Amendment of s 8 (Insertion of new pt 2A) . . . . . . . . . . . . . . . . . 310
397 Amendment of s 10 (Insertion of new pt 14, div 1A) . . . . . . . . . . 312
398 Amendment of s 13 (Amendment of sch 2 (Dictionary)) . . . . . . . 312
399 Amendment of s 15 (Replacement of pt 6 and insertion of new
pt 6A) ........................................ 312
400 Amendment of s 19 (Amendment of sch 9 (Dictionary)) . . . . . . . 312
401 Commencement provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
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Division 4 Amendment of Penalties and Sentences Act 1992
402 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
403 Amendment of s 5 (Meaning of penalty unit) . . . . . . . . . . . . . . . . 313
Division 5 General
404 Amendments in sch 4 (Minor and consequential amendments) . 314
Part 19 Amendment of Workers' Compensation and Rehabilitation
Act 2003
405 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
406 Amendment of s 108 (Compensation entitlement) . . . . . . . . . . . . 314
407 Insertion of new ch 3, pt 2, div 5. . . . . . . . . . . . . . . . . . . . . . . . . . 315
Division 5 Compensation and leave entitlements
119A Compensation entitlement does not restrict taking or
accrual of leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
408 Insertion of new ch 14, pt 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Part 1A Information provisions for building and
construction industry
576A Definitions for pt 1A . . . . . . . . . . . . . . . . . . . . . . . . . . 316
576B Who is the principal contractor for a construction
project ......................... 316
576C Principal contractor may require relevant contractor
to give document confirming insurance status . . . . . . 317
576D Injury data for construction projects . . . . . . . . . . . . . . 318
576E Restriction on disclosure by principal contractor of
information obtained under this part. . . . . . . . . . . . . . 319
409 Insertion of new s 584A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
584A Reviews of workers' compensation scheme. . . . . . . . 319
410 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 319
Schedule 1 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
Part 1 Dangerous goods and high risk plant
1 Application to storage and handling of dangerous goods . . . . . . 321
Part 2 Relationship with other Acts
Division 1 Mining safety and related matters
2 Relationship with mining Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
3 Relationship with other Acts relating to design or manufacture of
operating plant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Division 2 Electrical safety
4 Relationship with Electrical Safety Act 2002 . . . . . . . . . . . . . . . . 326
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Division 3 Transport rail safety
5 Relationship with Transport (Rail Safety) Act 2010 . . . . . . . . . . . 327
Division 4 Other legislation
6 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
Schedule 2 The regulator and local tripartite consultation arrangements
and other local arrangements . . . . . . . . . . . . . . . . . . . . . . . . . 329
Part 1 The regulator
1 Appointment of regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Part 2 Industry consultative arrangements
Division 1 Purposes of part
2 Purposes of part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Division 2 The board and its functions
3 Work health and safety board. . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
4 Functions of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
5 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Division 3 Membership and conduct of board proceedings
6 Membership of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
7 Times of board meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
8 Conduct of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
9 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
10 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Division 4 Provisions about appointed board members
11 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
12 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
13 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Division 5 Industry sector standing committees
14 Industry sector standing committees . . . . . . . . . . . . . . . . . . . . . . 335
15 Functions of industry sector standing committees . . . . . . . . . . . . 335
Division 6 Membership and conduct of industry sector standing
committee proceedings
16 Membership of industry sector standing committee . . . . . . . . . . . 336
17 Times of industry sector standing committee meetings . . . . . . . . 336
18 Conduct of industry sector standing committee proceedings. . . . 337
19 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
20 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
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Division 7 Provisions about industry sector standing committee
members
21 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
22 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
23 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Part 3 Self-insurance report
24 Application for report relating to workers' compensation
self-insurance .................................. 340
Schedule 2A Reviewable decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
Schedule 3 Regulation-making powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
1 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
2 Incidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
3 Plant, substances or structures . . . . . . . . . . . . . . . . . . . . . . . . . . 350
4 Protection and welfare of workers . . . . . . . . . . . . . . . . . . . . . . . . 351
5 Hazards and risks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
6 Records and notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
7 Authorisations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
8 Work groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
9 Health and safety committees and health and safety
representatives .................................. 353
10 Issue resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
11 WHS entry permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
12 Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
13 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
14 Review of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Schedule 4 Minor and consequential amendments . . . . . . . . . . . . . . . . . . 355
Electrical Safety Act 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Electrical Safety Regulation 2002 . . . . . . . . . . . . . . . . . . . . . . . . 357
Environmental Protection Act 1994 . . . . . . . . . . . . . . . . . . . . . . . 357
Environmental Protection (Air) Policy 2008 . . . . . . . . . . . . . . . . . 357
Environmental Protection (Noise) Policy 2008 . . . . . . . . . . . . . . . 358
Fire and Rescue Service Act 1990. . . . . . . . . . . . . . . . . . . . . . . . 358
Industrial Relations Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
Mining and Quarrying Safety and Health Act 1999 . . . . . . . . . . . 359
Petroleum and Gas (Production and Safety) Act 2004. . . . . . . . . 360
Petroleum and Gas (Production and Safety) Regulation 2004. . . 361
Petroleum (Submerged Lands) Act 1982 . . . . . . . . . . . . . . . . . . . 361
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Right to Information Act 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Statutory Instruments Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Sustainable Planning Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Tourism Services (Code of Conduct for Inbound Tour Operators)
Regulation 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
Transport Infrastructure Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . 363
Transport (Rail Safety) Act 2010 . . . . . . . . . . . . . . . . . . . . . . . . . 364
Vocational Education, Training and Employment Act 2000 . . . . . 367
Workers' Compensation and Rehabilitation Act 2003 . . . . . . . . . 368
Schedule 5 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Page 26
2011
A Bill
An Act to provide comprehensively for work health and safety,
to provide for a new definition of asbestos in particular
legislation and for a work health and safety levy, to amend
other legislation as a consequence, and to amend the Workers'
Compensation and Rehabilitation Act 2003 for particular
purposes
Work Health and Safety Bill 2011
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Division 1 Introduction 3
1 Short title 4
This Act may be cited as the Work Health and Safety Act 5
2011. 6
2 Commencement 7
This Act, other than part 17, part 18, division 1 and part 19, 8
commences on a day to be fixed by proclamation. 9
Division 2 Object 10
3 Object 11
(1) The main object of this Act is to provide for a balanced and 12
nationally consistent framework to secure the health and 13
safety of workers and workplaces by-- 14
(a) protecting workers and other persons against harm to 15
their health, safety and welfare through the elimination 16
or minimisation of risks arising from work or from 17
particular types of substances or plant; and 18
(b) providing for fair and effective workplace 19
representation, consultation, cooperation and issue 20
resolution in relation to work health and safety; and 21
(c) encouraging unions and employer organisations to take 22
a constructive role in promoting improvements in work 23
health and safety practices, and assisting persons 24
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Work Health and Safety Bill 2011
Part 1 Preliminary
[s 3]
conducting businesses or undertakings and workers to 1
achieve a healthier and safer working environment; and 2
(d) promoting the provision of advice, information, 3
education and training in relation to work health and 4
safety; and 5
(e) securing compliance with this Act through effective and 6
appropriate compliance and enforcement measures; and 7
(f) ensuring appropriate scrutiny and review of actions by 8
persons exercising powers and performing functions 9
under this Act; and 10
(g) providing a framework for continuous improvement and 11
progressively higher standards of work health and 12
safety; and 13
(h) maintaining and strengthening the national 14
harmonisation of laws relating to work health and safety 15
and to facilitate a consistent national approach to work 16
health and safety in Queensland. 17
(2) In furthering subsection (1)(a), regard must be had to the 18
principle that workers and other persons should be given the 19
highest level of protection against harm to their health, safety 20
and welfare from hazards and risks arising from work or from 21
particular types of substances or plant as is reasonably 22
practicable. 23
Note-- 24
The numbering of this Act closely corresponds to the same numbering 25
in a model Bill prepared for and approved by the Council of Australian 26
Governments. To maximise uniformity between this Act and the model 27
Bill, the numbers of some sections in the model Bill that are not relevant 28
have not been used in the numbering of this Act, unless required for 29
provisions particular to the State. Adoption of the numbering of the 30
model Bill also results in alphanumeric numbering being used to insert 31
further provisions particular to the State. 32
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Work Health and Safety Bill 2011
Part 1 Preliminary
[s 4]
Division 3 Interpretation 1
Subdivision 1 Definitions 2
4 Definitions 3
The dictionary in schedule 5 defines particular words used in 4
this Act. 5
Subdivision 2 Other important terms 6
5 Meaning of person conducting a business or undertaking 7
(1) For this Act, a person conducts a business or undertaking-- 8
(a) whether the person conducts the business or undertaking 9
alone or with others; and 10
(b) whether or not the business or undertaking is conducted 11
for profit or gain. 12
(2) A business or undertaking conducted by a person includes a 13
business or undertaking conducted by a partnership or an 14
unincorporated association. 15
(3) If a business or undertaking is conducted by a partnership 16
(other than an incorporated partnership), a reference in this 17
Act to a person conducting the business or undertaking is to 18
be read as a reference to each partner in the partnership. 19
(4) A person does not conduct a business or undertaking to the 20
extent that the person is engaged solely as a worker in, or as 21
an officer of, that business or undertaking. 22
(5) An elected member of a local government does not in that 23
capacity conduct a business or undertaking. 24
(6) A regulation may specify the circumstances in which a person 25
may be taken not to be a person who conducts a business or 26
undertaking for the purposes of this Act or any provision of 27
this Act. 28
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[s 6]
(7) A volunteer association does not conduct a business or 1
undertaking for the purposes of this Act. 2
(8) In this section, volunteer association means a group of 3
volunteers working together for 1 or more community 4
purposes where none of the volunteers, whether alone or 5
jointly with any other volunteers, employs any person to carry 6
out work for the volunteer association. 7
6 Meaning of supply 8
(1) A supply of a thing includes a supply and a resupply of the 9
thing by way of sale, exchange, lease, hire or hire-purchase, 10
whether as principal or agent. 11
(2) A supply of a thing occurs on the passing of possession of the 12
thing to the person or an agent of the person to be supplied. 13
(3) A supply of a thing does not include-- 14
(a) the return of possession of a thing to the owner of the 15
thing at the end of a lease or other agreement; or 16
(b) a prescribed supply. 17
(4) A financier is taken not to supply plant, a substance or a 18
structure for the purposes of this Act if-- 19
(a) the financier has, in the course of the financier's 20
business as a financier, acquired ownership of, or 21
another right in, the plant, substance or structure on 22
behalf of a customer of the financier; and 23
(b) the action by the financier, that would be a supply but 24
for this subsection, is taken by the financier for, or on 25
behalf of, that customer. 26
(5) If subsection (4) applies, the person (other than the financier) 27
who had possession of the plant, substance or structure 28
immediately before the financier's customer obtained 29
possession of the plant, substance or structure is taken for the 30
purposes of this Act to have supplied the plant, substance or 31
structure to the financier's customer. 32
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[s 7]
7 Meaning of worker 1
(1) A person is a worker if the person carries out work in any 2
capacity for a person conducting a business or undertaking, 3
including work as-- 4
(a) an employee; or 5
(b) a contractor or subcontractor; or 6
(c) an employee of a contractor or subcontractor; or 7
(d) an employee of a labour hire company who has been 8
assigned to work in the person's business or 9
undertaking; or 10
(e) an outworker; or 11
(f) an apprentice or trainee; or 12
(g) a student gaining work experience; or 13
(h) a volunteer; or 14
(i) a person of a prescribed class. 15
(2) For this Act, a police officer is-- 16
(a) a worker; and 17
(b) at work throughout the time when the officer is on duty 18
or lawfully performing the functions of a police officer, 19
but not otherwise. 20
(3) The person conducting the business or undertaking is also a 21
worker if the person is an individual who carries out work in 22
that business or undertaking. 23
8 Meaning of workplace 24
(1) A workplace is a place where work is carried out for a 25
business or undertaking and includes any place where a 26
worker goes, or is likely to be, while at work. 27
(2) In this section, place includes-- 28
(a) a vehicle, vessel, aircraft or other mobile structure; and 29
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[s 9]
(b) any waters and any installation on land, on the bed of 1
any waters or floating on any waters. 2
9 Section number not used 3
See note to section 3. 4
Division 4 Application of Act 5
10 Act binds all persons 6
(1) This Act binds all persons including the State and, so far as 7
the legislative power of the Parliament permits, the 8
Commonwealth and the other States. 9
(2) The State, the Commonwealth and the other States are liable 10
for an offence against this Act. 11
(3) Without limiting subsection (1), the State, the Commonwealth 12
and the other States are liable for a contravention of a WHS 13
civil penalty provision. 14
11 Section number not used 15
See note to section 3. 16
12 Scope: application of Act to particular matters 17
Schedule 1 provides for the application of this Act to-- 18
(a) dangerous goods and high risk plant; and 19
(b) matters dealt with under other legislation. 20
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Part 2 Health and safety duties
[s 13]
Part 2 Health and safety duties 1
Division 1 Introductory 2
Subdivision 1 Principles that apply to duties 3
13 Principles that apply to duties 4
This subdivision sets out the principles that apply to all duties 5
that persons have under this Act. 6
Note-- 7
The principles will apply to duties under this part and other parts of this 8
Act including, for example, duties relating to incident notification and 9
consultation. 10
14 Duties not transferrable 11
A duty can not be transferred to another person. 12
15 Person may have more than 1 duty 13
A person can have more than 1 duty by virtue of being in 14
more than 1 class of duty holder. 15
16 More than 1 person can have a duty 16
(1) More than 1 person can concurrently have the same duty. 17
(2) Each duty holder must comply with that duty to the standard 18
required by this Act even if another duty holder has the same 19
duty. 20
(3) If more than 1 person has a duty for the same matter, each 21
person-- 22
(a) retains responsibility for the person's duty in relation to 23
the matter; and 24
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[s 17]
(b) must discharge the person's duty to the extent to which 1
the person has the capacity to influence and control the 2
matter or would have had that capacity but for an 3
agreement or arrangement purporting to limit or remove 4
that capacity. 5
17 Management of risks 6
A duty imposed on a person to ensure health and safety 7
requires the person-- 8
(a) to eliminate risks to health and safety, so far as is 9
reasonably practicable; and 10
(b) if it is not reasonably practicable to eliminate risks to 11
health and safety, to minimise those risks so far as is 12
reasonably practicable. 13
Subdivision 2 What is reasonably practicable 14
18 What is reasonably practicable in ensuring health and 15
safety 16
In this Act, reasonably practicable, in relation to a duty to 17
ensure health and safety, means that which is, or was at a 18
particular time, reasonably able to be done in relation to 19
ensuring health and safety, taking into account and weighing 20
up all relevant matters including-- 21
(a) the likelihood of the hazard or the risk concerned 22
occurring; and 23
(b) the degree of harm that might result from the hazard or 24
the risk; and 25
(c) what the person concerned knows, or ought reasonably 26
to know, about-- 27
(i) the hazard or the risk; and 28
(ii) ways of eliminating or minimising the risk; and 29
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Part 2 Health and safety duties
[s 19]
(d) the availability and suitability of ways to eliminate or 1
minimise the risk; and 2
(e) after assessing the extent of the risk and the available 3
ways of eliminating or minimising the risk, the cost 4
associated with available ways of eliminating or 5
minimising the risk, including whether the cost is 6
grossly disproportionate to the risk. 7
Division 2 Primary duty of care 8
19 Primary duty of care 9
(1) A person conducting a business or undertaking must ensure, 10
so far as is reasonably practicable, the health and safety of-- 11
(a) workers engaged, or caused to be engaged by the 12
person; and 13
(b) workers whose activities in carrying out work are 14
influenced or directed by the person; 15
while the workers are at work in the business or undertaking. 16
(2) A person conducting a business or undertaking must ensure, 17
so far as is reasonably practicable, that the health and safety of 18
other persons is not put at risk from work carried out as part of 19
the conduct of the business or undertaking. 20
(3) Without limiting subsections (1) and (2), a person conducting 21
a business or undertaking must ensure, so far as is reasonably 22
practicable-- 23
(a) the provision and maintenance of a work environment 24
without risks to health and safety; and 25
(b) the provision and maintenance of safe plant and 26
structures; and 27
(c) the provision and maintenance of safe systems of work; 28
and 29
(d) the safe use, handling and storage of plant, structures 30
and substances; and 31
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[s 19]
(e) the provision of adequate facilities for the welfare at 1
work of workers in carrying out work for the business or 2
undertaking, including ensuring access to those 3
facilities; and 4
(f) the provision of any information, training, instruction or 5
supervision that is necessary to protect all persons from 6
risks to their health and safety arising from work carried 7
out as part of the conduct of the business or undertaking; 8
and 9
(g) that the health of workers and the conditions at the 10
workplace are monitored for the purpose of preventing 11
illness or injury of workers arising from the conduct of 12
the business or undertaking. 13
(4) If-- 14
(a) a worker occupies accommodation that is owned by or 15
under the management or control of the person 16
conducting the business or undertaking; and 17
(b) the occupancy is necessary for the purposes of the 18
worker's engagement because other accommodation is 19
not reasonably available; 20
the person conducting the business or undertaking must, so far 21
as is reasonably practicable, maintain the premises so that the 22
worker occupying the premises is not exposed to risks to 23
health and safety. 24
(5) A self-employed person must ensure, so far as is reasonably 25
practicable, his or her own health and safety while at work. 26
Note-- 27
A self-employed person is also a person conducting a business or 28
undertaking for the purposes of this section. 29
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Work Health and Safety Bill 2011
Part 2 Health and safety duties
[s 20]
Division 3 Further duties of persons 1
conducting businesses or 2
undertakings 3
20 Duty of persons conducting businesses or undertakings 4
involving management or control of workplaces 5
(1) In this section, person with management or control of a 6
workplace means a person conducting a business or 7
undertaking to the extent that the business or undertaking 8
involves the management or control, in whole or in part, of the 9
workplace but does not include-- 10
(a) the occupier of a residence, unless the residence is 11
occupied for the purposes of, or as part of, the conduct 12
of a business or undertaking; or 13
(b) a prescribed person. 14
(2) The person with management or control of a workplace must 15
ensure, so far as is reasonably practicable, that the workplace, 16
the means of entering and exiting the workplace and anything 17
arising from the workplace are without risks to the health and 18
safety of any person. 19
21 Duty of persons conducting businesses or undertakings 20
involving management or control of fixtures, fittings or 21
plant at workplaces 22
(1) In this section, person with management or control of 23
fixtures, fittings or plant at a workplace means a person 24
conducting a business or undertaking to the extent that the 25
business or undertaking involves the management or control 26
of fixtures, fittings or plant, in whole or in part, at a 27
workplace, but does not include-- 28
(a) the occupier of a residence, unless the residence is 29
occupied for the purposes of, or as part of, the conduct 30
of a business or undertaking; or 31
(b) a prescribed person. 32
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Part 2 Health and safety duties
[s 22]
(2) The person with management or control of fixtures, fittings or 1
plant at a workplace must ensure, so far as is reasonably 2
practicable, that the fixtures, fittings and plant are without 3
risks to the health and safety of any person. 4
22 Duties of persons conducting businesses or 5
undertakings that design plant, substances or structures 6
(1) This section applies to a person (the designer) who conducts a 7
business or undertaking that designs-- 8
(a) plant that is to be used, or could reasonably be expected 9
to be used, as, or at, a workplace; or 10
(b) a substance that is to be used, or could reasonably be 11
expected to be used, at a workplace; or 12
(c) a structure that is to be used, or could reasonably be 13
expected to be used, as, or at, a workplace. 14
(2) The designer must ensure, so far as is reasonably practicable, 15
that the plant, substance or structure is designed to be without 16
risks to the health and safety of persons-- 17
(a) who, at a workplace, use the plant, substance or 18
structure for a purpose for which it was designed; or 19
(b) who handle the substance at a workplace; or 20
(c) who store the plant or substance at a workplace; or 21
(d) who construct the structure at a workplace; or 22
(e) who carry out any reasonably foreseeable activity at a 23
workplace in relation to-- 24
(i) the manufacture, assembly or use of the plant for a 25
purpose for which it was designed, or the proper 26
storage, decommissioning, dismantling or disposal 27
of the plant; or 28
(ii) the manufacture or use of the substance for a 29
purpose for which it was designed or the proper 30
handling, storage or disposal of the substance; or 31
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Part 2 Health and safety duties
[s 22]
(iii) the manufacture, assembly or use of the structure 1
for a purpose for which it was designed or the 2
proper demolition or disposal of the structure; or 3
Example-- 4
inspection, operation, cleaning, maintenance or repair of plant 5
(f) who are at or in the vicinity of a workplace and who are 6
exposed to the plant, substance or structure at the 7
workplace or whose health or safety may be affected by 8
a use or activity mentioned in paragraph (a), (b), (c), (d) 9
or (e). 10
(3) The designer must carry out, or arrange the carrying out of, 11
any calculations, analysis, testing or examination that may be 12
necessary for the performance of the duty imposed by 13
subsection (2). 14
(4) The designer must give adequate information to each person 15
who is provided with the design for the purpose of giving 16
effect to it concerning-- 17
(a) each purpose for which the plant, substance or structure 18
was designed; and 19
(b) the results of any calculations, analysis, testing or 20
examination mentioned in subsection (3), including, in 21
relation to a substance, any hazardous properties of the 22
substance identified by testing; and 23
(c) any conditions necessary to ensure that the plant, 24
substance or structure is without risks to health and 25
safety when used for a purpose for which it was 26
designed or when carrying out any activity mentioned in 27
subsection (2)(a) to (e). 28
(5) The designer, on request, must, so far as is reasonably 29
practicable, give current relevant information on the matters 30
mentioned in subsection (4) to a person who carries out, or is 31
to carry out, any of the activities mentioned in subsection 32
(2)(a) to (e). 33
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Work Health and Safety Bill 2011
Part 2 Health and safety duties
[s 23]
23 Duties of persons conducting businesses or 1
undertakings that manufacture plant, substances or 2
structures 3
(1) This section applies to a person (the manufacturer) who 4
conducts a business or undertaking that manufactures-- 5
(a) plant that is to be used, or could reasonably be expected 6
to be used, as, or at, a workplace; or 7
(b) a substance that is to be used, or could reasonably be 8
expected to be used, at a workplace; or 9
(c) a structure that is to be used, or could reasonably be 10
expected to be used, as, or at, a workplace. 11
(2) The manufacturer must ensure, so far as is reasonably 12
practicable, that the plant, substance or structure is 13
manufactured to be without risks to the health and safety of 14
persons-- 15
(a) who, at a workplace, use the plant, substance or 16
structure for a purpose for which it was designed or 17
manufactured; or 18
(b) who handle the substance at a workplace; or 19
(c) who store the plant or substance at a workplace; or 20
(d) who construct the structure at a workplace; or 21
(e) who carry out any reasonably foreseeable activity at a 22
workplace in relation to-- 23
(i) the assembly or use of the plant for a purpose for 24
which it was designed or manufactured or the 25
proper storage, decommissioning, dismantling or 26
disposal of the plant; or 27
(ii) the use of the substance for a purpose for which it 28
was designed or manufactured or the proper 29
handling, storage or disposal of the substance; or 30
(iii) the assembly or use of the structure for a purpose 31
for which it was designed or manufactured or the 32
proper demolition or disposal of the structure; or 33
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Part 2 Health and safety duties
[s 24]
Example-- 1
inspection, operation, cleaning, maintenance or repair of plant 2
(f) who are at or in the vicinity of a workplace and who are 3
exposed to the plant, substance or structure at the 4
workplace or whose health or safety may be affected by 5
a use or activity mentioned in paragraph (a), (b), (c), (d) 6
or (e). 7
(3) The manufacturer must carry out, or arrange the carrying out 8
of, any calculations, analysis, testing or examination that may 9
be necessary for the performance of the duty imposed by 10
subsection (2). 11
(4) The manufacturer must give adequate information to each 12
person to whom the manufacturer provides the plant, 13
substance or structure concerning-- 14
(a) each purpose for which the plant, substance or structure 15
was designed or manufactured; and 16
(b) the results of any calculations, analysis, testing or 17
examination mentioned in subsection (3), including, in 18
relation to a substance, any hazardous properties of the 19
substance identified by testing; and 20
(c) any conditions necessary to ensure that the plant, 21
substance or structure is without risks to health and 22
safety when used for a purpose for which it was 23
designed or manufactured or when carrying out any 24
activity mentioned in subsection (2)(a) to (e). 25
(5) The manufacturer, on request, must, so far as is reasonably 26
practicable, give current relevant information on the matters 27
mentioned in subsection (4) to a person who carries out, or is 28
to carry out, any of the activities mentioned in subsection 29
(2)(a) to (e). 30
24 Duties of persons conducting businesses or 31
undertakings that import plant, substances or structures 32
(1) This section applies to a person (the importer) who conducts a 33
business or undertaking that imports-- 34
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Work Health and Safety Bill 2011
Part 2 Health and safety duties
[s 24]
(a) plant that is to be used, or could reasonably be expected 1
to be used, as, or at, a workplace; or 2
(b) a substance that is to be used, or could reasonably be 3
expected to be used, at a workplace; or 4
(c) a structure that is to be used, or could reasonably be 5
expected to be used, as, or at, a workplace. 6
(2) The importer must ensure, so far as is reasonably practicable, 7
that the plant, substance or structure is without risks to the 8
health and safety of persons-- 9
(a) who, at a workplace, use the plant, substance or 10
structure for a purpose for which it was designed or 11
manufactured; or 12
(b) who handle the substance at a workplace; or 13
(c) who store the plant or substance at a workplace; or 14
(d) who construct the structure at a workplace; or 15
(e) who carry out any reasonably foreseeable activity at a 16
workplace in relation to-- 17
(i) the assembly or use of the plant for a purpose for 18
which it was designed or manufactured or the 19
proper storage, decommissioning, dismantling or 20
disposal of the plant; or 21
(ii) the use of the substance for a purpose for which it 22
was designed or manufactured or the proper 23
handling, storage or disposal of the substance; or 24
(iii) the assembly or use of the structure for a purpose 25
for which it was designed or manufactured or the 26
proper demolition or disposal of the structure; or 27
Example-- 28
inspection, operation, cleaning, maintenance or repair of plant 29
(f) who are at or in the vicinity of a workplace and who are 30
exposed to the plant, substance or structure at the 31
workplace or whose health or safety may be affected by 32
a use or activity mentioned in paragraph (a), (b), (c), (d) 33
or (e). 34
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Part 2 Health and safety duties
[s 25]
(3) The importer must-- 1
(a) carry out, or arrange the carrying out of, any 2
calculations, analysis, testing or examination that may 3
be necessary for the performance of the duty imposed 4
by subsection (2); or 5
(b) ensure that the calculations, analysis, testing or 6
examination have been carried out. 7
(4) The importer must give adequate information to each person 8
to whom the importer provides the plant, substance or 9
structure concerning-- 10
(a) each purpose for which the plant, substance or structure 11
was designed or manufactured; and 12
(b) the results of any calculations, analysis, testing or 13
examination mentioned in subsection (3), including, in 14
relation to a substance, any hazardous properties of the 15
substance identified by testing; and 16
(c) any conditions necessary to ensure that the plant, 17
substance or structure is without risks to health and 18
safety when used for a purpose for which it was 19
designed or manufactured or when carrying out any 20
activity mentioned in subsection (2)(a) to (e). 21
(5) The importer, on request, must, so far as is reasonably 22
practicable, give current relevant information on the matters 23
mentioned in subsection (4) to a person who carries out, or is 24
to carry out, any of the activities mentioned in subsection 25
(2)(a) to (e). 26
25 Duties of persons conducting businesses or 27
undertakings that supply plant, substances or structures 28
(1) This section applies to a person (the supplier) who conducts a 29
business or undertaking that supplies-- 30
(a) plant that is to be used, or could reasonably be expected 31
to be used, as, or at, a workplace; or 32
(b) a substance that is to be used, or could reasonably be 33
expected to be used, at a workplace; or 34
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Part 2 Health and safety duties
[s 25]
(c) a structure that is to be used, or could reasonably be 1
expected to be used, as, or at, a workplace. 2
(2) The supplier must ensure, so far as is reasonably practicable, 3
that the plant, substance or structure is without risks to the 4
health and safety of persons-- 5
(a) who, at a workplace, use the plant or substance or 6
structure for a purpose for which it was designed or 7
manufactured; or 8
(b) who handle the substance at a workplace; or 9
(c) who store the plant or substance at a workplace; or 10
(d) who construct the structure at a workplace; or 11
(e) who carry out any reasonably foreseeable activity at a 12
workplace in relation to-- 13
(i) the assembly or use of the plant for a purpose for 14
which it was designed or manufactured or the 15
proper storage, decommissioning, dismantling or 16
disposal of the plant; or 17
(ii) the use of the substance for a purpose for which it 18
was designed or manufactured or the proper 19
handling, storage or disposal of the substance; or 20
(iii) the assembly or use of the structure for a purpose 21
for which it was designed or manufactured or the 22
proper demolition or disposal of the structure; or 23
Example-- 24
inspection, storage, operation, cleaning, maintenance or repair of 25
plant 26
(f) who are at or in the vicinity of a workplace and who are 27
exposed to the plant, substance or structure at the 28
workplace or whose health or safety may be affected by 29
a use or activity mentioned in paragraph (a), (b), (c), (d) 30
or (e). 31
(3) The supplier must-- 32
(a) carry out, or arrange the carrying out of, any 33
calculations, analysis, testing or examination that may 34
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Part 2 Health and safety duties
[s 26]
be necessary for the performance of the duty imposed 1
by subsection (2); or 2
(b) ensure that the calculations, analysis, testing or 3
examination have been carried out. 4
(4) The supplier must give adequate information to each person to 5
whom the supplier supplies the plant, substance or structure 6
concerning-- 7
(a) each purpose for which the plant, substance or structure 8
was designed or manufactured; and 9
(b) the results of any calculations, analysis, testing or 10
examination mentioned in subsection (3), including, in 11
relation to a substance, any hazardous properties of the 12
substance identified by testing; and 13
(c) any conditions necessary to ensure that the plant, 14
substance or structure is without risks to health and 15
safety when used for a purpose for which it was 16
designed or manufactured or when carrying out any 17
activity mentioned in subsection (2)(a) to (e). 18
(5) The supplier, on request, must, so far as is reasonably 19
practicable, give current relevant information on the matters 20
mentioned in subsection (4) to a person who carries out, or is 21
to carry out, any of the activities mentioned in subsection 22
(2)(a) to (e). 23
26 Duty of persons conducting businesses or undertakings 24
that install, construct or commission plant or structures 25
(1) This section applies to a person who conducts a business or 26
undertaking that installs, constructs or commissions plant or a 27
structure that is to be used, or could reasonably be expected to 28
be used, as, or at, a workplace. 29
(2) The person must ensure, so far as is reasonably practicable, 30
that the way in which the plant or structure is installed, 31
constructed or commissioned ensures that the plant or 32
structure is without risks to the health and safety of persons-- 33
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[s 27]
(a) who install or construct the plant or structure at a 1
workplace; or 2
(b) who use the plant or structure at a workplace for a 3
purpose for which it was installed, constructed or 4
commissioned; or 5
(c) who carry out any reasonably foreseeable activity at a 6
workplace in relation to the proper use, 7
decommissioning or dismantling of the plant or 8
demolition or disposal of the structure; or 9
(d) who are at or in the vicinity of a workplace and whose 10
health or safety may be affected by a use or activity 11
mentioned in paragraph (a), (b) or (c). 12
Division 4 Duty of officers, workers and other 13
persons 14
27 Duty of officers 15
(1) If a person conducting a business or undertaking has a duty or 16
obligation under this Act, an officer of the person conducting 17
the business or undertaking must exercise due diligence to 18
ensure that the person conducting the business or undertaking 19
complies with that duty or obligation. 20
(2) Subject to subsection (3), the maximum penalty applicable 21
under division 5 for an offence relating to the duty of an 22
officer under this section is the maximum penalty fixed for an 23
officer of a person conducting a business or undertaking for 24
that offence. 25
(3) Despite anything to the contrary in section 33, if the duty or 26
obligation of a person conducting a business or undertaking 27
was imposed under a provision other than a provision of 28
division 2 or 3 or this division, the maximum penalty under 29
section 33 for an offence by an officer under section 33 in 30
relation to the duty or obligation is the maximum penalty 31
fixed under the provision creating the duty or obligation for an 32
individual who fails to comply with the duty or obligation. 33
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[s 27]
(4) An officer of a person conducting a business or undertaking 1
may be convicted or found guilty of an offence under this Act 2
relating to a duty under this section whether or not the person 3
conducting the business or undertaking has been convicted or 4
found guilty of an offence under this Act relating to the duty 5
or obligation. 6
(5) In this section, due diligence includes taking reasonable 7
steps-- 8
(a) to acquire and keep up-to-date knowledge of work 9
health and safety matters; and 10
(b) to gain an understanding of the nature of the operations 11
of the business or undertaking of the person conducting 12
the business or undertaking and generally of the hazards 13
and risks associated with those operations; and 14
(c) to ensure that the person conducting the business or 15
undertaking has available for use, and uses, appropriate 16
resources and processes to eliminate or minimise risks 17
to health and safety from work carried out as part of the 18
conduct of the business or undertaking; and 19
(d) to ensure that the person conducting the business or 20
undertaking has appropriate processes for receiving and 21
considering information regarding incidents, hazards 22
and risks and responding in a timely way to that 23
information; and 24
(e) to ensure that the person conducting the business or 25
undertaking has, and implements, processes for 26
complying with any duty or obligation of the person 27
conducting the business or undertaking under this Act; 28
and 29
Example-- 30
For paragraph (e), the duties or obligations under this Act of a 31
person conducting a business or undertaking may include-- 32
· reporting notifiable incidents 33
· consulting with workers 34
· ensuring compliance with notices issued under this Act 35
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Part 2 Health and safety duties
[s 28]
· ensuring the provision of training and instruction to workers 1
about work health and safety 2
· ensuring that health and safety representatives receive their 3
entitlements to training. 4
(f) to verify the provision and use of the resources and 5
processes mentioned in paragraphs (c) to (e). 6
28 Duties of workers 7
While at work, a worker must-- 8
(a) take reasonable care for his or her own health and 9
safety; and 10
(b) take reasonable care that his or her acts or omissions do 11
not adversely affect the health and safety of other 12
persons; and 13
(c) comply, so far as the worker is reasonably able, with any 14
reasonable instruction that is given by the person 15
conducting the business or undertaking to allow the 16
person to comply with this Act; and 17
(d) co-operate with any reasonable policy or procedure of 18
the person conducting the business or undertaking 19
relating to health or safety at the workplace that has 20
been notified to workers. 21
29 Duties of other persons at the workplace 22
A person at a workplace, whether or not the person has 23
another duty under this part, must-- 24
(a) take reasonable care for his or her own health and 25
safety; and 26
(b) take reasonable care that his or her acts or omissions do 27
not adversely affect the health and safety of other 28
persons; and 29
(c) comply, so far as the person is reasonably able, with any 30
reasonable instruction that is given by the person 31
conducting the business or undertaking to allow the 32
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Part 2 Health and safety duties
[s 30]
person conducting the business or undertaking to 1
comply with this Act. 2
Division 5 Offences and penalties 3
30 Health and safety duty 4
Health and safety duty means a duty imposed under division 5
2, 3 or 4. 6
31 Reckless conduct--category 1 7
(1) A person commits a category 1 offence if-- 8
(a) the person has a health and safety duty; and 9
(b) the person, without reasonable excuse, engages in 10
conduct that exposes an individual to whom that duty is 11
owed to a risk of death or serious injury or illness; and 12
(c) the person is reckless as to the risk to an individual of 13
death or serious injury or illness. 14
Maximum penalty-- 15
(a) for an offence committed by an individual, other than as 16
a person conducting a business or undertaking or as an 17
officer of a person conducting a business or 18
undertaking--3000 penalty units or 5 years 19
imprisonment; or 20
(b) for an offence committed by an individual as a person 21
conducting a business or undertaking or as an officer of 22
a person conducting a business or undertaking--6000 23
penalty units or 5 years imprisonment; or 24
(c) for an offence committed by a body corporate--30000 25
penalty units. 26
Note-- 27
In this division, the penalty applicable to a body corporate is separately 28
expressed. Otherwise the Penalties and Sentences Act 1992, section 29
181B applies for this Act. 30
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(2) The prosecution bears the burden of proving that the conduct 1
was engaged in without reasonable excuse. 2
(3) A category 1 offence is a crime. 3
32 Failure to comply with health and safety duty--category 2 4
A person commits a category 2 offence if-- 5
(a) the person has a health and safety duty; and 6
(b) the person fails to comply with that duty; and 7
(c) the failure exposes an individual to a risk of death or 8
serious injury or illness. 9
Maximum penalty-- 10
(a) for an offence committed by an individual, other than as 11
a person conducting a business or undertaking or as an 12
officer of a person conducting a business or 13
undertaking--1500 penalty units; or 14
(b) for an offence committed by an individual as a person 15
conducting a business or undertaking or as an officer of 16
a person conducting a business or undertaking--3000 17
penalty units; or 18
(c) for an offence committed by a body corporate--15000 19
penalty units. 20
Note-- 21
See also the note to section 31(1). 22
33 Failure to comply with health and safety duty--category 3 23
A person commits a category 3 offence if-- 24
(a) the person has a health and safety duty; and 25
(b) the person fails to comply with that duty. 26
Maximum penalty-- 27
(a) for an offence committed by an individual, other than as 28
a person conducting a business or undertaking or as an 29
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[s 33A]
officer of a person conducting a business or 1
undertaking--500 penalty units; or 2
(b) for an offence committed by an individual as a person 3
conducting a business or undertaking or as an officer of 4
a person conducting a business or undertaking--1000 5
penalty units; or 6
(c) for an offence committed by a body corporate--5000 7
penalty units. 8
Note-- 9
See also the note to section 31(1). 10
33A Duty prevails over particular excuses 11
For an offence against section 32 or 33, the Criminal Code 12
sections 23(1) and 24 are subject to divisions 1 to 4. 13
34 Exceptions 14
(1) A volunteer does not commit an offence under this division 15
for a failure to comply with a health and safety duty, except a 16
duty under section 28 or 29. 17
(2) An unincorporated association does not commit an offence 18
under this Act, and is not liable for a civil penalty under this 19
Act, for a failure to comply with a duty or obligation imposed 20
on the unincorporated association under this Act. 21
(3) However-- 22
(a) an officer of an unincorporated association (other than a 23
volunteer) may be liable for a failure to comply with a 24
duty under section 27; and 25
(b) a member of an unincorporated association may be 26
liable for failure to comply with a duty under section 28 27
or 29. 28
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Part 3 Incident notification
[s 35]
Part 3 Incident notification 1
35 What is a notifiable incident 2
In this Act, notifiable incident means-- 3
(a) the death of a person; or 4
(b) a serious injury or illness of a person; or 5
(c) a dangerous incident. 6
36 What is a serious injury or illness 7
In this part, serious injury or illness of a person means an 8
injury or illness requiring the person to have-- 9
(a) immediate treatment as an in-patient in a hospital; or 10
(b) immediate treatment for-- 11
(i) the amputation of any part of his or her body; or 12
(ii) a serious head injury; or 13
(iii) a serious eye injury; or 14
(iv) a serious burn; or 15
(v) the separation of his or her skin from an underlying 16
tissue (for example, degloving or scalping); or 17
(vi) a spinal injury; or 18
(vii) the loss of a bodily function; or 19
(viii) serious lacerations; or 20
(c) medical treatment within 48 hours of exposure to a 21
substance; 22
and includes any other injury or illness prescribed under a 23
regulation but does not include an illness or injury of a 24
prescribed kind. 25
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[s 37]
37 What is a dangerous incident 1
In this part, a dangerous incident means an incident in 2
relation to a workplace that exposes a worker or any other 3
person to a serious risk to a person's health or safety 4
emanating from an immediate or imminent exposure to-- 5
(a) an uncontrolled escape, spillage or leakage of a 6
substance; or 7
(b) an uncontrolled implosion, explosion or fire; or 8
(c) an uncontrolled escape of gas or steam; or 9
(d) an uncontrolled escape of a pressurised substance; or 10
(e) electric shock; or 11
(f) the fall or release from a height of any plant, substance 12
or thing; or 13
(g) the collapse, overturning, failure or malfunction of, or 14
damage to, any plant that is required to be authorised for 15
use under a regulation; or 16
(h) the collapse or partial collapse of a structure; or 17
(i) the collapse or failure of an excavation or of any shoring 18
supporting an excavation; or 19
(j) the inrush of water, mud or gas in workings, in an 20
underground excavation or tunnel; or 21
(k) the interruption of the main system of ventilation in an 22
underground excavation or tunnel; or 23
(l) any other event prescribed under a regulation; 24
but does not include an incident of a prescribed kind. 25
38 Duty to notify of notifiable incidents 26
(1) A person who conducts a business or undertaking must ensure 27
that the regulator is notified immediately after becoming 28
aware that a notifiable incident arising out of the conduct of 29
the business or undertaking has occurred. 30
Maximum penalty--100 penalty units. 31
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[s 39]
(2) The notice must be given as required under this section and by 1
the fastest possible means. 2
(3) The notice must be given-- 3
(a) by telephone; or 4
(b) in writing. 5
Example-- 6
The written notice can be given by facsimile, email or other 7
electronic means. 8
(4) A person giving notice by telephone must-- 9
(a) give the details of the incident requested by the 10
regulator; and 11
(b) if required by the regulator, give a written notice of the 12
incident within 48 hours of that requirement being 13
made. 14
(5) A written notice must be in a form, or contain the details, 15
approved by the regulator. 16
(6) If the regulator receives a notice by telephone and a written 17
notice is not required, the regulator must give the person 18
conducting the business or undertaking-- 19
(a) details of the information received; or 20
(b) an acknowledgement of receiving the notice. 21
(7) A person conducting a business or undertaking must keep a 22
record of each notifiable incident for at least 5 years from the 23
day that notice of the incident is given to the regulator under 24
this section. 25
Maximum penalty--50 penalty units. 26
39 Duty to preserve incident sites 27
(1) The person with management or control of a workplace at 28
which a notifiable incident has occurred must ensure so far as 29
is reasonably practicable, that the site where the incident 30
occurred is not disturbed until an inspector arrives at the site 31
or any earlier time that an inspector directs. 32
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Part 4 Authorisations
[s 40]
Maximum penalty--100 penalty units. 1
(2) In subsection (1) a reference to a site includes any plant, 2
substance, structure or thing associated with the notifiable 3
incident. 4
(3) Subsection (1) does not prevent any action-- 5
(a) to assist an injured person; or 6
(b) to remove a deceased person; or 7
(c) that is essential to make the site safe or to minimise the 8
risk of a further notifiable incident; or 9
(d) that is associated with a police investigation; or 10
(e) for which an inspector or the regulator has given 11
permission. 12
Part 4 Authorisations 13
40 Meaning of authorised 14
In this part, authorised means authorised by a licence, permit, 15
registration or other authority (however described) as required 16
under a regulation. 17
41 Requirements for authorisation of workplaces 18
A person must not conduct a business or undertaking at a 19
workplace or direct or allow a worker to carry out work at a 20
workplace if-- 21
(a) a regulation requires the workplace or workplaces in 22
that class of workplace to be authorised; and 23
(b) the workplace is not authorised under the regulation. 24
Maximum penalty--500 penalty units. 25
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Part 4 Authorisations
[s 42]
42 Requirements for authorisation of plant or substance 1
(1) A person must not use plant or a substance at a workplace if-- 2
(a) a regulation requires the plant or substance or its design 3
to be authorised; and 4
(b) the plant or substance or its design is not authorised 5
under the regulation. 6
Maximum penalty--200 penalty units. 7
(2) A person who conducts a business or undertaking must not 8
direct or allow a worker to use plant or a substance at a 9
workplace if-- 10
(a) a regulation requires the plant or substance or its design 11
to be authorised; and 12
(b) the plant or substance or its design is not authorised in 13
under a regulation. 14
Maximum penalty--200 penalty units. 15
43 Requirements for authorisation of work 16
(1) A person must not carry out work at a workplace if-- 17
(a) a regulation requires the work, or class of work, to be 18
carried out by, or on behalf of, a person who is 19
authorised; and 20
(b) the person, or the person on whose behalf the work is 21
carried out, is not authorised under a regulation. 22
Maximum penalty--200 penalty units. 23
(2) A person who conducts a business or undertaking must not 24
direct or allow a worker to carry out work at a workplace if-- 25
(a) a regulation requires the work, or class of work, to be 26
carried out by, or on behalf of, a person who is 27
authorised; and 28
(b) the person, or the person on whose behalf the work is to 29
be carried out, is not authorised under a regulation. 30
Maximum penalty--200 penalty units. 31
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Part 4 Authorisations
[s 44]
44 Requirements for prescribed qualifications or experience 1
(1) A person must not carry out work at a workplace if-- 2
(a) a regulation requires the work, or class of work, to be 3
carried out by, or under the supervision of, a person who 4
has prescribed qualifications or experience; and 5
(b) the person does not have the prescribed qualifications or 6
experience or the work is not carried out under the 7
supervision of a person who has the prescribed 8
qualifications or experience. 9
Maximum penalty--200 penalty units. 10
(2) A person who conducts a business or undertaking must not 11
direct or allow a worker to carry out work at a workplace if-- 12
(a) a regulation requires the work, or class of work, to be 13
carried out by, or under the supervision of, a person who 14
has prescribed qualifications or experience; and 15
(b) the worker does not have the prescribed qualifications or 16
experience or the work is not carried out under the 17
supervision of a person who has the prescribed 18
qualifications or experience. 19
Maximum penalty--200 penalty units. 20
45 Requirement to comply with conditions of authorisation 21
A person must comply with the conditions of any 22
authorisation given to that person under a regulation. 23
Maximum penalty--200 penalty units. 24
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Part 5 Consultation, representation and participation
[s 46]
Part 5 Consultation, representation 1
and participation 2
Division 1 Consultation, cooperation and 3
coordination between duty holders 4
46 Duty to consult with other duty holders 5
If more than 1 person has a duty in relation to the same matter 6
under this Act, each person with the duty must, so far as is 7
reasonably practicable, consult, cooperate and coordinate 8
activities with all other persons who have a duty in relation to 9
the same matter. 10
Maximum penalty--200 penalty units. 11
Division 2 Consultation with workers 12
47 Duty to consult workers 13
(1) The person conducting a business or undertaking must, so far 14
as is reasonably practicable, consult, as required under in this 15
division and any regulation, with workers who carry out work 16
for the business or undertaking who are, or are likely to be, 17
directly affected by a matter relating to work health or safety. 18
Maximum penalty--200 penalty units. 19
(2) If the person conducting the business or undertaking and the 20
workers have agreed to procedures for consultation, the 21
consultation must be in accordance with those procedures. 22
(3) The agreed procedures must not be inconsistent with section 23
48. 24
48 Nature of consultation 25
(1) Consultation under this division requires-- 26
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[s 49]
(a) that relevant information about the matter is shared with 1
workers; and 2
(b) that workers be given a reasonable opportunity-- 3
(i) to express their views and to raise work health or 4
safety issues in relation to the matter; and 5
(ii) to contribute to the decision-making process 6
relating to the matter; and 7
(c) that the views of workers are taken into account by the 8
person conducting the business or undertaking; and 9
(d) that the workers consulted are advised of the outcome of 10
the consultation in a timely way. 11
(2) If the workers are represented by a health and safety 12
representative, the consultation must involve that 13
representative. 14
49 When consultation is required 15
Consultation under this division is required in relation to the 16
following health and safety matters-- 17
(a) when identifying hazards and assessing risks to health 18
and safety arising from the work carried out or to be 19
carried out by the business or undertaking; 20
(b) when making decisions about ways to eliminate or 21
minimise those risks; 22
(c) when making decisions about the adequacy of facilities 23
for the welfare of workers; 24
(d) when proposing changes that may affect the health or 25
safety of workers; 26
(e) when making decisions about the procedures for-- 27
(i) consulting with workers; or 28
(ii) resolving work health or safety issues at the 29
workplace; or 30
(iii) monitoring the health of workers; or 31
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[s 50]
(iv) monitoring the conditions at any workplace under 1
the management or control of the person 2
conducting the business or undertaking; or 3
(v) providing information and training for workers; or 4
(f) when carrying out any other activity prescribed under a 5
regulation for this section. 6
Division 3 Health and safety representatives 7
Subdivision 1 Request for election of health and 8
safety representatives 9
50 Request for election of health and safety representative 10
A worker who carries out work for a business or undertaking 11
may ask the person conducting the business or undertaking to 12
facilitate the conduct of an election for 1 or more health and 13
safety representatives to represent workers who carry out 14
work for the business or undertaking. 15
Subdivision 2 Determination of work groups 16
51 Determination of work groups 17
(1) If a request is made under section 50, the person conducting 18
the business or undertaking must facilitate the determination 19
of 1 or more work groups of workers. 20
(2) The purpose of determining a work group is to facilitate the 21
representation of workers in the work group by 1 or more 22
health and safety representatives. 23
(3) A work group may be determined for workers at 1 or more 24
workplaces. 25
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[s 52]
52 Negotiations for agreement for work group 1
(1) A work group is to be determined by negotiation and 2
agreement between-- 3
(a) the person conducting the business or undertaking; and 4
(b) the workers who will form the work group or their 5
representatives. 6
(2) The person conducting the business or undertaking must take 7
all reasonable steps to commence negotiations with the 8
workers within 14 days after a request is made under section 9
50. 10
(3) The purpose of the negotiations is to determine-- 11
(a) the number and composition of work groups to be 12
represented by health and safety representatives; and 13
(b) the number of health and safety representatives and 14
deputy health and safety representatives (if any) to be 15
elected; and 16
(c) the workplace or workplaces to which the work groups 17
will apply; and 18
(d) the businesses or undertakings to which the work groups 19
will apply. 20
(4) The parties to an agreement concerning the determination of a 21
work group or groups may, at any time, negotiate a variation 22
of the agreement. 23
(5) The person conducting the business or undertaking must, if 24
asked by a worker, negotiate with the worker's representative 25
in negotiations under this section (including negotiations for a 26
variation of an agreement) and must not exclude the 27
representative from those negotiations. 28
Maximum penalty--100 penalty units. 29
(6) A regulation may prescribe the matters that must be taken into 30
account in negotiations for and determination of work groups 31
and variations of agreements concerning work groups. 32
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[s 53]
53 Notice to workers 1
(1) The person conducting a business or undertaking involved in 2
negotiations to determine a work group must, as soon as 3
practicable after the negotiations are completed, notify the 4
workers of the outcome of the negotiations and of any work 5
groups determined by agreement. 6
Maximum penalty--20 penalty units. 7
(2) The person conducting a business or undertaking involved in 8
negotiations for the variation of an agreement concerning the 9
determination of a work group or groups must, as soon as 10
practicable after the negotiations are completed, notify the 11
workers of the outcome of the negotiations and of the 12
variation (if any) to the agreement. 13
Maximum penalty--20 penalty units. 14
54 Failure of negotiations 15
(1) If there is a failure of negotiations (including negotiations 16
concerning the variation of an agreement), any person who is 17
or would be a party to the negotiations may ask the regulator 18
to appoint an inspector for the purposes of this section. 19
(2) An inspector appointed under subsection (1) may decide-- 20
(a) the matters mentioned in section 52(3), or any of those 21
matters which is the subject of the proposed variation 22
(as the case requires); or 23
(b) that work groups should not be determined or that the 24
agreement should not be varied (as the case requires). 25
(3) For this section, there is a failure of negotiations if-- 26
(a) the person conducting the business or undertaking has 27
not taken all reasonable steps to commence negotiations 28
with the workers and negotiations have not commenced 29
within 14 days after-- 30
(i) a request is made under section 50; or 31
(ii) a party to the agreement requests the variation of 32
the agreement; or 33
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[s 55]
(b) agreement can not be reached on a matter relating to the 1
determination of a work group (or the variation of an 2
agreement concerning a work group) within a 3
reasonable time after negotiations commence. 4
(4) A decision under this section is taken to be an agreement 5
under section 52. 6
Subdivision 3 Multiple-business work groups 7
55 Determination of work groups of multiple businesses 8
(1) Work groups may be determined for workers carrying out 9
work for 2 or more persons conducting businesses or 10
undertakings at 1 or more workplaces. 11
(2) The particulars of the work groups are to be determined by 12
negotiation and agreement, under section 56, between each of 13
the persons conducting the businesses or undertakings and the 14
workers. 15
(3) The parties to an agreement concerning the determination of a 16
work group or groups may, at any time, negotiate a variation 17
of the agreement. 18
(4) The determination of 1 or more work groups under this 19
subdivision does not-- 20
(a) prevent the determination under this subdivision or 21
subdivision 2 of any other work group of the workers 22
concerned; or 23
(b) affect any work groups of those workers that have 24
already been determined under this subdivision or 25
subdivision 2. 26
56 Negotiation of agreement for work groups of multiple 27
businesses 28
(1) Negotiations concerning work groups under this subdivision 29
must be directed only at the following-- 30
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[s 57]
(a) the number and composition of work groups to be 1
represented by health and safety representatives; 2
(b) the number of health and safety representatives and 3
deputy health and safety representatives (if any) for each 4
work group; 5
(c) the workplace or workplaces to which the work groups 6
will apply; 7
(d) the businesses or undertakings to which the work groups 8
will apply. 9
(2) A person conducting a business or undertaking must, if asked 10
by a worker, negotiate with the worker's representative in 11
negotiations under this section (including negotiations for a 12
variation of an agreement) and must not exclude the 13
representative from those negotiations. 14
Maximum penalty--100 penalty units. 15
(3) If agreement can not be reached on a matter relating to the 16
determination of a work group (or a variation of an 17
agreement) within a reasonable time after negotiations 18
commence under this subdivision, any party to the 19
negotiations may ask the regulator to appoint an inspector to 20
assist the negotiations in relation to that matter. 21
(4) A regulation may prescribe the matters that must be taken into 22
account in negotiations for and determination of work groups 23
and variations of agreements. 24
57 Notice to workers 25
(1) A person conducting a business or undertaking involved in 26
negotiations to determine a work group must, as soon as 27
practicable after the negotiations are completed, notify the 28
workers of the outcome of the negotiations and of any work 29
groups determined by agreement. 30
Maximum penalty--20 penalty units. 31
(2) A person conducting a business or undertaking involved in 32
negotiations for the variation of an agreement concerning the 33
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Part 5 Consultation, representation and participation
[s 58]
determination of a work group or groups must, as soon as 1
practicable after the negotiations are completed, notify the 2
workers of the outcome of the negotiations and of the 3
variation (if any) to the agreement. 4
Maximum penalty--20 penalty units. 5
58 Withdrawal from negotiations or agreement involving 6
multiple businesses 7
(1) A party to a negotiation for an agreement, or to an agreement, 8
concerning a work group under this subdivision may 9
withdraw from the negotiation or agreement at any time by 10
giving reasonable notice (in writing) to the other parties. 11
(2) If a party withdraws from an agreement concerning a work 12
group under this subdivision-- 13
(a) the other parties must negotiate a variation to the 14
agreement under section 56; and 15
(b) the withdrawal does not affect the validity of the 16
agreement between the other parties in the meantime. 17
59 Effect of subdivision on other arrangements 18
To remove doubt, it is declared that, nothing in this 19
subdivision affects the capacity of 2 or more persons 20
conducting businesses or undertakings and their workers to 21
enter into other agreements or make other arrangements, in 22
addition to complying with this part, concerning the 23
representation of those workers. 24
Subdivision 4 Election of health and safety 25
representatives 26
60 Eligibility to be elected 27
A worker is-- 28
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[s 61]
(a) eligible to be elected as a health and safety 1
representative for a work group only if he or she is a 2
member of that work group; and 3
(b) not eligible to be elected as a health and safety 4
representative if he or she is disqualified under section 5
65 from being a health and safety representative. 6
61 Procedure for election of health and safety 7
representatives 8
(1) The workers in a work group may determine how an election 9
of a health and safety representative for the work group is to 10
be conducted. 11
(2) However, an election must comply with the procedures (if 12
any) prescribed under a regulation. 13
(3) If a majority of the workers in a work group so determine, the 14
election may be conducted with the assistance of a union or 15
other person or organisation. 16
(4) The person conducting the business or undertaking to which 17
the work group relates must provide any resources, facilities 18
and assistance that are reasonably necessary or are prescribed 19
under a regulation to enable elections to be conducted. 20
Maximum penalty--100 penalty units. 21
62 Eligibility to vote 22
(1) A health and safety representative for a work group is to be 23
elected by members of that work group. 24
(2) All workers in a work group are entitled to vote for the 25
election of a health and safety representative for that work 26
group. 27
63 When election not required 28
If the number of candidates for election as a health and safety 29
representative for a work group equals the number of 30
vacancies, the election need not be conducted and each 31
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[s 64]
candidate is to be taken to have been elected as a health and 1
safety representative for the work group. 2
64 Term of office of health and safety representative 3
(1) A health and safety representative for a work group holds 4
office for 3 years. 5
(2) However a person ceases to hold office as a health and safety 6
representative for a work group if-- 7
(a) the person resigns as a health and safety representative 8
for the work group by written notice given to the person 9
conducting the relevant business or undertaking; or 10
(b) the person ceases to be a worker in the work group for 11
which he or she was elected as a health and safety 12
representative; or 13
(c) the person is disqualified under section 65 from acting 14
as a health and safety representative; or 15
(d) the person is removed from that position by a majority 16
of the members of the work group under a regulation. 17
(3) A health and safety representative is eligible for re-election. 18
65 Disqualification of health and safety representatives 19
(1) An application may be made to the commission to disqualify a 20
health and safety representative on the ground that the 21
representative has-- 22
(a) exercised a power or performed a function as a health 23
and safety representative for an improper purpose; or 24
(b) used or disclosed any information he or she acquired as 25
a health and safety representative for a purpose other 26
than in connection with the role of health and safety 27
representative. 28
(2) The following persons may make an application under this 29
section-- 30
(a) any person adversely affected by-- 31
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[s 66]
(i) the exercise of a power or the performance of a 1
function mentioned in subsection (1)(a); or 2
(ii) the use or disclosure of information mentioned in 3
subsection (1)(b); 4
(b) the regulator. 5
(3) If the commission is satisfied that a ground in subsection (1) is 6
made out, the commission may disqualify the health and 7
safety representative for a stated period or indefinitely. 8
(4) A person dissatisfied with the decision of the commission 9
may appeal under the Industrial Relations Act 1999, chapter 10
9. 11
Note-- 12
See the Industrial Relations Act 1999, sections 341(1) and 342(6). 13
66 Immunity of health and safety representatives 14
A health and safety representative is not personally liable for 15
anything done or omitted to be done in good faith-- 16
(a) in exercising a power or performing a function under 17
this Act; or 18
(b) in the reasonable belief that the thing was done or 19
omitted to be done in the exercise of a power or the 20
performance of a function under this Act. 21
67 Deputy health and safety representatives 22
(1) Each deputy health and safety representative for a work group 23
is to be elected in the same way as a health and safety 24
representative for the work group. 25
(2) If the health and safety representative for a work group ceases 26
to hold office or is unable (because of absence or any other 27
reason) to exercise the powers or perform the functions of a 28
health and safety representative under this Act-- 29
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(a) the powers and functions may be exercised or performed 1
by a deputy health and safety representative for the work 2
group; and 3
(b) this Act applies in relation to the deputy health and 4
safety representative as if he or she were the health and 5
safety representative. 6
(3) Sections 64, 65, 66, 72 and 73 apply to deputy health and 7
safety representatives in the same way as they apply to health 8
and safety representatives. 9
Subdivision 4A Disqualification process 10
67A Definition for subdivision 11
In this subdivision-- 12
applicant means-- 13
(a) if the application under section 65 is made by the 14
regulator--the regulator; or 15
(b) if the application under section 65 is made by a person 16
other than the regulator--the person and the regulator. 17
Note-- 18
In relation to the numbering of this subdivision, see the note to section 19
3. 20
67B Application of subdivision 21
This subdivision applies for the purpose of an application to 22
the commission under section 65 to disqualify a health and 23
safety representative. 24
67C Decision on application may be given on the papers or at 25
a hearing 26
The commission may decide whether or not to take action on 27
the application entirely or partly from a consideration of the 28
documents filed. 29
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67D Applications decided on the papers 1
(1) This section applies if the commission decides to decide the 2
application after a consideration of the documents filed and 3
without a hearing. 4
(2) The commission must give the applicant and the 5
representative a written notice stating-- 6
(a) the commission is considering whether to disqualify the 7
representative for a period or indefinitely (the proposed 8
action); and 9
(b) the reason for the proposed action; and 10
(c) if the proposed action is disqualification for a 11
period--the proposed suspension period; and 12
(d) an invitation-- 13
(i) to the representative to show in writing, within a 14
stated time of at least 14 days after the date of the 15
notice, why the proposed action should not be 16
taken; and 17
(ii) to the applicant to comment in writing, within a 18
stated time of at least 14 days after the date of the 19
notice, on the appropriateness of the proposed 20
action. 21
(3) The commission may take action under section 65(3) after 22
considering all documents filed in the application and all 23
written submissions made within the time allowed under 24
subsection (2)(d). 25
(4) Under section 65(3), the commission may-- 26
(a) if the proposed action is to disqualify the representative 27
for a period--disqualify the representative for a stated 28
period that is no longer than the proposed 29
disqualification period; or 30
(b) if the proposed action is to disqualify the representative 31
for an indefinite period--disqualify the representative 32
indefinitely or for a period. 33
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67E Applications decided at a hearing 1
(1) This section applies if the commission decides to decide the 2
application at a hearing. 3
(2) The commission must give the applicant and the 4
representative at least 14 days notice of the hearing date. 5
(3) To the extent practicable, the hearing is to be conducted under 6
the rules applying to hearings of the commission under the 7
Industrial Relations Act 1999 with necessary changes or, if 8
the rules make no provision or insufficient provision, in 9
accordance with directions of the commission. 10
(4) The commission may take action under section 65(3) after 11
considering the evidence and submissions in relation to the 12
application. 13
(5) The commission may-- 14
(a) disqualify the representative for a stated period; or 15
(b) disqualify the representative indefinitely. 16
67F Notice of decision 17
The commission must give the applicant and the 18
representative a written notice stating-- 19
(a) the decision; and 20
(b) the reasons for the decision; and 21
(c) that the applicant or the representative may appeal 22
against the decision under the Industrial Relations Act 23
1999, chapter 9. 24
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Subdivision 5 Powers and functions of health and 1
safety representatives 2
68 Powers and functions of health and safety 3
representatives 4
(1) The powers and functions of a health and safety representative 5
for a work group are-- 6
(a) to represent the workers in the work group in matters 7
relating to work health and safety; and 8
(b) to monitor the measures taken by the person conducting 9
the relevant business or undertaking or that person's 10
representative in compliance with this Act in relation to 11
workers in the work group; and 12
(c) to investigate complaints from members of the work 13
group relating to work health and safety; and 14
(d) to inquire into anything that appears to be a risk to the 15
health or safety of workers in the work group, arising 16
from the conduct of the business or undertaking. 17
(2) In exercising a power or performing a function, the health and 18
safety representative may-- 19
(a) inspect the workplace or any part of the workplace at 20
which a worker in the work group works-- 21
(i) at any time after giving reasonable notice to the 22
person conducting the business or undertaking at 23
that workplace; and 24
(ii) at any time, without notice, in the event of an 25
incident, or any situation involving a serious risk to 26
the health or safety of a person emanating from an 27
immediate or imminent exposure to a hazard; and 28
(b) accompany an inspector during an inspection of the 29
workplace or part of the workplace at which a worker in 30
the work group works; and 31
(c) with the consent of a worker that the health and safety 32
representative represents, be present at an interview 33
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concerning work health and safety between the worker 1
and-- 2
(i) an inspector; or 3
(ii) the person conducting the business or undertaking 4
at that workplace or the person's representative; 5
and 6
(d) with the consent of 1 or more workers that the health 7
and safety representative represents, be present at an 8
interview concerning work health and safety between a 9
group of workers, which includes the workers who gave 10
the consent, and-- 11
(i) an inspector; or 12
(ii) the person conducting the business or undertaking 13
at that workplace or the person's representative; 14
and 15
(e) request the establishment of a health and safety 16
committee; and 17
(f) receive information concerning the work health and 18
safety of workers in the work group; and 19
(g) whenever necessary, request the assistance of any 20
person. 21
Note-- 22
A health and safety representative also has a power under division 6 to 23
direct work to cease in certain circumstances and under division 7 to 24
issue provisional improvement notices. 25
(3) Despite subsection (2)(f), a health and safety representative is 26
not entitled to have access to any personal or medical 27
information concerning a worker without the worker's consent 28
unless the information is in a form that-- 29
(a) does not identify the worker; and 30
(b) could not reasonably be expected to lead to the 31
identification of the worker. 32
(4) Nothing in this Act imposes or is taken to impose a duty on a 33
health and safety representative in that capacity. 34
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69 Powers and functions generally limited to the particular 1
work group 2
(1) A health and safety representative for a work group may 3
exercise powers and perform functions under this Act only in 4
relation to matters that affect, or may affect, workers in that 5
group. 6
(2) Subsection (1) does not apply if-- 7
(a) there is a serious risk to health or safety emanating from 8
an immediate or imminent exposure to a hazard that 9
affects or may affect a member of another work group; 10
or 11
(b) a member of another work group asks for the 12
representative's assistance; 13
and the health and safety representative (and any deputy 14
health and safety representative) for that other work group is 15
found, after reasonable inquiry, to be unavailable. 16
(3) In this section, another work group means another work 17
group of workers carrying out work for a business or 18
undertaking to which the work group that the health and 19
safety representative represents relates. 20
Subdivision 6 Obligations of person conducting 21
business or undertaking to health 22
and safety representatives 23
70 General obligations of person conducting business or 24
undertaking 25
(1) The person conducting a business or undertaking must-- 26
(a) consult, so far as is reasonably practicable, on work 27
health and safety matters with any health and safety 28
representative for a work group of workers carrying out 29
work for the business or undertaking; and 30
(b) confer with a health and safety representative for a work 31
group, whenever reasonably requested by the 32
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representative, for the purpose of ensuring the health 1
and safety of the workers in the work group; and 2
(c) allow any health and safety representative for the work 3
group to have access to information that the person has 4
relating to-- 5
(i) hazards (including associated risks) at the 6
workplace affecting workers in the work group; 7
and 8
(ii) the health and safety of the workers in the work 9
group; and 10
(d) with the consent of a worker that the health and safety 11
representative represents, allow the health and safety 12
representative to be present at an interview concerning 13
work health and safety between the worker and-- 14
(i) an inspector; or 15
(ii) the person conducting the business or undertaking 16
at that workplace or the person's representative; 17
and 18
(e) with the consent of 1 or more workers that the health 19
and safety representative represents, allow the health 20
and safety representative to be present at an interview 21
concerning work health and safety between a group of 22
workers, which includes the workers who gave the 23
consent, and-- 24
(i) an inspector; or 25
(ii) the person conducting the business or undertaking 26
at that workplace or the person's representative; 27
and 28
(f) provide any resources, facilities and assistance to a 29
health and safety representative for the work group that 30
are reasonably necessary or prescribed under a 31
regulation to enable the representative to exercise his or 32
her powers or perform his or her functions under this 33
Act; and 34
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(g) allow a person assisting a health and safety 1
representative for the work group to have access to the 2
workplace if that is necessary to enable the assistance to 3
be provided; and 4
(h) permit a health and safety representative for the work 5
group to accompany an inspector during an inspection 6
of any part of the workplace where a worker in the work 7
group works; and 8
(i) provide any other assistance to the health and safety 9
representative for the work group that may be required 10
under a regulation. 11
Maximum penalty--100 penalty units. 12
(2) The person conducting a business or undertaking must allow a 13
health and safety representative to spend the time reasonably 14
necessary to exercise his or her powers and perform his or her 15
functions under this Act. 16
Maximum penalty--100 penalty units. 17
(3) Any time that a health and safety representative spends for the 18
purposes of exercising his or her powers or performing his or 19
her functions under this Act must be with the pay that he or 20
she would otherwise be entitled to receive for performing his 21
or her normal duties during that period. 22
71 Exceptions from obligations under s 70(1) 23
(1) This section applies despite section 70(1). 24
(2) The person conducting a business or undertaking must not 25
allow a health and safety representative to have access to any 26
personal or medical information concerning a worker without 27
the worker's consent unless the information is in a form that-- 28
(a) does not identify the worker; and 29
(b) could not reasonably be expected to lead to the 30
identification of the worker. 31
Maximum penalty--100 penalty units. 32
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(3) The person conducting a business or undertaking is not 1
required to give financial assistance to a health and safety 2
representative for the purpose of the assistance mentioned in 3
section 70(1)(f). 4
(4) The person conducting a business or undertaking is not 5
required to allow a person assisting a health and safety 6
representative for a work group to have access to the 7
workplace-- 8
(a) if the assistant has had his or her WHS entry permit 9
revoked; or 10
(b) during any period that the assistant's WHS entry permit 11
is suspended or the assistant is disqualified from holding 12
a WHS entry permit. 13
(5) The person conducting a business or undertaking may refuse 14
on reasonable grounds to grant access to the workplace to a 15
person assisting a health and safety representative for a work 16
group. 17
(6) If access is refused to a person assisting a health and safety 18
representative under subsection (5), the health and safety 19
representative may ask the regulator to appoint an inspector to 20
assist in resolving the matter. 21
72 Obligation to train health and safety representatives 22
(1) The person conducting a business or undertaking must, if 23
requested by a health and safety representative for a work 24
group for that business or undertaking, allow the health and 25
safety representative to attend a course of training in work 26
health and safety that is-- 27
(a) approved by the regulator; and 28
(b) a course that the health and safety representative is 29
entitled under a regulation to attend; and 30
(c) subject to subsection (5), chosen by the health and 31
safety representative, in consultation with the person 32
conducting the business or undertaking. 33
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(2) The person conducting the business or undertaking must-- 1
(a) as soon as practicable within the period of 3 months 2
after the request is made, allow the health and safety 3
representative time off work to attend the course of 4
training; and 5
(b) pay the course fees and any other reasonable costs 6
associated with the health and safety representative's 7
attendance at the course of training. 8
(3) If-- 9
(a) a health and safety representative represents a work 10
group of the workers of more than 1 business or 11
undertaking; and 12
(b) the person conducting any of those businesses or 13
undertakings has complied with this section in relation 14
to the representative; 15
each of the persons conducting those businesses or 16
undertakings is to be taken to have complied with this section 17
in relation to the representative. 18
(4) Any time that a health and safety representative is given off 19
work to attend the course of training must be with the pay that 20
he or she would otherwise be entitled to receive for 21
performing his or her normal duties during that period. 22
(5) If agreement can not be reached between the person 23
conducting the business or undertaking and the health and 24
safety representative within the time required by subsection 25
(2) as to the matters set out in subsections (1)(c) and (2), 26
either party may ask the regulator to appoint an inspector to 27
decide the matter. 28
(6) The inspector may decide the matter under this section. 29
(7) A person conducting a business or undertaking must allow a 30
health and safety representative to attend a course decided by 31
the inspector and pay the costs decided by the inspector under 32
subsection (6). 33
Maximum penalty--100 penalty units. 34
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73 Obligation to share costs if multiple businesses or 1
undertakings 2
(1) If a health and safety representative, or deputy health and 3
safety representative (if any), represents a work group of 4
workers carrying out work for 2 or more persons conducting 5
businesses or undertakings-- 6
(a) the costs of the representative exercising powers and 7
performing functions under this Act; and 8
(b) the costs mentioned in section 72(2)(b); 9
for which any of the persons conducting those businesses or 10
undertakings are liable must be apportioned equally between 11
each of those persons unless they agree otherwise. 12
(2) An agreement to apportion the costs in another way may be 13
varied at any time by negotiation and agreement between each 14
of the persons conducting the businesses or undertakings. 15
74 List of health and safety representatives 16
(1) A person conducting a business or undertaking must ensure 17
that-- 18
(a) a list of each health and safety representative and deputy 19
health and safety representative (if any) for each work 20
group of workers carrying out work for the business or 21
undertaking is prepared and kept up to date; and 22
(b) a copy of the up-to-date list is displayed-- 23
(i) at the principal place of business of the business or 24
undertaking; and 25
(ii) at any other workplace that is appropriate taking 26
into account the constitution of the relevant work 27
group or work groups; 28
in a way that is readily accessible to workers in the relevant 29
work group or work groups. 30
Maximum penalty--20 penalty units. 31
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(2) A person conducting a business or undertaking must provide a 1
copy of the up-to-date list prepared under subsection (1) to the 2
regulator as soon as practicable after it is prepared. 3
Maximum penalty--20 penalty units. 4
Division 4 Health and safety committees 5
75 Health and safety committees 6
(1) The person conducting a business or undertaking at a 7
workplace must establish a health and safety committee for 8
the business or undertaking or part of the business or 9
undertaking-- 10
(a) within 2 months after being requested to do so by-- 11
(i) a health and safety representative for a work group 12
of workers carrying out work at that workplace; or 13
(ii) 5 or more workers at that workplace; or 14
(b) if required under a regulation to do so, within the time 15
prescribed under a regulation. 16
Maximum penalty--50 penalty units. 17
(2) A person conducting a business or undertaking at a workplace 18
may establish a health and safety committee for the workplace 19
or part of the workplace on the person's own initiative. 20
Note-- 21
If a health and safety committee is not required to be established, other 22
consultation procedures can be established for a workplace--see 23
division 2. 24
76 Constitution of committee 25
(1) Subject to subsections (2) to (4), the constitution of a health 26
and safety committee may be agreed between the person 27
conducting the business or undertaking and the workers at the 28
workplace. 29
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(2) If there is a health and safety representative at a workplace, 1
that representative, if he or she consents, is a member of the 2
committee. 3
(3) If there are 2 or more health and safety representatives at a 4
workplace, those representatives may choose 1 or more of 5
their number (who consent) to be members of the committee. 6
(4) At least half of the members of the committee must be 7
workers who are not nominated by the person conducting the 8
business or undertaking. 9
(5) If agreement is not reached under this section within a 10
reasonable time, any party may ask the regulator to appoint an 11
inspector to decide the matter. 12
(6) An inspector appointed on a request under subsection (5) may 13
decide the constitution of the health and safety committee or 14
that the committee should not be established. 15
(7) A decision of an inspector under this section is taken to be an 16
agreement under this section between the parties. 17
77 Functions of committee 18
The functions of a health and safety committee are-- 19
(a) to facilitate cooperation between the person conducting 20
a business or undertaking and workers in instigating, 21
developing and carrying out measures designed to 22
ensure the workers' health and safety at work; and 23
(b) to assist in developing standards, rules and procedures 24
relating to health and safety that are to be followed or 25
complied with at the workplace; and 26
(c) any other functions prescribed under a regulation or 27
agreed between the person conducting the business or 28
undertaking and the committee. 29
78 Meetings of committee 30
A health and safety committee must meet-- 31
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(a) at least once every 3 months; and 1
(b) at any reasonable time at the request of at least half of 2
the members of the committee. 3
79 Duties of person conducting business or undertaking 4
(1) The person conducting a business or undertaking must allow 5
each member of the health and safety committee to spend the 6
time that is reasonably necessary to attend meetings of the 7
committee or to carry out functions as a member of the 8
committee. 9
Maximum penalty--100 penalty units. 10
(2) Any time that a member of a health and safety committee 11
spends for the purposes set out in subsection (1) must be with 12
the pay that he or she would otherwise be entitled to receive 13
for performing his or her normal duties during that period. 14
(3) The person conducting a business or undertaking must allow 15
the health and safety committee for a workplace to have 16
access to information that the person has relating to-- 17
(a) hazards (including associated risks) at the workplace; 18
and 19
(b) the health and safety of the workers at the workplace. 20
Maximum penalty--100 penalty units. 21
(4) Despite subsection (3), the person conducting a business or 22
undertaking must not allow the health and safety committee to 23
have access to any personal or medical information 24
concerning a worker without the worker's consent unless the 25
information is in a form that-- 26
(a) does not identify the worker; and 27
(b) could not reasonably be expected to lead to the 28
identification of the worker. 29
Maximum penalty--100 penalty units. 30
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Division 5 Issue resolution 1
80 Parties to an issue 2
(1) In this division, parties, in relation to an issue, means the 3
following-- 4
(a) the person conducting the business or undertaking or the 5
person's representative; 6
(b) if the issue involves more than 1 business or 7
undertaking, the person conducting each business or 8
undertaking or the person's representative; 9
(c) if the worker or workers affected by the issue are in a 10
work group, the health and safety representative for that 11
work group or his or her representative; 12
(d) if the worker or workers affected by the issue are not in 13
a work group, the worker or workers or their 14
representative. 15
(2) A person conducting a business or undertaking must ensure 16
that the person's representative (if any) for the purposes of this 17
division-- 18
(a) is not a health and safety representative; and 19
(b) has an appropriate level of seniority, and is sufficiently 20
competent, to act as the person's representative. 21
81 Resolution of health and safety issues 22
(1) This section applies if a matter about work health and safety 23
arises at a workplace or from the conduct of a business or 24
undertaking and the matter is not resolved after discussion 25
between the parties to the issue. 26
(2) The parties must make reasonable efforts to achieve a timely, 27
final and effective resolution of the issue in accordance with 28
the relevant agreed procedure, or if there is no agreed 29
procedure, the default procedure prescribed under a 30
regulation. 31
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(3) A representative of a party to an issue may enter the 1
workplace for the purpose of attending discussions with a 2
view to resolving the issue. 3
82 Referral of issue to regulator for resolution by inspector 4
(1) This section applies if an issue has not been resolved after 5
reasonable efforts have been made to achieve an effective 6
resolution of the issue. 7
(2) A party to the issue may ask the regulator to appoint an 8
inspector to attend the workplace to assist in resolving the 9
issue. 10
(3) A request to the regulator under this section does not 11
prevent-- 12
(a) a worker from exercising the right under division 6 to 13
cease work; or 14
(b) a health and safety representative from issuing a 15
provisional improvement notice or a direction under 16
division 6 to cease work. 17
(4) On attending a workplace under this section, an inspector may 18
exercise any of the inspector's compliance powers under this 19
Act in relation to the workplace. 20
Division 6 Right to cease or direct cessation of 21
unsafe work 22
83 Definition of cease work under this division 23
In this division, cease work under this division means-- 24
(a) to cease, or refuse, to carry out work under section 84; 25
or 26
(b) to cease work on a direction under section 85. 27
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84 Right of worker to cease unsafe work 1
A worker may cease, or refuse to carry out, work if the worker 2
has a reasonable concern that to carry out the work would 3
expose the worker to a serious risk to the worker's health or 4
safety, emanating from an immediate or imminent exposure to 5
a hazard. 6
85 Health and safety representative may direct that unsafe 7
work cease 8
(1) A health and safety representative may direct a worker who is 9
in a work group represented by the representative to cease 10
work if the representative has a reasonable concern that to 11
carry out the work would expose the worker to a serious risk 12
to the worker's health or safety, emanating from an immediate 13
or imminent exposure to a hazard. 14
(2) However, the health and safety representative must not give a 15
worker a direction to cease work unless the matter is not 16
resolved after-- 17
(a) consulting about the matter with the person conducting 18
the business or undertaking for whom the workers are 19
carrying out work; and 20
(b) attempting to resolve the matter as an issue under 21
division 5. 22
(3) The health and safety representative may direct the worker to 23
cease work without carrying out that consultation or 24
attempting to resolve the matter as an issue under division 5 if 25
the risk is so serious and immediate or imminent that it is not 26
reasonable to consult before giving the direction. 27
(4) The health and safety representative must carry out the 28
consultation as soon as practicable after giving a direction 29
under subsection (3). 30
(5) The health and safety representative must inform the person 31
conducting the business or undertaking of any direction given 32
by the health and safety representative to workers under this 33
section. 34
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(6) A health and safety representative can not give a direction 1
under this section unless the representative has-- 2
(a) completed initial training prescribed under a regulation 3
mentioned in section 72(1)(b); or 4
(b) previously completed that training when acting as a 5
health and safety representative for another work group; 6
or 7
(c) completed training equivalent to that training under a 8
corresponding WHS law. 9
86 Worker to notify if ceases work 10
A worker who ceases work under this division must-- 11
(a) as soon as practicable, notify the person conducting the 12
business or undertaking that the worker has ceased work 13
under this division unless the worker ceased work under 14
a direction from a health and safety representative; and 15
(b) remain available to carry out suitable alternative work. 16
87 Alternative work 17
If a worker ceases work under this division, the person 18
conducting the business or undertaking may direct the worker 19
to carry out suitable alternative work at the same or another 20
workplace if that work is safe and appropriate for the worker 21
to carry out until the worker can resume normal duties. 22
88 Continuity of engagement of worker 23
If a worker ceases work under this division, that action does 24
not affect the continuity of engagement of the worker for 25
prescribed purposes if the worker has not unreasonably failed 26
to comply with a direction to carry out suitable alternative 27
work-- 28
(a) at the same or another workplace; and 29
(b) that was safe and appropriate for the worker to carry out. 30
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89 Request to regulator to appoint inspector to assist 1
The health and safety representative or the person conducting 2
the business or undertaking or the worker may ask the 3
regulator to appoint an inspector to attend the workplace to 4
assist in resolving an issue arising in relation to the cessation 5
of work. 6
Note-- 7
The issue resolution procedures in division 5 can also be used to resolve 8
an issue arising in relation to the cessation of work. 9
Division 7 Provisional improvement notices 10
90 Provisional improvement notices 11
(1) This section applies if a health and safety representative 12
reasonably believes that a person-- 13
(a) is contravening a provision of this Act; or 14
(b) has contravened a provision of this Act in circumstances 15
that make it likely that the contravention will continue 16
or be repeated. 17
(2) The health and safety representative may issue a provisional 18
improvement notice requiring the person to-- 19
(a) remedy the contravention; or 20
(b) prevent a likely contravention from occurring; or 21
(c) remedy the things or operations causing the 22
contravention or likely contravention. 23
(3) However, the health and safety representative must not issue a 24
provisional improvement notice to a person unless he or she 25
has first consulted the person. 26
(4) A health and safety representative can not issue a provisional 27
improvement notice unless the representative has-- 28
(a) completed initial training prescribed under a regulation 29
mentioned in section 72(1)(b); or 30
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Part 5 Consultation, representation and participation
[s 91]
(b) previously completed that training when acting as a 1
health and safety representative for another work group; 2
or 3
(c) completed training equivalent to that training under a 4
corresponding WHS law. 5
(5) A health and safety representative can not issue a provisional 6
improvement notice in relation to a matter if an inspector has 7
already issued (or decided not to issue) an improvement 8
notice or prohibition notice in relation to the same matter. 9
91 Provisional improvement notice to be in writing 10
A provisional improvement notice must be in writing. 11
92 Contents of provisional improvement notice 12
A provisional improvement notice must state-- 13
(a) that the health and safety representative believes the 14
person-- 15
(i) is contravening a provision of this Act; or 16
(ii) has contravened a provision of this Act in 17
circumstances that make it likely that the 18
contravention will continue or be repeated; and 19
(b) the provision the representative believes is being, or has 20
been, contravened; and 21
(c) briefly, how the provision is being, or has been 22
contravened; and 23
(d) the day, at least 8 days after the notice is issued, by 24
which the person is required to remedy the 25
contravention or likely contravention. 26
93 Provisional improvement notice may give directions to 27
remedy contravention 28
(1) A provisional improvement notice may include directions 29
concerning the measures to be taken to remedy the 30
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[s 94]
contravention or prevent the likely contravention or the 1
matters or activities causing the contravention or likely 2
contravention to which the notice relates. 3
(2) A direction included in a provisional improvement notice 4
may-- 5
(a) refer to a code of practice; and 6
(b) offer the person to whom it is issued a choice of ways in 7
which to remedy the contravention. 8
94 Minor changes to provisional improvement notice 9
A health and safety representative may make minor changes 10
to a provisional improvement notice-- 11
(a) for clarification; or 12
(b) to correct errors or references; or 13
(c) to reflect changes of address or other circumstances. 14
95 Issue of provisional improvement notice 15
A provisional improvement notice may be issued to a person 16
under section 209. 17
96 Health and safety representative may cancel notice 18
The health and safety representative may at any time cancel a 19
provisional improvement notice issued to a person by written 20
notice given to that person. 21
97 Display of provisional improvement notice 22
(1) A person to whom a provisional improvement notice is issued 23
must as soon as practicable display a copy of the notice in a 24
prominent place at or near the workplace, or part of the 25
workplace, at which work is being carried out that is affected 26
by the notice. 27
Maximum penalty--50 penalty units. 28
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[s 98]
(2) A person must not intentionally remove, destroy, damage or 1
deface a notice displayed under subsection (1) during the 2
period that the notice is in force. 3
Maximum penalty--50 penalty units. 4
98 Formal irregularities or defects in notice 5
A provisional improvement notice is not invalid only because 6
of-- 7
(a) a formal defect or irregularity in the notice unless the 8
defect or irregularity causes or is likely to cause 9
substantial injustice; or 10
(b) a failure to use the correct name of the person to whom 11
the notice is issued if the notice sufficiently identifies 12
the person. 13
99 Offence to contravene a provisional improvement notice 14
(1) This section applies if a provisional improvement notice has 15
been issued to a person and an inspector has not been required 16
under section 101 to attend at the workplace. 17
(2) The person must comply with the provisional improvement 18
notice within the time stated in the notice. 19
Maximum penalty--500 penalty units. 20
100 Request for review of provisional improvement notice 21
(1) Within 7 days after a provisional improvement notice is issued 22
to a person-- 23
(a) the person to whom it was issued; or 24
(b) if the person is a worker, the person conducting the 25
business or undertaking at the workplace at which the 26
worker carries out work; 27
may ask the regulator to appoint an inspector to review the 28
notice. 29
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[s 101]
(2) If a request is made under subsection (1), the operation of the 1
provisional improvement notice is stayed until the inspector 2
makes a decision on the review. 3
101 Regulator to appoint inspector to review notice 4
(1) The regulator must ensure that an inspector attends the 5
workplace as soon as practicable after a request is made under 6
section 100. 7
(2) The inspector must review the provisional improvement 8
notice and inquire into the circumstances that are the subject 9
of the provisional improvement notice. 10
(3) An inspector may review a provisional improvement notice 11
even if the period for compliance with the notice has expired. 12
102 Decision of inspector on review of provisional 13
improvement notice 14
(1) After reviewing the provisional improvement notice, the 15
inspector must-- 16
(a) confirm the provisional improvement notice; or 17
(b) confirm the provisional improvement notice with 18
changes; or 19
(c) cancel the provisional improvement notice. 20
(2) The inspector must give a copy of his or her decision to-- 21
(a) the applicant for the review of the provisional 22
improvement notice; and 23
(b) the health and safety representative who issued the 24
notice. 25
(3) A provisional improvement notice that is confirmed (with or 26
without changes) by an inspector is taken to be an 27
improvement notice issued by the inspector under this Act. 28
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Part 6 Discriminatory, coercive and misleading conduct
[s 103]
Division 8 Part not to apply to prisoners and 1
detainees 2
103 Part does not apply to prisoners and detainees 3
Nothing in this part applies to a worker who is-- 4
(a) under the Corrective Services Act 2006, a prisoner 5
detained in a corrective services facility; or 6
(b) under the Youth Justice Act 1992, a person detained in a 7
detention centre; or 8
(c) under the Police Powers and Responsibilities Act 2000, 9
a person in custody in a watch-house. 10
Part 6 Discriminatory, coercive and 11
misleading conduct 12
Division 1 Prohibition of discriminatory, 13
coercive or misleading conduct 14
104 Prohibition of discriminatory conduct 15
(1) A person must not engage in discriminatory conduct for a 16
prohibited reason. 17
Maximum penalty--1000 penalty units. 18
(2) A person commits an offence under subsection (1) only if the 19
reason mentioned in section 106 was the dominant reason for 20
the discriminatory conduct. 21
Note-- 22
Civil proceedings may be taken under division 3 in relation to 23
discriminatory conduct engaged in for a prohibited reason. 24
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Part 6 Discriminatory, coercive and misleading conduct
[s 105]
105 What is discriminatory conduct 1
(1) For this part, a person engages in discriminatory conduct if-- 2
(a) the person-- 3
(i) dismisses a worker; or 4
(ii) terminates a contract for services with a worker; or 5
(iii) puts a worker to his or her detriment in the 6
engagement of the worker; or 7
(iv) alters the position of a worker to the worker's 8
detriment; or 9
(b) the person-- 10
(i) refuses or fails to offer to engage a prospective 11
worker; or 12
(ii) treats a prospective worker less favourably than 13
another prospective worker would be treated in 14
offering terms of engagement; or 15
(c) the person terminates a commercial arrangement with 16
another person; or 17
(d) the person refuses or fails to enter into a commercial 18
arrangement with another person. 19
(2) For this part, a person also engages in discriminatory conduct 20
if the person organises to take any action mentioned in 21
subsection (1) or threatens to organise or take that action. 22
106 What is a prohibited reason 23
Conduct mentioned in section 105 is engaged in for a 24
prohibited reason if it is engaged in because the worker or 25
prospective worker or the person mentioned in section 26
105(1)(c) or (d) (as the case requires)-- 27
(a) is, has been or proposes to be a health and safety 28
representative or a member of a health and safety 29
committee; or 30
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Part 6 Discriminatory, coercive and misleading conduct
[s 106]
(b) undertakes, has undertaken or proposes to undertake 1
another role under this Act; or 2
(c) exercises a power or performs a function or has 3
exercised a power or performed a function or proposes 4
to exercise a power or perform a function as a health and 5
safety representative or as a member of a health and 6
safety committee; or 7
(d) exercises, has exercised or proposes to exercise a power 8
under this Act or exercises, has exercised or proposes to 9
exercise a power under this Act in a particular way; or 10
(e) performs, has performed or proposes to perform a 11
function under this Act or performs, has performed or 12
proposes to perform a function under this Act in a 13
particular way; or 14
(f) refrains from, has refrained from or proposes to refrain 15
from exercising a power or performing a function under 16
this Act or refrains from, has refrained from or proposes 17
to refrain from exercising a power or performing a 18
function under this Act in a particular way; or 19
(g) assists or has assisted or proposes to assist, or gives or 20
has given or proposes to give any information to any 21
person exercising a power or performing a function 22
under this Act; or 23
(h) raises or has raised or proposes to raise an issue or 24
concern about work health and safety with-- 25
(i) the person conducting a business or undertaking; 26
or 27
(ii) an inspector; or 28
(iii) a WHS entry permit holder; or 29
(iv) a health and safety representative; or 30
(v) a member of a health and safety committee; or 31
(vi) another worker; or 32
(vii) any other person who has a duty under this Act in 33
relation to the matter; or 34
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Part 6 Discriminatory, coercive and misleading conduct
[s 107]
(viii) any other person exercising a power or performing 1
a function under this Act; or 2
(i) is involved in, has been involved in or proposes to be 3
involved in resolving a work health and safety issue 4
under this Act; or 5
(j) is taking action, has taken action or proposes to take 6
action to seek compliance by any person with any duty 7
or obligation under this Act. 8
107 Prohibition of requesting, instructing, inducing, 9
encouraging, authorising or assisting discriminatory 10
conduct 11
A person must not request, instruct, induce, encourage, 12
authorise or assist another person to engage in discriminatory 13
conduct in contravention of section 104. 14
Maximum penalty--1000 penalty units. 15
Note-- 16
Civil proceedings may be taken under division 3 if a person requested, 17
instructed, induced, encouraged, authorised or assisted another person 18
to engage in discriminatory conduct for a prohibited reason. 19
108 Prohibition of coercion or inducement 20
(1) A person must not organise or take, or threaten to organise or 21
take, any action against another person with intent to coerce or 22
induce the other person, or a third person-- 23
(a) to exercise or not to exercise a power, or to propose to 24
exercise or not to exercise a power, under this Act; or 25
(b) to perform or not to perform a function, or to propose to 26
perform or not to perform a function, under this Act; or 27
(c) to exercise or not to exercise a power or perform a 28
function, or to propose to exercise or not to exercise a 29
power or perform a function, in a particular way; or 30
(d) to refrain from seeking, or continuing to undertake, a 31
role under this Act. 32
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Part 6 Discriminatory, coercive and misleading conduct
[s 109]
Maximum penalty--1000 penalty units. 1
Note-- 2
Civil proceedings may be taken under division 3 in relation to a 3
contravention of this section. 4
(2) In this section, a reference to taking action or threatening to 5
take action against a person includes a reference to not taking 6
a particular action or threatening not to take a particular action 7
in relation to that person. 8
(3) To remove doubt it is declared that, a reasonable direction 9
given by an emergency services worker in an emergency is not 10
an action with intent to coerce or induce a person. 11
(4) In this section-- 12
emergency services worker means a person who under an Act 13
is authorised to give directions to anyone else for the purposes 14
of an emergency. 15
109 Misrepresentation 16
(1) A person must not knowingly or recklessly make a false or 17
misleading representation to another person about that other 18
person's-- 19
(a) rights or obligations under this Act; or 20
(b) ability to initiate, or participate in, a process or 21
proceedings under this Act; or 22
(c) ability to make a complaint or inquiry to a person or 23
body empowered under this Act to seek compliance 24
with this Act. 25
Maximum penalty--1000 penalty units. 26
(2) Subsection (1) does not apply if the person to whom the 27
representation is made would not be expected to rely on it. 28
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Part 6 Discriminatory, coercive and misleading conduct
[s 110]
Division 2 Criminal proceedings in relation to 1
discriminatory conduct 2
110 Proof of discriminatory conduct 3
(1) This section applies if in proceedings for an offence of 4
contravening section 104 or 107, the prosecution-- 5
(a) proves that the discriminatory conduct was engaged in; 6
and 7
(b) proves that a circumstance mentioned in section 106(a) 8
to (j) existed at the time the discriminatory conduct was 9
engaged in. 10
(2) If it is alleged that the discriminatory conduct was engaged in 11
for a prohibited reason, that reason is presumed to be the 12
dominant reason for that conduct unless the defendant proves 13
on the balance of probabilities, that the reason was not the 14
dominant reason for the conduct. 15
(3) To remove doubt it is declared that, the burden of proof on the 16
defendant under subsection (2) is a legal burden of proof. 17
111 Order for compensation or reinstatement 18
If a person is convicted or found guilty of an offence against 19
section 104 or 107, the court may (in addition to imposing a 20
penalty) make either or both of the following orders-- 21
(a) an order that the offender pay (within a stated period) 22
the compensation to the person who was the subject of 23
the discriminatory conduct that the court considers 24
appropriate; 25
(b) in relation to a person who was or is an employee or 26
prospective employee, an order that-- 27
(i) the person be reinstated or re-employed in his or 28
her former position or, if that position is not 29
available, in a similar position; or 30
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Part 6 Discriminatory, coercive and misleading conduct
[s 112]
(ii) the person be employed in the position for which 1
he or she had applied or a similar position. 2
Division 3 Civil proceedings in relation to 3
discriminatory or coercive conduct 4
112 Civil proceedings in relation to engaging in or inducing 5
discriminatory or coercive conduct 6
(1) An eligible person may apply to a Magistrates Court for an 7
order under this section. 8
Note-- 9
The Uniform Civil Procedure Rules 1999 generally apply. 10
(2) The court may make 1 or more of the orders set out in 11
subsection (3) in relation to a person who has-- 12
(a) engaged in discriminatory conduct for a prohibited 13
reason; or 14
(b) requested, instructed, induced, encouraged, authorised 15
or assisted another person to engage in discriminatory 16
conduct for a prohibited reason; or 17
(c) contravened section 108. 18
(3) For subsection (2), the orders that the court may make are-- 19
(a) an injunction; or 20
(b) in the case of conduct mentioned in subsection (2)(a) or 21
(b), an order that the person pay (within a stated period) 22
the compensation to the person who was the subject of 23
the discriminatory conduct that the court considers 24
appropriate; or 25
(c) in the case of conduct mentioned in subsection (2)(a) in 26
relation to a worker who was or is an employee or 27
prospective employee, an order that-- 28
(i) the worker be reinstated or re-employed in his or 29
her former position or, if that position is not 30
available, in a similar position; or 31
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Part 6 Discriminatory, coercive and misleading conduct
[s 113]
(ii) the prospective worker be employed in the position 1
for which he or she had applied or a similar 2
position; or 3
(d) any other order that the court considers appropriate. 4
(4) For this section, a person may be found to have engaged in 5
discriminatory conduct for a prohibited reason only if a reason 6
mentioned in section 106 was a substantial reason for the 7
conduct. 8
(5) Nothing in this section is to be construed as limiting any other 9
power of the court. 10
(6) For this section, each of the following is an eligible person-- 11
(a) a person affected by the contravention; 12
(b) a person authorised as a representative by a person 13
mentioned in paragraph (a). 14
113 Procedure for civil actions for discriminatory conduct 15
(1) A proceeding taken under section 112 must be commenced 16
not more than 1 year after the date on which the applicant 17
knew or ought to have known that the cause of action accrued. 18
(2) In a proceeding under section 112 in relation to conduct 19
mentioned in section 112(2)(a) or (b), if a prohibited reason is 20
alleged for discriminatory conduct, that reason is presumed to 21
be a substantial reason for that conduct unless the defendant 22
proves, on the balance of probabilities, that the reason was not 23
a substantial reason for the conduct. 24
(3) It is a defence to a proceeding under section 112 in relation to 25
conduct mentioned in section 112(2)(a) or (b) if the defendant 26
proves that-- 27
(a) the conduct was reasonable in the circumstances; and 28
(b) a substantial reason for the conduct was to comply with 29
the requirements of this Act or a corresponding WHS 30
law. 31
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Part 6 Discriminatory, coercive and misleading conduct
[s 114]
(4) To remove doubt, it is declared that, the burden of proof on the 1
defendant under subsections (2) and (3) is a legal burden of 2
proof. 3
Division 4 General 4
114 General provisions relating to orders 5
(1) The making of an order in a proceeding under section 112 in 6
relation to conduct mentioned in section 112(2)(a) or (b) does 7
not prevent the bringing of a proceeding for an offence under 8
section 104 or 107 in relation to the same conduct. 9
(2) If a court makes an order under section 112 in a proceeding in 10
relation to conduct mentioned in section 112(2)(a) or (b), a 11
court can not make an order under section 111 in a proceeding 12
for an offence under section 104 or 107 in relation to the same 13
conduct. 14
(3) If a court makes an order under section 111 in a proceeding 15
for an offence under section 104 or 107, a court can not make 16
an order under section 112 in a proceeding in relation to 17
conduct mentioned in section 112(2)(a) or (b) that is the same 18
conduct. 19
115 Prohibition of multiple actions 20
A person can not-- 21
(a) commence a proceeding under division 3 if the person 22
has commenced a proceeding or made an application or 23
complaint in relation to the same matter under a law of 24
the Commonwealth or a State and that proceeding, 25
application or complaint has not been withdrawn; or 26
(b) recover any compensation under division 3 if the person 27
has received compensation for the matter under a law of 28
the Commonwealth or a State; or 29
(c) commence or continue an application under division 3 if 30
the person has failed in a proceeding, application or 31
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Part 7 Workplace entry by WHS entry permit holders
[s 116]
complaint in relation to the same matter under a law of 1
the Commonwealth or a State, other than a proceeding, 2
application or complaint relating to workers' 3
compensation. 4
Part 7 Workplace entry by WHS entry 5
permit holders 6
Division 1 Introductory 7
116 Definitions 8
In this part-- 9
official of a union means a person who holds an office in, or 10
is an employee of, the union. 11
relevant person conducting a business or undertaking means 12
a person conducting a business or undertaking in relation to 13
which the WHS entry permit holder is exercising or proposes 14
to exercise the right of entry. 15
relevant union means the union that a WHS entry permit 16
holder represents. 17
relevant worker, in relation to a workplace, means a worker-- 18
(a) who is a member, or eligible to be a member, of a 19
relevant union; and 20
(b) whose industrial interests the relevant union is entitled 21
to represent; and 22
(c) who works at that workplace. 23
Page 102
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Part 7 Workplace entry by WHS entry permit holders
[s 117]
Division 2 Entry to inquire into suspected 1
contraventions 2
117 Entry to inquire into suspected contraventions 3
(1) A WHS entry permit holder may enter a workplace for the 4
purpose of inquiring into a suspected contravention of this Act 5
that relates to, or affects, a relevant worker. 6
(2) The WHS entry permit holder must reasonably suspect before 7
entering the workplace that the contravention has occurred or 8
is occurring. 9
118 Rights that may be exercised while at workplace 10
(1) While at the workplace under this division, the WHS entry 11
permit holder may do all or any of the following in relation to 12
the suspected contravention of this Act-- 13
(a) inspect any work system, plant, substance, structure or 14
other thing relevant to the suspected contravention; 15
(b) consult with the relevant workers in relation to the 16
suspected contravention; 17
(c) consult with the relevant person conducting a business 18
or undertaking about the suspected contravention; 19
(d) require the relevant person conducting a business or 20
undertaking to allow the WHS entry permit holder to 21
inspect, and make copies of, any document that is 22
directly relevant to the suspected contravention and 23
that-- 24
(i) is kept at the workplace; or 25
(ii) is accessible from a computer that is kept at the 26
workplace; 27
(e) warn any person whom the WHS entry permit holder 28
reasonably believes to be exposed to a serious risk to his 29
or her health or safety, emanating from an immediate or 30
imminent exposure to a hazard, of that risk. 31
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Part 7 Workplace entry by WHS entry permit holders
[s 119]
(2) However, the relevant person conducting the business or 1
undertaking is not required under subsection (1)(d) to allow 2
the WHS entry permit holder to inspect or make copies of a 3
document if to do so would contravene a law of the 4
Commonwealth or a law of a State. 5
(3) A relevant person conducting a business or undertaking must 6
not, without reasonable excuse, refuse or fail to comply with a 7
requirement under subsection (1)(d). 8
WHS civil penalty provision. 9
Maximum penalty--100 penalty units. 10
(4) Subsection (3) places an evidential burden on the defendant to 11
show a reasonable excuse. 12
Notes-- 13
1 At least 24 hours notice is required for an entry to a workplace to 14
inspect employee records or other documents held by someone 15
other than a person conducting a business or undertaking. See 16
section 120. 17
2 The use or disclosure of personal information obtained under this 18
section is regulated under the Privacy Act 1988 of the 19
Commonwealth. 20
119 Notice of entry 21
(1) A WHS entry permit holder must, as soon as is reasonably 22
practicable after entering a workplace under this division, give 23
notice of the entry and the suspected contravention, as 24
provided under a regulation, to-- 25
(a) the relevant person conducting a business or 26
undertaking; and 27
(b) the person with management or control of the 28
workplace. 29
(2) Subsection (1) does not apply if to give the notice would-- 30
(a) defeat the purpose of the entry to the workplace; or 31
(b) unreasonably delay the WHS entry permit holder in an 32
urgent case. 33
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Part 7 Workplace entry by WHS entry permit holders
[s 120]
(3) Subsection (1) does not apply to an entry to a workplace under 1
this division to inspect or make copies of documents 2
mentioned in section 120. 3
120 Entry to inspect employee records or information held by 4
another person 5
(1) This section applies if a WHS entry permit holder is entitled 6
under section 117 to enter a workplace to inquire into a 7
suspected contravention of this Act. 8
(2) For the purposes of the inquiry into the suspected 9
contravention, the WHS entry permit holder may enter any 10
workplace for the purpose of inspecting, or making copies 11
of-- 12
(a) employee records that are directly relevant to a 13
suspected contravention; or 14
(b) other documents that are directly relevant to a suspected 15
contravention and that are not held by the relevant 16
person conducting a business or undertaking. 17
(3) Before doing so, the WHS entry permit holder must give 18
notice of the proposed entry to the person from whom the 19
documents are requested and the relevant person conducting a 20
business or undertaking. 21
(4) The notice must comply with a regulation made for this 22
section. 23
(5) The notice must be given during usual working hours at that 24
workplace at least 24 hours, but not more than 14 days, before 25
the entry. 26
Note-- 27
The use or disclosure of personal information obtained under this 28
section is regulated under the Privacy Act 1988 of the Commonwealth. 29
Page 105
Work Health and Safety Bill 2011
Part 7 Workplace entry by WHS entry permit holders
[s 121]
Division 3 Entry to consult and advise workers 1
121 Entry to consult and advise workers 2
(1) A WHS entry permit holder may enter a workplace to consult 3
on work health and safety matters with, and provide advice on 4
those matters to, 1 or more relevant workers who wish to 5
participate in the discussions. 6
(2) A WHS entry permit holder may, after entering a workplace 7
under this division, warn any person whom the WHS entry 8
permit holder reasonably believes to be exposed to a serious 9
risk to his or her health or safety, emanating from an 10
immediate or imminent exposure to a hazard, of that risk. 11
122 Notice of entry 12
(1) Before entering a workplace under this division, a WHS entry 13
permit holder must give notice of the proposed entry to the 14
relevant person conducting a business or undertaking. 15
(2) The notice must comply with a regulation made for this 16
section. 17
(3) The notice must be given during the usual working hours at 18
that workplace at least 24 hours, but not more than 14 days, 19
before the entry. 20
Division 4 Requirements for WHS entry permit 21
holders 22
123 Contravening WHS entry permit conditions 23
A WHS entry permit holder must not contravene a condition 24
imposed on the WHS entry permit. 25
WHS civil penalty provision. 26
Maximum penalty--100 penalty units. 27
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Part 7 Workplace entry by WHS entry permit holders
[s 124]
124 WHS entry permit holder must also hold permit under 1
other law 2
A WHS entry permit holder must not enter a workplace unless 3
he or she also holds an entry permit under the Fair Work Act 4
or an industrial officer authority. 5
WHS civil penalty provision. 6
Maximum penalty--100 penalty units. 7
125 WHS entry permit to be available for inspection 8
A WHS entry permit holder must, at all times that he or she is 9
at a workplace under a right of entry under division 2 or 3, 10
have his or her WHS entry permit and photographic 11
identification available for inspection by any person on 12
request. 13
WHS civil penalty provision. 14
Maximum penalty--100 penalty units. 15
126 When right may be exercised 16
A WHS entry permit holder may exercise a right under 17
division 2 or 3 only during the usual working hours at the 18
workplace. 19
WHS civil penalty provision. 20
Maximum penalty--100 penalty units. 21
127 Where the right may be exercised 22
A WHS entry permit holder may exercise a right of entry to a 23
workplace only in relation to-- 24
(a) the area of the workplace where the relevant workers 25
work; or 26
(b) any other work area that directly affects the health or 27
safety of those workers. 28
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Part 7 Workplace entry by WHS entry permit holders
[s 128]
128 Work health and safety requirements 1
A WHS entry permit holder must not exercise a right of entry 2
to a workplace under division 2 or 3 unless he or she complies 3
with any reasonable request by the relevant person conducting 4
a business or undertaking or the person with management or 5
control of the workplace to comply with-- 6
(a) any work health and safety requirement that applies to 7
the workplace; and 8
(b) any other legislated requirement that applies to that type 9
of workplace. 10
WHS civil penalty provision. 11
Maximum penalty--100 penalty units. 12
129 Residential premises 13
A WHS entry permit holder must not enter any part of a 14
workplace that is used only for residential purposes. 15
WHS civil penalty provision. 16
Maximum penalty--100 penalty units. 17
130 WHS entry permit holder not required to disclose names 18
of workers 19
(1) A WHS entry permit holder is not required to disclose to the 20
relevant person conducting a business or undertaking or the 21
person with management or control of the workplace the 22
name of any worker at the workplace. 23
(2) A WHS entry permit holder who wishes to disclose to the 24
relevant person conducting a business or undertaking or the 25
person with management or control of the workplace the 26
name of any worker may only do so with the consent of the 27
worker. 28
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Work Health and Safety Bill 2011
Part 7 Workplace entry by WHS entry permit holders
[s 131]
Division 5 WHS entry permits 1
131 Application for WHS entry permit 2
(1) A union may apply to the industrial registrar for the issue of a 3
WHS entry permit to a person who is an official of the union. 4
(2) The application must specify the person who is to hold the 5
WHS entry permit and include a statutory declaration by that 6
person declaring that he or she-- 7
(a) is an official of the union; and 8
(b) has satisfactorily completed the prescribed training; and 9
(c) holds, or will hold, an entry permit under the Fair Work 10
Act or an industrial officer authority. 11
132 Consideration of application 12
In considering whether to issue a WHS entry permit, the 13
industrial registrar must take into account-- 14
(a) the object of this Act; and 15
(b) the object of allowing union right of entry to workplaces 16
for work health and safety purposes. 17
133 Eligibility criteria 18
The industrial registrar must not issue a WHS entry permit to 19
an official of a union unless the industrial registrar is satisfied 20
that the official-- 21
(a) is an official of the union; and 22
(b) has satisfactorily completed the prescribed training; and 23
(c) holds, or will hold, an entry permit under the Fair Work 24
Act or an industrial officer authority. 25
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[s 134]
134 Issue of WHS entry permit 1
(1) The industrial registrar may issue a WHS entry permit to a 2
person if the industrial registrar has taken into account the 3
matters in section 132 and is satisfied about the matters in 4
section 133. 5
(2) A person dissatisfied with the decision of the industrial 6
registrar may appeal under the Industrial Relations Act 1999, 7
chapter 9. 8
Note-- 9
See the Industrial Relations Act 1999, sections 341(1) and 342(6). 10
135 Conditions on WHS entry permit 11
The industrial registrar may impose conditions on a WHS 12
entry permit. 13
136 Term of WHS entry permit 14
A WHS entry permit has effect for a term of 3 years from the 15
date it is issued. 16
137 Expiry of WHS entry permit 17
(1) Unless it is earlier revoked, a WHS entry permit expires at the 18
first of the following to occur-- 19
(a) at the end of the term of the WHS entry permit; 20
(b) at the end of the term of the entry permit held by the 21
WHS entry permit holder under the Fair Work Act or of 22
the industrial officer authority; 23
(c) when the permit holder ceases to be an official of the 24
union that applied for the permit; 25
(d) the union that applied for the permit ceases to be-- 26
(i) an organisation that is registered, or taken to be 27
registered, under the Fair Work (Registered 28
Organisations) Act 2009 of the Commonwealth; or 29
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[s 138]
(ii) an association of employees or independent 1
contractors, or both, that is registered or recognised 2
as an association of that type (however described) 3
under the Industrial Relations Act 1999. 4
(2) An application may be made for the issue of a subsequent 5
WHS entry permit before or after the current WHS entry 6
permit expires. 7
138 Application to revoke WHS entry permit 8
(1) The following persons may apply to the commission for a 9
WHS entry permit held by a person to be revoked-- 10
(a) the regulator; 11
(b) the relevant person conducting a business or 12
undertaking; 13
(c) any other person in relation to whom the WHS entry 14
permit holder has exercised or purported to exercise a 15
right under this part; 16
(d) any other person affected by the exercise or purported 17
exercise of a right under this part by a WHS entry permit 18
holder. 19
(2) The grounds for an application for revocation of a WHS entry 20
permit are-- 21
(a) that the permit holder no longer satisfies the eligibility 22
criteria for a WHS entry permit or an entry permit under 23
a corresponding WHS law, or the Fair Work Act or the 24
Workplace Relations Act 1996 of the Commonwealth or 25
for an industrial officer authority; or 26
(b) that the permit holder has contravened any condition of 27
the WHS entry permit; or 28
(c) that the permit holder has acted or purported to act in an 29
improper way in the exercise of any right under this Act; 30
or 31
(d) in exercising or purporting to exercise a right under this 32
part, that the permit holder has intentionally hindered or 33
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[s 139]
obstructed a person conducting the business or 1
undertaking or workers at a workplace. 2
(3) The applicant must give written notice of the application, 3
setting out the grounds for the application, to the person who 4
holds the WHS entry permit and the union concerned. 5
(4) The person who holds the WHS entry permit and the union 6
that the WHS entry permit holder represents are parties to the 7
application. 8
139 Commission must permit WHS entry permit holder to 9
show cause 10
(1) If, on an application under section 138, the commission is 11
satisfied that a ground may exist for the revocation of the 12
WHS entry permit under section 138(2), the commission 13
must-- 14
(a) give the WHS entry permit holder written notice (a 15
show cause notice); and 16
(b) if the commission considers it appropriate, suspend the 17
operation of the WHS entry permit until the commission 18
decides the application for revocation. 19
(2) The show cause notice must-- 20
(a) contain a statement to the effect that the WHS entry 21
permit holder may, not later than 21 days after the day 22
the WHS entry permit holder is given the notice, give 23
the commission written reasons explaining why the 24
WHS entry permit should not be revoked; and 25
(b) be accompanied by a summary of the reasons for the 26
application; and 27
(c) if applicable, be accompanied by a notice of suspension 28
of the permit. 29
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[s 140]
140 Determination of application 1
(1) If the commission is satisfied on the balance of probabilities 2
about any of the matters in section 138(2), it may make 1 or 3
more of the following orders-- 4
(a) an order imposing conditions on the WHS entry permit; 5
(b) an order suspending the WHS entry permit; 6
(c) an order revoking the WHS entry permit; 7
(d) an order about the future issue of a WHS entry permit to 8
the person whose WHS entry permit is revoked; 9
(e) an order imposing any alternative action the commission 10
considers appropriate. 11
(2) In deciding what action to take under subsection (1), in 12
relation to a person, the commission must take into account-- 13
(a) the seriousness of any findings of the commission 14
having regard to the object of this Act; and 15
(b) any other matters the commission considers relevant. 16
(3) A person dissatisfied with the decision of the commission 17
may appeal under the Industrial Relations Act 1999, chapter 18
9. 19
Note-- 20
See the Industrial Relations Act 1999, sections 341(1) and 342(1). 21
Division 6 Dealing with disputes 22
141 Application for assistance of inspector to resolve dispute 23
If a dispute arises about the exercise or purported exercise by 24
a WHS entry permit holder of a right of entry under this Act, 25
any party to the dispute may ask the regulator to appoint an 26
inspector to attend the workplace to assist in resolving the 27
dispute. 28
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[s 142]
142 Commission may deal with a dispute about a right of 1
entry under this Act 2
(1) The commission may deal with a dispute about the exercise or 3
purported exercise by a WHS entry permit holder of a right of 4
entry under this Act (including a dispute about whether a 5
request under section 128 is reasonable). 6
(2) The commission may deal with the dispute in any way it 7
thinks fit, including by means of mediation, conciliation or 8
arbitration. 9
(3) If the commission deals with the dispute by arbitration, it may 10
make 1 or more of the following orders-- 11
(a) an order imposing conditions on a WHS entry permit; 12
(b) an order suspending a WHS entry permit; 13
(c) an order revoking a WHS entry permit; 14
(d) an order about the future issue of WHS entry permits to 15
1 or more persons; 16
(e) any other order it considers appropriate. 17
(4) The commission may deal with the dispute-- 18
(a) on its own initiative; or 19
(b) on application by any of the following to whom the 20
dispute relates-- 21
(i) a WHS entry permit holder; 22
(ii) the relevant union; 23
(iii) the relevant person conducting a business or 24
undertaking; 25
(iv) any other person in relation to whom the WHS 26
entry permit holder has exercised or purported to 27
exercise the right of entry; 28
(v) any other person affected by the exercise or 29
purported exercise of the right of entry by a WHS 30
entry permit holder; 31
(vi) the regulator. 32
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[s 143]
(5) In dealing with a dispute, the commission must not confer any 1
rights on the WHS entry permit holder that are additional to, 2
or inconsistent with, rights exercisable by the WHS entry 3
permit holder under this part. 4
(6) A person dissatisfied with the decision of the commission 5
may appeal under the Industrial Relations Act 1999, chapter 6
9. 7
Note-- 8
See the Industrial Relations Act 1999, sections 341(1) and 342(1) 9
143 Contravening order made to deal with dispute 10
A person must not contravene an order under section 142(3). 11
WHS civil penalty provision. 12
Maximum penalty--100 penalty units. 13
Division 7 Prohibitions 14
144 Person must not refuse or delay entry of WHS entry 15
permit holder 16
(1) A person must not, without reasonable excuse, refuse or 17
unduly delay entry into a workplace by a WHS entry permit 18
holder who is entitled to enter the workplace under this part. 19
WHS civil penalty provision. 20
Maximum penalty--100 penalty units. 21
(2) Subsection (1) places an evidential burden on the defendant to 22
show a reasonable excuse. 23
145 Person must not hinder or obstruct WHS entry permit 24
holder 25
A person must not intentionally and unreasonably hinder or 26
obstruct a WHS entry permit holder in entering a workplace 27
or in exercising any rights at a workplace under this part. 28
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[s 146]
WHS civil penalty provision. 1
Maximum penalty--100 penalty units. 2
146 WHS entry permit holder must not delay, hinder or 3
obstruct any person or disrupt work at workplace 4
A WHS entry permit holder exercising, or seeking to exercise, 5
rights under this part must not intentionally and unreasonably 6
delay, hinder or obstruct any person or disrupt any work at a 7
workplace, or otherwise act in an improper way. 8
WHS civil penalty provision. 9
Maximum penalty--100 penalty units. 10
147 Misrepresentations about things authorised by this part 11
(1) A person must not take action-- 12
(a) with the intention of giving the impression; or 13
(b) reckless as to whether the impression is given; 14
that the doing of a thing is authorised by this part if it is not so 15
authorised. 16
WHS civil penalty provision. 17
Maximum penalty--100 penalty units. 18
(2) Subsection (1) does not apply if the person reasonably 19
believes that the doing of the thing is authorised. 20
148 Unauthorised use or disclosure of information or 21
documents 22
A person must not use or disclose information or a document 23
obtained under division 2 in an inquiry into a suspected 24
contravention for a purpose that is not related to the inquiry or 25
rectifying the suspected contravention, unless-- 26
(a) the person reasonably believes that the use or disclosure 27
is necessary to lessen or prevent-- 28
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[s 148]
(i) a serious risk to a person's health or safety; or 1
(ii) a serious threat to public health or safety; or 2
(b) the person has reason to suspect that unlawful activity 3
has been, is being or may be engaged in, and uses or 4
discloses the information or document as a necessary 5
part of an investigation of the matter or in reporting 6
concerns to relevant persons or authorities; or 7
(c) the use or disclosure is required or authorised by or 8
under law; or 9
(d) the person reasonably believes that the use or disclosure 10
is reasonably necessary for 1 or more of the following 11
by, or on behalf of, an enforcement body (within the 12
meaning of the Privacy Act 1988 of the 13
Commonwealth)-- 14
(i) the prevention, detection, investigation, 15
prosecution or punishment of criminal offences, 16
breaches of a law imposing a penalty or sanction or 17
breaches of a prescribed law; 18
(ii) the enforcement of laws relating to the confiscation 19
of the proceeds of crime; 20
(iii) the protection of the public revenue; 21
(iv) the prevention, detection, investigation or 22
remedying of seriously improper conduct or 23
prescribed conduct; 24
(v) the preparation for, or conduct of, proceedings 25
before any court or tribunal, or implementation of 26
the orders of a court or tribunal; or 27
(e) if the information is, or the document contains, personal 28
information--the use or disclosure is made with the 29
consent of the individual to whom the information 30
relates. 31
WHS civil penalty provision. 32
Maximum penalty--100 penalty units. 33
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[s 149]
Division 8 General 1
149 Return of WHS entry permits 2
(1) The person to whom a WHS entry permit is issued must return 3
the permit to the industrial registrar within 14 days of any of 4
the following things happening-- 5
(a) the permit is revoked or suspended; 6
(b) the permit expires. 7
WHS civil penalty provision. 8
Maximum penalty--20 penalty units. 9
(2) After the end of a period of suspension of a WHS entry 10
permit, the industrial registrar must return the WHS entry 11
permit to the person to whom it was issued if-- 12
(a) the person, or the person's union, applies to the 13
industrial registrar for the return of the permit; and 14
(b) the permit has not expired. 15
150 Union to provide information to industrial registrar 16
The relevant union must advise the industrial registrar if-- 17
(a) the WHS entry permit holder resigns from or otherwise 18
leaves the union; or 19
(b) the WHS entry permit holder has had any entry permit 20
granted under a corresponding WHS law, or the Fair 21
Work Act or the Workplace Relations Act 1996 of the 22
Commonwealth (no matter when in force), or an 23
industrial officer authority, cancelled or suspended; or 24
(c) the union ceases to be-- 25
(i) an organisation that is registered, or taken to be 26
registered, under the Fair Work (Registered 27
Organisations) Act 2009 of the Commonwealth; or 28
(ii) an association of employees or independent 29
contractors, or both, that is registered or recognised 30
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[s 151]
as an association of that type (however described) 1
under the Industrial Relations Act 1999. 2
WHS civil penalty provision. 3
Maximum penalty--50 penalty units. 4
151 Register of WHS entry permit holders 5
The industrial registrar must keep available for public access 6
an up-to-date register of WHS entry permit holders as 7
provided under a regulation. 8
Part 8 The regulator 9
Division 1 Functions of regulator 10
152 Functions of regulator 11
The regulator has the following functions-- 12
(a) to advise and make recommendations to the Minister 13
and report on the operation and effectiveness of this Act; 14
(b) to monitor and enforce compliance with this Act; 15
(c) to provide advice and information on work health and 16
safety to duty holders under this Act and to the 17
community; 18
(d) to collect, analyse and publish statistics relating to work 19
health and safety; 20
(e) to foster a cooperative, consultative relationship 21
between duty holders and the persons to whom they owe 22
duties and their representatives in relation to work 23
health and safety matters; 24
(f) to promote and support education and training on 25
matters relating to work health and safety; 26
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[s 153]
(g) to engage in, promote and coordinate the sharing of 1
information to achieve the object of this Act, including 2
the sharing of information with a corresponding 3
regulator; 4
(h) to conduct and defend proceedings under this Act before 5
a court or tribunal; 6
(i) any other function conferred on the regulator under this 7
Act. 8
Note-- 9
The regulator is appointed under schedule 2, part 1. 10
153 Powers of regulator 11
(1) Subject to this Act, the regulator has the power to do all things 12
necessary or convenient to be done for or in connection with 13
the performance of the regulator's functions. 14
(2) Without limiting subsection (1), the regulator has all the 15
powers and functions that an inspector has under this Act. 16
154 Delegation by regulator 17
(1) The regulator may delegate to an inspector, appropriately 18
qualified public service employee or a person prescribed 19
under a regulation a function or power under this Act. 20
(2) In this section-- 21
appropriately qualified includes having the qualifications, 22
experience or standing appropriate to perform the function or 23
exercise the power. 24
Example of standing-- 25
a person's classification level in the public service 26
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[s 155]
Division 2 Powers of regulator to obtain 1
information 2
155 Powers of regulator to obtain information 3
(1) This section applies if the regulator has reasonable grounds to 4
believe that a person is capable of giving information, 5
providing documents or giving evidence in relation to a 6
possible contravention of this Act or that will assist the 7
regulator to monitor or enforce compliance with this Act. 8
(2) The regulator may, by written notice served on the person, 9
require the person to do one or more of the following-- 10
(a) to give the regulator, in writing signed by the person (or 11
in the case of a body corporate, by a competent officer 12
of the body corporate) and within the time and in the 13
way stated in the notice, that information of which the 14
person has knowledge; 15
(b) to produce to the regulator, in accordance with the 16
notice, those documents; 17
(c) to appear before a person appointed by the regulator on 18
a day, and at a time and place, stated in the notice (being 19
a day, time and place that are reasonable in the 20
circumstances) and give either orally or in writing that 21
evidence and produce those documents. 22
(3) The notice must-- 23
(a) state that the requirement is made under this section; 24
and 25
(b) contain a statement to the effect that a failure to comply 26
with a requirement is an offence; and 27
(c) if the notice requires the person to provide information 28
or documents or answer questions-- 29
(i) contain a statement about the effect of sections 172 30
and 269; and 31
(ii) state that the person may attend with a legal 32
practitioner. 33
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[s 156]
(4) The regulator must not make a requirement under subsection 1
(2)(c) unless the regulator has taken all reasonable steps to 2
obtain the information under subsections (2)(a) and (b) and 3
has been unable to do so. 4
(5) A person must not, without reasonable excuse, refuse or fail to 5
comply with a requirement under this section. 6
Maximum penalty--100 penalty units. 7
(6) Subsection (5) places an evidential burden on the accused to 8
show a reasonable excuse. 9
(7) Section 172, with any necessary changes, applies to a 10
requirement under this section. 11
Part 9 Securing compliance 12
Division 1 Appointment of inspectors 13
156 Appointment of inspectors 14
(1) The regulator may, by instrument, appoint any of the 15
following as an inspector-- 16
(a) a public service employee; 17
(b) an employee of a public authority; 18
(c) the holder of a statutory office; 19
(d) a person who is appointed as an inspector under a 20
corresponding WHS law; 21
(e) a person of a class prescribed under a regulation. 22
(2) Without limiting subsection (1)(d), arrangements may be 23
made for that paragraph under the Public Service Act 2008, 24
sections 183 and 184 as if reference in those sections to the 25
chief executive were a reference to the regulator. 26
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[s 157]
157 Identity cards 1
(1) The regulator must give each inspector an identity card that 2
states the person's name and appointment as an inspector and 3
includes any other matter prescribed under a regulation. 4
(2) In exercising a compliance power in relation to a person, an 5
inspector must-- 6
(a) produce the inspector's identity card for the person's 7
inspection before exercising the power; or 8
(b) have the identity card displayed so it is clearly visible to 9
the person when exercising the power. 10
(3) However, if it is not practicable to comply with subsection (2), 11
the inspector must produce the identity card for the person's 12
inspection at the first reasonable opportunity. 13
(4) If a person to whom an identity card has been issued ceases to 14
be an inspector, the person must return the identity card to the 15
regulator as soon as practicable. 16
Maximum penalty--40 penalty units. 17
158 Accountability of inspectors 18
(1) An inspector must give written notice to the regulator of all 19
interests, pecuniary or otherwise, that the inspector has, or 20
acquires, and that conflict or could conflict with the proper 21
performance of the inspector's functions. 22
(2) The regulator must give a direction to an inspector not to deal, 23
or to no longer deal, with a matter if the regulator becomes 24
aware that the inspector has a potential conflict of interest in 25
relation to a matter and the regulator considers that the 26
inspector should not deal, or should no longer deal, with the 27
matter. 28
Note-- 29
Failure to comply with subsection (1) or (2) may result in action by the 30
regulator under section 159 (Suspension and ending of appointment of 31
inspectors) or disciplinary action under the Public Service Act 2008. 32
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[s 159]
159 Suspension and ending of appointment of inspectors 1
(1) The regulator may suspend or end the appointment of an 2
inspector. 3
(2) A person's appointment as an inspector ends when the person 4
ceases to be eligible for appointment as an inspector. 5
Division 2 Functions and powers of inspectors 6
160 Functions and powers of inspectors 7
An inspector has the following functions and powers under 8
this Act-- 9
(a) to provide information and advice about compliance 10
with this Act; 11
(b) to assist in the resolution of-- 12
(i) work health and safety issues at workplaces; and 13
(ii) issues related to access to a workplace by an 14
assistant to a health and safety representative; and 15
(iii) issues related to the exercise or purported exercise 16
of a right of entry under part 7; 17
(c) to review disputed provisional improvement notices; 18
(d) to require compliance with this Act through the issuing 19
of notices; 20
(e) to investigate contraventions of this Act and assist in the 21
prosecution of offences. 22
161 Conditions on inspectors' compliance powers 23
An inspector's compliance powers are subject to any 24
conditions stated in the instrument of the inspector's 25
appointment. 26
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[s 162]
162 Inspectors subject to regulator's directions 1
(1) An inspector is subject to the regulator's directions in the 2
exercise of the inspector's compliance powers. 3
(2) A direction under subsection (1) may be of a general nature or 4
may relate to a stated matter or stated class of matter. 5
(3) Without limiting subsection (1), the regulator must issue 6
directions to inspectors to ensure powers are exercised under 7
this part in a way that minimises any adverse affect on the 8
privacy, confidentiality and security of persons and 9
businesses. 10
Division 3 Powers relating to entry 11
Subdivision 1 General powers of entry 12
163 Powers of entry 13
(1) An inspector may at any time enter a place that is, or that the 14
inspector reasonably suspects is, a workplace. 15
(2) An entry may be made under subsection (1) with, or without, 16
the consent of the person with management or control of the 17
workplace. 18
(3) If an inspector enters a place under subsection (1) and it is not 19
a workplace, the inspector must leave the place immediately. 20
(4) An inspector may enter any place if the entry is authorised by 21
a search warrant. 22
Note-- 23
An inspector may enter residential premises to gain access to a 24
workplace (see section 170(c)). 25
164 Notification of entry 26
(1) An inspector may enter a place under section 163 without 27
prior notice to any person. 28
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[s 165]
(2) An inspector must, as soon as practicable after entry to a 1
workplace or suspected workplace, take all reasonable steps to 2
notify the following persons of the entry and the purpose of 3
the entry-- 4
(a) the relevant person conducting a business or undertaking 5
at the workplace; 6
(b) the person with management or control of the 7
workplace; 8
(c) any health and safety representative for workers 9
carrying out work for that business or undertaking at the 10
workplace. 11
(3) However, an inspector is not required to notify any person if 12
to do so would defeat the purpose for which the place was 13
entered or cause unreasonable delay. 14
(4) In this section, relevant person conducting a business or 15
undertaking means the person conducting any business or 16
undertaking in relation to which the inspector is exercising the 17
powers of entry. 18
165 General powers on entry 19
(1) An inspector who enters a workplace under this division may 20
do all or any of the following-- 21
(a) inspect, examine and make inquiries at the workplace; 22
(b) inspect and examine anything, including a document, at 23
the workplace; 24
(c) bring to the workplace and use any equipment or 25
materials that may be required; 26
(d) take measurements, conduct tests and make sketches or 27
recordings, including photographs, films, audio, video, 28
digital or other recordings; 29
(e) take and remove for analysis a sample of any substance 30
or thing without paying for it; 31
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[s 166]
(f) require a person at the workplace to give the inspector 1
reasonable help to exercise the inspector's powers under 2
paragraphs (a) to (e); 3
(g) exercise any compliance power or other power that is 4
reasonably necessary to be exercised by the inspector 5
for the purposes of this Act. 6
(2) A person required to give reasonable help under subsection 7
(1)(f) must not, without reasonable excuse, refuse or fail to 8
comply with the requirement. 9
Maximum penalty--100 penalty units. 10
(3) Subsection (2) places an evidential burden on the accused to 11
show a reasonable excuse. 12
166 Persons assisting inspectors 13
(1) A person (the assistant), including an interpreter, may 14
accompany the inspector entering a workplace under section 15
165 to assist the inspector if the inspector considers the 16
assistance is necessary. 17
(2) The assistant-- 18
(a) may do the things at the place and in the way that the 19
inspector reasonably requires to assist the inspector to 20
exercise compliance powers; but 21
(b) must not do anything that the inspector does not have 22
power to do, except as permitted under a search warrant. 23
(3) Anything done lawfully by the assistant is taken for all 24
purposes to have been done by the inspector. 25
Subdivision 2 Search warrants 26
167 Search warrants 27
(1) An inspector may apply to a magistrate for a search warrant 28
for a place. 29
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[s 167A]
(2) The application must be sworn and state the grounds on which 1
the warrant is sought. 2
(3) The magistrate may refuse to consider the application until the 3
inspector gives the magistrate all the information the 4
magistrate requires about the application in the way the 5
magistrate requires. 6
Example-- 7
The magistrate may require additional information supporting the 8
application to be given by statutory declaration. 9
(4) The magistrate may issue a search warrant only if the 10
magistrate is satisfied there are reasonable grounds for 11
suspecting-- 12
(a) there is a particular thing or activity (the evidence) that 13
may provide evidence of an offence against this Act; and 14
(b) the evidence is, or may be within the next 72 hours, at 15
the place. 16
(5) The search warrant must state-- 17
(a) that a stated inspector may, with necessary and 18
reasonable help and force, enter the place and exercise 19
the inspector's compliance powers; and 20
(b) the offence for which the search warrant is sought; and 21
(c) the evidence that may be seized under the search 22
warrant; and 23
(d) the hours of the day or night when the place may be 24
entered; and 25
(e) the date, within 7 days after the search warrant's issue, 26
the search warrant ends. 27
167A Electronic application 28
(1) An application under section 167 may be made by phone, fax, 29
email, radio, videoconferencing or another form of electronic 30
communication if the inspector reasonably considers it 31
necessary because of-- 32
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[s 167A]
(a) urgent circumstances; or 1
(b) other special circumstances, including, for example, the 2
inspector's remote location. 3
(2) The application-- 4
(a) may not be made before the inspector prepares a written 5
application under section 167(2); but 6
(b) may be made before the application is sworn. 7
(3) The magistrate may issue the warrant (the original warrant) 8
only if the magistrate is satisfied-- 9
(a) it was necessary to make the application under this 10
section; and 11
(b) the way the application was made was appropriate. 12
(4) After the magistrate issues the original warrant-- 13
(a) if there is a reasonably practicable way of immediately 14
giving a copy of the warrant to the inspector, including, 15
for example, by sending a copy by fax or email, the 16
magistrate must immediately give a copy of the warrant 17
to the inspector; or 18
(b) otherwise-- 19
(i) the magistrate must tell the inspector the 20
information mentioned in section 167(5); and 21
(ii) the inspector must complete a form of warrant, 22
including by writing on it the information 23
mentioned in section 167(5) provided by the 24
magistrate. 25
(5) The copy of the warrant mentioned in subsection (4)(a), or the 26
form of warrant completed under subsection (4)(b) (in either 27
case the duplicate warrant), is a duplicate of, and as effectual 28
as, the original warrant. 29
(6) The inspector must, at the first reasonable opportunity, send to 30
the magistrate-- 31
(a) the written application complying with section 167(2); 32
and 33
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(b) if the inspector completed a form of warrant under 1
subsection (4)(b)--the completed form of warrant. 2
(7) The magistrate must keep the original warrant and, on 3
receiving the documents under subsection (6)-- 4
(a) attach the documents to the original warrant; and 5
(b) give the original warrant and documents to the clerk of 6
the court of the relevant Magistrates Court. 7
(8) Despite subsection (5), if-- 8
(a) an issue arises in a proceeding about whether an 9
exercise of a power was authorised by a warrant issued 10
under this section; and 11
(b) the original warrant is not produced in evidence; 12
the onus of proof is on the person relying on the lawfulness of 13
the exercise of the power to prove a warrant authorised the 14
exercise of the power. 15
(9) This section does not limit section 167. 16
(10) In this section-- 17
relevant Magistrates Court, in relation to a magistrate, means 18
the Magistrates Court that the magistrate constitutes under the 19
Magistrates Act 1991. 20
Note-- 21
In relation to the numbering of this section, see the note to section 3. 22
168 Announcement before entry on warrant 23
(1) Before executing a search warrant, the inspector named in the 24
warrant or an assistant to the inspector must-- 25
(a) announce that he or she is authorised by the warrant to 26
enter the place; and 27
(b) give any person at the place an opportunity to allow that 28
entry. 29
(2) However, the inspector or an assistant to the inspector is not 30
required to comply with subsection (1) if he or she believes on 31
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reasonable grounds that immediate entry to the place is 1
needed to ensure-- 2
(a) the safety of any person; or 3
(b) that the effective execution of the warrant is not 4
frustrated. 5
169 Copy of warrant to be given to person with management 6
or control of place 7
(1) If the person who has or appears to have management or 8
control of a place is present at the place when a search warrant 9
is being executed, the inspector must-- 10
(a) identify himself or herself to that person by producing 11
his or her identity card for inspection; and 12
(b) give that person a copy of the execution copy of the 13
warrant. 14
(2) In this section-- 15
execution copy includes a duplicate warrant mentioned in 16
section 167A(5). 17
Subdivision 3 Limitation on entry powers 18
170 Places used for residential purposes 19
Despite anything else in this division, the powers of an 20
inspector under this division in relation to entering a place are 21
not exercisable in relation to any part of a place that is used 22
only for residential purposes except-- 23
(a) with the consent of the person with management or 24
control of the place; or 25
(b) under the authority conferred by a search warrant; or 26
(c) for the purpose only of gaining access to a suspected 27
workplace, but only-- 28
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(i) if the inspector reasonably believes that no 1
reasonable alternative access is available; and 2
(ii) at a reasonable time having regard to the times at 3
which the inspector believes work is being carried 4
out at the place to which access is sought. 5
Subdivision 4 Specific powers on entry 6
171 Power to require production of documents and answers 7
to questions 8
(1) An inspector who enters a workplace under this division 9
may-- 10
(a) require a person to tell the inspector who has custody of, 11
or access to, a document; or 12
(b) require a person who has custody of, or access to, a 13
document to produce that document to the inspector 14
while the inspector is at that workplace or within a 15
stated period; or 16
(c) require a person at the workplace to answer any 17
questions put by the inspector. 18
(2) A requirement under subsection (1)(b) must be made by 19
written notice unless the circumstances require the inspector 20
to have immediate access to the document. 21
(3) An interview conducted by an inspector under subsection 22
(1)(c) must be conducted in private if-- 23
(a) the inspector considers it appropriate; or 24
(b) the person being interviewed so requests. 25
(4) Subsection (3) does not limit the operation of section 166 or 26
prevent a representative of the person being interviewed from 27
being present at the interview. 28
(5) Subsection (3) may be invoked during an interview by-- 29
(a) the inspector; or 30
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(b) the person being interviewed; 1
in which case the subsection applies to the remainder of the 2
interview. 3
(6) A person must not, without reasonable excuse, refuse or fail to 4
comply with a requirement under this section. 5
Maximum penalty--100 penalty units. 6
Note-- 7
See sections 172 and 173 in relation to self-incrimination and section 8
269 in relation to legal professional privilege. 9
(7) Subsection (6) places an evidential burden on the accused to 10
show a reasonable excuse. 11
172 Abrogation of privilege against self-incrimination 12
(1) A person is not excused from answering a question or 13
providing information or a document under this part on the 14
ground that the answer to the question, or the information or 15
document, may tend to incriminate the person or expose the 16
person to a penalty. 17
(2) However, the answer to a question or information or a 18
document provided by an individual, and other evidence 19
directly or indirectly derived from the answer, information or 20
document, is not admissible as evidence against that 21
individual in civil or criminal proceedings other than 22
proceedings arising out of the false or misleading nature of the 23
answer, information or document. 24
173 Warning to be given 25
(1) Before requiring a person to answer a question or provide 26
information or a document under this part, an inspector 27
must-- 28
(a) identify himself or herself to the person as an inspector 29
by producing the inspector's identity card or in some 30
other way; and 31
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(b) warn the person that failure to comply with the 1
requirement or to answer the question, without 2
reasonable excuse, would constitute an offence; and 3
(c) warn the person about the effect of section 172; and 4
(d) advise the person about the effect of section 269. 5
(2) It is not an offence for an individual to refuse to answer a 6
question put by an inspector or provide information or a 7
document to an inspector under this part on the ground that 8
the question, information or document might tend to 9
incriminate him or her, unless he or she was first given the 10
warning in subsection (1)(c). 11
(3) Nothing in this section prevents an inspector from obtaining 12
and using evidence given to the inspector voluntarily by any 13
person. 14
174 Powers to copy and retain documents 15
(1) An inspector may-- 16
(a) make copies of, or take extracts from, a document given 17
to the inspector under a requirement under this Act; and 18
(b) keep that document for the period that the inspector 19
considers necessary. 20
(2) While an inspector retains custody of a document, the 21
inspector must permit the following persons to inspect or 22
make copies of the document at all reasonable times-- 23
(a) the person who produced the document; 24
(b) the owner of the document; 25
(c) a person authorised by a person mentioned in paragraph 26
(a) or (b). 27
175 Power to seize evidence etc. 28
(1) An inspector who enters a workplace under this part may-- 29
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(a) seize anything (including a document) at the place if the 1
inspector reasonably believes the thing is evidence of an 2
offence against this Act; or 3
(b) take and remove for analysis, testing or examination a 4
sample of any substance or thing without paying for it. 5
(2) An inspector who enters a place with a search warrant may 6
seize the evidence for which the warrant was issued. 7
(3) An inspector may also seize anything else at the place if the 8
inspector reasonably believes-- 9
(a) the thing is evidence of an offence against this Act; and 10
(b) the seizure is necessary to prevent the thing being 11
hidden, lost or destroyed or used to continue or repeat 12
the offence. 13
176 Inspector's power to seize dangerous workplaces and 14
things 15
(1) This section applies if an inspector who enters a workplace 16
under this part reasonably believes that-- 17
(a) the workplace or part of the workplace; or 18
(b) plant at the workplace; or 19
(c) a substance at the workplace or part of the workplace; or 20
(d) a structure at a workplace; 21
is defective or hazardous to a degree likely to cause serious 22
injury or illness or a dangerous incident to occur. 23
(2) The inspector may seize the workplace or part, the plant, the 24
substance or the structure. 25
177 Powers supporting seizure 26
(1) Having seized a thing, an inspector may-- 27
(a) move the thing from the place where it was seized (the 28
place of seizure); or 29
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(b) leave the thing at the place of seizure but take reasonable 1
action to restrict access to it; or 2
Examples-- 3
1 sealing a thing and marking it to show access to it is 4
restricted 5
2 sealing the entrance to a room where the seized thing is 6
situated and marking it to show access to it is restricted 7
(c) if the thing is plant or a structure--dismantle or cause to 8
be dismantled the plant or structure. 9
(2) If an inspector restricts access to a seized thing, a person must 10
not tamper, or attempt to tamper, with the thing or something 11
restricting access to the thing without an inspector's approval. 12
Maximum penalty--100 penalty units. 13
(3) To enable a thing to be seized, an inspector may require the 14
person in control of it-- 15
(a) to take it to a stated reasonable place by a stated 16
reasonable time; and 17
(b) if necessary, to remain in control of it at the stated place 18
for a reasonable time. 19
(4) The requirement-- 20
(a) must be made by written notice; or 21
(b) if for any reason it is not practicable to give the notice, 22
may be made orally and confirmed by written notice as 23
soon as practicable. 24
(5) A further requirement may be made under this section in 25
relation to the same thing if it is necessary and reasonable to 26
make the further requirement. 27
(6) The person must not, without reasonable excuse, refuse or fail 28
to comply with a requirement under subsection (3) or (5). 29
Maximum penalty--100 penalty units. 30
(7) Subsection (6) places an evidential burden on the defendant to 31
show a reasonable excuse. 32
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178 Receipt for seized things 1
(1) As soon as practicable after an inspector seizes a thing, the 2
inspector must give a receipt for it to the person from whom it 3
was seized. 4
(2) However, if for any reason it is not practicable to comply with 5
subsection (1), the inspector must leave the receipt in a 6
conspicuous position and in a reasonably secure way at the 7
place of seizure. 8
(3) The receipt must describe generally each thing seized and its 9
condition. 10
(4) This section does not apply to a thing if it is impracticable or 11
would be unreasonable to give the receipt required by this 12
section (given the thing's nature, condition and value). 13
179 Forfeiture of seized things 14
(1) A seized thing is forfeited to the State if the regulator-- 15
(a) can not find the person entitled to the thing after making 16
reasonable inquiries; or 17
(b) can not return it to the person entitled to it, after making 18
reasonable efforts; or 19
(c) reasonably believes it is necessary to forfeit the thing to 20
prevent it being used to commit an offence against this 21
Act. 22
(2) Subsection (1)(a) does not require the regulator to make 23
inquiries if it would be unreasonable to make inquiries to find 24
the person entitled to the thing. 25
(3) Subsection (1)(b) does not require the regulator to make 26
efforts if it would be unreasonable to make efforts to return 27
the thing to the person entitled to it. 28
(4) If the regulator decides to forfeit the thing under subsection 29
(1)(c), the regulator must tell the person entitled to the thing 30
of the decision by written notice. 31
(5) Subsection (4) does not apply if-- 32
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(a) the regulator can not find the person entitled to the 1
thing, after making reasonable inquiries; or 2
(b) it is impracticable or would be unreasonable to give the 3
notice. 4
(6) The notice must state-- 5
(a) the reasons for the decision; and 6
(b) that the person entitled to the thing may apply within 28 7
days after the date of the notice for the decision to be 8
reviewed; and 9
(c) how the person may apply for the review; and 10
(d) that the person may apply for a stay of the decision if the 11
person applies for a review. 12
(7) In deciding whether and, if so, what inquiries and efforts are 13
reasonable or whether it would be unreasonable to give notice 14
about a thing, regard must be had to the thing's nature, 15
condition and value. 16
(8) Any costs reasonably incurred by the State in storing or 17
disposing of a thing forfeited under subsection (1)(c) may be 18
recovered in a court of competent jurisdiction as a debt due to 19
the State from that person. 20
(9) In this section, person entitled to a thing means the person 21
from whom it was seized unless that person is not entitled to 22
possess it in which case it means the owner of the thing. 23
180 Return of seized things 24
(1) If a seized thing has not been forfeited, the person entitled to 25
the thing may apply to the regulator for the return of the thing 26
after the end of 6 months after it was seized. 27
(2) The regulator must return the thing to the applicant under 28
subsection (1) unless the regulator has reasonable grounds to 29
retain the thing. 30
(3) The regulator may impose any conditions on the return of the 31
thing under this section that the regulator considers 32
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appropriate to eliminate or minimise any risk to work health 1
or safety related to the thing. 2
(4) In this section, person entitled to a thing means the person 3
entitled to possess the thing or the owner of the thing. 4
181 Access to seized things 5
(1) Until a seized thing is forfeited or returned, the regulator must 6
permit the following persons to inspect it and, if it is a 7
document, to make copies of it at all reasonable times-- 8
(a) the person from whom the thing was seized; 9
(b) the owner of the thing; 10
(c) a person authorised by a person mentioned in paragraph 11
(a) or (b). 12
(2) Subsection (1) does not apply if it is impracticable or would 13
be unreasonable to allow inspection or copying. 14
Division 4 Damage and compensation 15
182 Damage etc. to be minimised 16
In the exercise, or purported exercise, of a compliance power, 17
an inspector must take all reasonable steps to ensure that the 18
inspector, and any assistant to the inspector, cause as little 19
inconvenience, detriment and damage as is practicable. 20
183 Inspector to give notice of damage 21
(1) This section applies if an inspector or an assistant to an 22
inspector damages a thing when exercising or purporting to 23
exercise a compliance power. 24
(2) The inspector must, as soon as practicable, give written notice 25
of the damage to the person who the inspector believes on 26
reasonable grounds, is the person in control of the thing. 27
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(3) If the inspector believes the damage was caused by a latent 1
defect in the thing or circumstances beyond the inspector's or 2
assistant's control, the inspector may state it in the notice. 3
(4) If, for any reason, it is impracticable to comply with 4
subsection (2), the inspector must leave the notice in a 5
conspicuous position and in a reasonably secure way where 6
the damage happened. 7
(5) This section does not apply to damage the inspector 8
reasonably believes is trivial. 9
184 Compensation 10
(1) A person may claim compensation from the State if the person 11
incurs loss or expense because of the exercise or purported 12
exercise of a power under division 3. 13
(2) Compensation may be claimed and ordered in a proceeding-- 14
(a) taken in a court of competent jurisdiction; or 15
(b) for an offence against this Act taken against the person 16
claiming compensation. 17
(3) The court may order compensation to be paid only if it is 18
satisfied it is just to make the order in the circumstances of the 19
particular case. 20
(4) A regulation may prescribe matters that may, or must, be 21
taken into account by the court when considering whether it is 22
just to make the order. 23
Division 5 Other matters 24
185 Power to require name and address 25
(1) An inspector may require a person to provide the person's 26
name and residential address if-- 27
(a) the inspector finds the person committing an offence 28
against this Act; or 29
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(b) the inspector finds the person in circumstances that lead, 1
or has information that leads, the inspector to reasonably 2
suspect the person has just committed an offence against 3
this Act. 4
(2) When asking a person to provide his or her name and 5
residential address, the inspector must-- 6
(a) tell the person the reason for the requirement to provide 7
his or her name and residential address; and 8
(b) warn the person that it is an offence to fail to state that 9
name and residential address, unless the person has a 10
reasonable excuse. 11
(3) If the inspector reasonably believes that the name or 12
residential address is false, the inspector may require the 13
person to give evidence of its correctness. 14
(4) A person must not, without reasonable excuse, refuse or fail to 15
comply with a requirement under subsection (1) or (3). 16
Maximum penalty--100 penalty units. 17
(5) Subsection (4) places an evidential burden on the defendant to 18
show a reasonable excuse. 19
(6) The person does not commit an offence against subsection (4) 20
if-- 21
(a) the person was required to state the person's name and 22
address by an inspector who suspected the person had 23
committed an offence against this Act; and 24
(b) the person is not proved to have committed the offence. 25
186 Inspector may take affidavits 26
An inspector is authorised to take affidavits for any purpose 27
relating or incidental to the exercise of his or her compliance 28
powers. 29
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187 Inspector at coronial inquests 1
Under and subject to the Coroners Act 2003, section 36, an 2
inspector may appear at and otherwise participate in any 3
coroners inquest into the cause of death of a worker while 4
carrying out work. 5
Division 6 Offences in relation to inspectors 6
188 Offence to hinder or obstruct inspector 7
A person must not intentionally hinder or obstruct an 8
inspector in exercising his or her compliance powers, or 9
induce or attempt to induce any other person to do so. 10
Maximum penalty--100 penalty units. 11
189 Offence to impersonate inspector 12
A person who is not an inspector must not, in any way, hold 13
himself or herself out to be an inspector. 14
Maximum penalty--100 penalty units. 15
190 Offence to assault, threaten or intimidate inspector 16
A person must not directly or indirectly assault, threaten or 17
intimidate, or attempt to assault, threaten or intimidate, an 18
inspector or a person assisting an inspector. 19
Maximum penalty--500 penalty units or 2 years 20
imprisonment. 21
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Part 10 Enforcement measures 1
Division 1 Improvement notices 2
191 Issue of improvement notices 3
(1) This section applies if an inspector reasonably believes that a 4
person-- 5
(a) is contravening a provision of this Act; or 6
(b) has contravened a provision in circumstances that make 7
it likely that the contravention will continue or be 8
repeated. 9
(2) The inspector may issue an improvement notice requiring the 10
person to-- 11
(a) remedy the contravention; or 12
(b) prevent a likely contravention from occurring; or 13
(c) remedy the things or operations causing the 14
contravention or likely contravention. 15
192 Contents of improvement notices 16
(1) An improvement notice must state-- 17
(a) that the inspector believes the person-- 18
(i) is contravening a provision of this Act; or 19
(ii) has contravened a provision in circumstances that 20
make it likely that the contravention will continue 21
or be repeated; and 22
(b) the provision the inspector believes is being, or has 23
been, contravened; and 24
(c) briefly, how the provision is being, or has been, 25
contravened; and 26
(d) the day by which the person is required to remedy the 27
contravention or likely contravention. 28
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(2) An improvement notice may include directions concerning 1
the measures to be taken to remedy the contravention or 2
prevent the likely contravention, or the matters or activities 3
causing the contravention or likely contravention, to which the 4
notice relates. 5
(3) The day stated for compliance with the improvement notice 6
must be reasonable in all the circumstances. 7
193 Compliance with improvement notice 8
The person to whom an improvement notice is issued must 9
comply with the notice within the period stated in the notice. 10
Maximum penalty--500 penalty units. 11
194 Extension of time for compliance with improvement 12
notices 13
(1) This section applies if a person has been issued with an 14
improvement notice. 15
(2) An inspector may, by written notice given to the person, 16
extend the compliance period for the improvement notice. 17
(3) However, the inspector may extend the compliance period 18
only if the period has not ended. 19
(4) In this section-- 20
compliance period means the period stated in the 21
improvement notice under section 192, and includes that 22
period as extended under this section. 23
Division 2 Prohibition notices 24
195 Power to issue prohibition notice 25
(1) This section applies if an inspector reasonably believes that-- 26
(a) an activity is occurring at a workplace that involves or 27
will involve a serious risk to the health or safety of a 28
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person emanating from an immediate or imminent 1
exposure to a hazard; or 2
(b) an activity may occur at a workplace that, if it occurs, 3
will involve a serious risk to the health or safety of a 4
person emanating from an immediate or imminent 5
exposure to a hazard. 6
(2) The inspector may give a person who has control over the 7
activity a direction prohibiting the carrying on of the activity, 8
or the carrying on of the activity in a stated way, until an 9
inspector is satisfied that the matters that give or will give rise 10
to the risk have been remedied. 11
(3) The direction may be given orally, but must be confirmed by 12
written notice (a prohibition notice) issued to the person as 13
soon as practicable. 14
196 Contents of prohibition notice 15
(1) A prohibition notice must state-- 16
(a) that the inspector believes that grounds for the issue of 17
the prohibition notice exist and the basis for that belief; 18
and 19
(b) briefly, the activity that the inspector believes involves 20
or will involve the risk and the matters that give or will 21
give rise to the risk; and 22
(c) the provision of this Act that the inspector believes is 23
being, or is likely to be, contravened by that activity. 24
(2) A prohibition notice may include directions on the measures 25
to be taken to remedy the risk, activities or matters to which 26
the notice relates, or the contravention or likely contravention 27
mentioned in subsection (1)(c). 28
(3) Without limiting section 195, a prohibition notice that 29
prohibits the carrying on of an activity in a stated way may do 30
so by specifying 1 or more of the following-- 31
(a) a workplace, or part of a workplace, at which the 32
activity is not to be carried out; 33
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(b) anything that is not to be used in connection with the 1
activity; 2
(c) any procedure that is not to be followed in connection 3
with the activity. 4
197 Compliance with prohibition notice 5
The person to whom a direction is given under section 195(2) 6
or a prohibition notice is issued must comply with the 7
direction or notice. 8
Maximum penalty--1000 penalty units. 9
Division 3 Non-disturbance notices 10
198 Issue of non-disturbance notice 11
An inspector may issue a non-disturbance notice to the person 12
with management or control of a workplace if the inspector 13
reasonably believes that it is necessary to do so to facilitate the 14
exercise of his or her compliance powers. 15
199 Contents of non-disturbance notice 16
(1) A non-disturbance notice may require the person to-- 17
(a) preserve the site at which a notifiable incident has 18
occurred for a stated period; or 19
(b) prevent the disturbance of a particular site (including the 20
operation of plant) in other circumstances for a stated 21
period that is reasonable in the circumstances. 22
(2) A non-disturbance notice must state the period (of no more 23
than 7 days) for which it applies and set out-- 24
(a) the obligations of the person to whom the notice is 25
issued; and 26
(b) the measures to be taken to preserve a site or prevent 27
disturbance of a site; and 28
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(c) the penalty for contravening the notice. 1
(3) In subsection (1) a reference to a site includes any plant, 2
substance, structure or thing associated with the site. 3
(4) A non-disturbance notice does not prevent any action-- 4
(a) to assist an injured person; or 5
(b) to remove a deceased person; or 6
(c) that is essential to make the site safe or to prevent a 7
further incident; or 8
(d) that is associated with a police investigation; or 9
(e) for which an inspector has given permission. 10
200 Compliance with non-disturbance notice 11
(1) A person must not, without reasonable excuse, refuse or fail to 12
comply with a non-disturbance notice issued to the person. 13
Maximum penalty--500 penalty units. 14
(2) Subsection (1) places an evidential burden on the defendant to 15
show a reasonable excuse. 16
201 Issue of subsequent notices 17
If an inspector considers it necessary to do so, he or she may 18
issue 1 or more subsequent non-disturbance notices to a 19
person, whether before or after the expiry of the previous 20
notice, each of which must comply with section 199. 21
Division 4 General requirements applying to 22
notices 23
202 Application of division 24
In this division notice means improvement notice, prohibition 25
notice or non-disturbance notice. 26
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203 Notice to be in writing 1
A notice must be in writing. 2
204 Directions in notices 3
A direction included in an improvement notice or prohibition 4
notice may-- 5
(a) refer to a code of practice; and 6
(b) offer the person to whom it is issued a choice of ways in 7
which to remedy the contravention. 8
205 Recommendations in notice 9
(1) An improvement notice or prohibition notice may include 10
recommendations. 11
(2) It is not an offence to fail to comply with recommendations in 12
a notice. 13
206 Changes to notice by inspector 14
(1) An inspector may make minor changes to a notice-- 15
(a) for clarification; or 16
(b) to correct errors or references; or 17
(c) to reflect changes of address or other circumstances. 18
(2) An inspector may also, under section 194, extend the 19
compliance period for an improvement notice. 20
207 Regulator may vary or cancel notice 21
Except as provided in section 206, a notice issued by an 22
inspector may only be varied or cancelled by the regulator. 23
208 Formal irregularities or defects in notice 24
A notice is not invalid only because of-- 25
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(a) a formal defect or irregularity in the notice unless the 1
defect or irregularity causes or is likely to cause 2
substantial injustice; or 3
(b) a failure to use the correct name of the person to whom 4
the notice is issued if the notice sufficiently identifies 5
the person and is issued or given to the person under 6
section 209. 7
209 Issue and giving of notice 8
(1) A notice may be issued or given to a person-- 9
(a) by delivering it personally to the person or sending it by 10
post or facsimile or electronic transmission to the 11
person's usual or last known place of residence or 12
business; or 13
(b) by leaving it for the person at the person's usual or last 14
known place of residence or business with a person who 15
appears to be over 16 years and who appears to reside or 16
work there; or 17
(c) by leaving it for the person at the workplace to which 18
the notice relates with a person who is or appears to be 19
the person with management or control of the 20
workplace; or 21
(d) in a prescribed way. 22
(2) A regulation may prescribe-- 23
(a) the way of issuing a notice; and 24
(b) the steps a person to whom a notice is issued must take 25
to bring it to the attention of other persons. 26
210 Display of notice 27
(1) A person to whom a notice is issued must, as soon as possible, 28
display a copy of the notice in a prominent place at or near the 29
workplace, or part of the workplace, at which work is being 30
carried out that is affected by the notice. 31
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Part 10 Enforcement measures
[s 211]
Maximum penalty--50 penalty units. 1
(2) A person must not intentionally remove, destroy, damage or 2
deface a notice displayed under subsection (1) while the 3
notice is in force. 4
Maximum penalty--50 penalty units. 5
Division 5 Remedial action 6
211 When regulator may carry out action 7
(1) This section applies if a person to whom a prohibition notice 8
is issued fails to take reasonable steps to comply with the 9
notice. 10
(2) The regulator may take any remedial action the regulator 11
believes reasonable to make the workplace or situation safe 12
after giving written notice to the person to whom the 13
prohibition notice was issued of-- 14
(a) the regulator's intention to take that action; and 15
(b) the owner's or person's liability for the costs of that 16
action. 17
212 Power of the regulator to take other remedial action 18
(1) This section applies if the regulator reasonably believes that-- 19
(a) circumstances in which a prohibition notice can be 20
issued exist; and 21
(b) a prohibition notice can not be issued at a workplace 22
because, after taking reasonable steps, the person with 23
management or control of the workplace can not be 24
found. 25
(2) The regulator may take any remedial action necessary to make 26
the workplace safe. 27
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Part 10 Enforcement measures
[s 213]
213 Costs of remedial or other action 1
The regulator may recover the reasonable costs of any 2
remedial action taken under-- 3
(a) section 211 from the person to whom the notice is 4
issued; or 5
(b) section 212 from any person to whom the prohibition 6
notice could have been issued in relation to the matter; 7
as a debt due to the regulator. 8
Division 6 Injunctions 9
214 Application of division 10
In this division, notice means improvement notice, prohibition 11
notice or non-disturbance notice. 12
215 Injunctions for noncompliance with notices 13
(1) The regulator may apply to a Magistrates Court for an 14
injunction-- 15
(a) compelling a person to comply with a notice; or 16
(b) restraining a person from contravening a notice. 17
(2) The regulator may do so-- 18
(a) whether or not proceedings have been taken for an 19
offence against this Act in connection with any matter in 20
relation to which the notice was issued; and 21
(b) whether any period for compliance with the notice has 22
expired. 23
Page 151
Work Health and Safety Bill 2011
Part 11 Enforceable undertakings
[s 216]
Part 11 Enforceable undertakings 1
216 Regulator may accept WHS undertakings 2
(1) The regulator may accept a written undertaking (a WHS 3
undertaking) given by a person in connection with a matter 4
relating to a contravention or alleged contravention by the 5
person of this Act. 6
Note-- 7
Section 230(3) requires the regulator to publish guidelines in relation to 8
the acceptance of WHS undertakings. 9
(2) A WHS undertaking can not be accepted for a contravention 10
or alleged contravention that is a category 1 offence. 11
(3) The giving of a WHS undertaking does not constitute an 12
admission of guilt by the person giving it in relation to the 13
contravention or alleged contravention to which the 14
undertaking relates. 15
217 Notice of decision and reasons for decision 16
(1) The regulator must give the person seeking to make a WHS 17
undertaking written notice of the regulator's decision to 18
accept or reject the WHS undertaking and of the reasons for 19
the decision. 20
(2) The regulator must publish, on the regulator's website, notice 21
of a decision to accept a WHS undertaking and the reasons for 22
that decision. 23
218 When a WHS undertaking is enforceable 24
A WHS undertaking takes effect and becomes enforceable 25
when the regulator's decision to accept the undertaking is 26
given to the person who made the undertaking or at any later 27
date stated by the regulator. 28
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Part 11 Enforceable undertakings
[s 219]
219 Compliance with WHS undertaking 1
A person must not contravene a WHS undertaking made by 2
that person that is in effect. 3
Maximum penalty--500 penalty units. 4
220 Contravention of WHS undertaking 5
(1) The regulator may apply to a Magistrates Court for an order if 6
a person contravenes a WHS undertaking. 7
(2) If the court is satisfied that the person who made the WHS 8
undertaking has contravened the undertaking, the court, in 9
addition to the imposition of any penalty, may make 1 or both 10
of the following orders-- 11
(a) an order directing the person to comply with the 12
undertaking; 13
(b) an order discharging the undertaking. 14
(3) In addition to the orders mentioned in subsection (2), the court 15
may make any other order that the court considers appropriate 16
in the circumstances, including orders directing the person to 17
pay to the State-- 18
(a) the costs of the proceedings; and 19
(b) the reasonable costs of the regulator in monitoring 20
compliance with the WHS undertaking in the future. 21
(4) Nothing in this section prevents proceedings being taken for 22
the contravention or alleged contravention of this Act to 23
which the WHS undertaking relates. 24
Note-- 25
Section 222 specifies circumstances affecting proceedings for a 26
contravention for which a WHS undertaking has been given. 27
221 Withdrawal or variation of WHS undertaking 28
(1) A person who has made a WHS undertaking may at any time, 29
with the written agreement of the regulator-- 30
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Part 12 Review of decisions
[s 222]
(a) withdraw the undertaking; or 1
(b) vary the undertaking. 2
(2) However, the provisions of the undertaking can not be varied 3
to provide for a different alleged contravention of the Act. 4
(3) The regulator must publish, on the regulator's website, notice 5
of the withdrawal or variation of a WHS undertaking. 6
222 Proceeding for alleged contravention 7
(1) Subject to this section, no proceedings for a contravention or 8
alleged contravention of this Act may be taken against a 9
person if a WHS undertaking is in effect in relation to that 10
contravention. 11
(2) No proceedings may be taken for a contravention or alleged 12
contravention of this Act against a person who has made a 13
WHS undertaking in relation to that contravention and has 14
completely discharged the WHS undertaking. 15
(3) The regulator may accept a WHS undertaking in relation to a 16
contravention or alleged contravention before proceedings in 17
relation to that contravention have been finalised. 18
(4) If the regulator accepts a WHS undertaking before the 19
proceedings are finalised, the regulator must take all 20
reasonable steps to have the proceedings discontinued as soon 21
as possible. 22
Part 12 Review of decisions 23
Division 1 Reviewable decisions 24
223 Which decisions are reviewable 25
(1) The table in schedule 2A states-- 26
Page 154
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Part 12 Review of decisions
[s 224]
(a) decisions made under this Act that are reviewable under 1
this part (reviewable decisions); and 2
(b) who is eligible to apply for review of a reviewable 3
decision (the eligible person); and 4
(c) the body (the external review body) on which 5
jurisdiction is conferred to hear and decide an external 6
review relating to a reviewable decision. 7
(2) Unless the contrary intention appears, a reference in this part 8
and schedule 2A to a decision includes a reference to-- 9
(a) making, suspending, revoking or refusing to make an 10
order, determination or decision; or 11
(b) giving, suspending, revoking or refusing to give a 12
direction, approval, consent or permission; or 13
(c) issuing, suspending, revoking or refusing to issue an 14
authorisation; or 15
(d) imposing a condition; or 16
(e) making a declaration, demand or requirement; or 17
(f) retaining, or refusing to deliver up, a thing; or 18
(g) doing or refusing to do any other act or thing. 19
(3) A reference in schedule 2A to a person entitled to a thing 20
means the person from whom it was seized unless that person 21
is not entitled to possess it, in which case it means the owner 22
of the thing. 23
Note-- 24
Decisions under a regulation that will be reviewable decisions will be 25
stated in the regulation. 26
Division 2 Internal review 27
224 Application for internal review 28
(1) An eligible person in relation to a reviewable decision, other 29
than a decision made by the regulator or a delegate of the 30
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Part 12 Review of decisions
[s 225]
regulator, may apply to the regulator for review (an internal 1
review) of the decision within-- 2
(a) the prescribed time after the day on which the decision 3
first came to the eligible person's notice; or 4
(b) the longer period the regulator allows. 5
(2) The application must be made in the way and in the form 6
required by the regulator. 7
(3) For this section, the prescribed time is-- 8
(a) for a decision to issue an improvement notice the period 9
stated in the notice for compliance with the notice or 14 10
days, whichever is the lesser; and 11
(b) otherwise--14 days. 12
225 Internal reviewer 13
(1) The regulator may appoint a person or body to review 14
decisions on applications under this division. 15
(2) The person who made the decision can not be an internal 16
reviewer in relation to that decision. 17
226 Decision of internal reviewer 18
(1) The internal reviewer must review the reviewable decision and 19
make a decision as soon as is reasonably practicable and 20
within 14 days after the application for internal review is 21
received. 22
(2) The decision may be-- 23
(a) to confirm or vary the reviewable decision; or 24
(b) to set aside the reviewable decision and substitute 25
another decision that the internal reviewer considers 26
appropriate. 27
(3) If the internal reviewer seeks further information from the 28
applicant, the 14-day period ceases to run until the applicant 29
provides the information to the internal reviewer. 30
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Part 12 Review of decisions
[s 227]
(4) The applicant must provide the further information within the 1
time (being not less than 7 days) stated by the internal 2
reviewer in the request for information. 3
(5) If the applicant does not provide the further information 4
within the required time, the decision is taken to have been 5
confirmed by the internal reviewer at the end of that time. 6
(6) If the reviewable decision is not varied or set aside within the 7
14-day period, the decision is taken to have been confirmed 8
by the internal reviewer. 9
227 Decision on internal review 10
As soon as practicable after reviewing the decision, the 11
internal reviewer must give the applicant in writing-- 12
(a) the decision on the internal review; and 13
(b) the reasons for the decision. 14
228 Stay of reviewable decisions on internal review 15
(1) An application for an internal review of a reviewable decision 16
(other than a decision to issue a prohibition notice or a 17
non-disturbance notice) stays the operation of the decision. 18
(2) If an application is made for an internal review of a decision to 19
issue a prohibition notice or a non-disturbance notice, the 20
reviewer may stay the operation of the decision. 21
(3) The reviewer may make the decision to stay the operation of a 22
decision on the reviewer's own initiative or on the application 23
of the applicant for review. 24
(4) The reviewer must make a decision on an application for a 25
stay within 1 working day after the reviewer receives the 26
application. 27
(5) If the reviewer has not made a decision to stay a decision 28
within the time set out in subsection (4), the reviewer is taken 29
to have made a decision to grant a stay. 30
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Part 12 Review of decisions
[s 229]
(6) A stay of the operation of a decision pending a decision on an 1
internal review continues until whichever of the following is 2
the earlier-- 3
(a) the end of the prescribed period for applying for an 4
external review of the decision made on the internal 5
review; 6
(b) an application for external review is made. 7
Division 3 External review 8
229 Application for external review 9
(1) An eligible person may apply to the external review body for a 10
review (an external review) of-- 11
(a) a reviewable decision made by the regulator; or 12
(b) a decision made, or taken to have been made, on an 13
internal review. 14
(2) A review by QCAT is provided for under the QCAT Act. 15
Note-- 16
See QCAT Act, chapter 2, part 1, division 3 (Review jurisdiction). 17
(3) A review by the commission is provided for under division 4. 18
Division 4 Review by commission 19
229A Decision 20
A person applying for an external review by the commission 21
(a review) of a decision (the decision) has a right to a 22
statement of-- 23
(a) the decision; and 24
(b) the reasons for the decision. 25
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Part 12 Review of decisions
[s 229B]
Note-- 1
In relation to the numbering of this division, see the note to section 3. 2
229B How to start review 3
(1) A review is started by-- 4
(a) filing a written application for a review with the 5
industrial registrar; and 6
(b) complying with the rules applying to applications for 7
reviews by the commission under the Industrial 8
Relations Act 1999. 9
(2) The application for a review must be filed within 30 days after 10
the day on which the decision first came to the applicant's 11
notice. 12
(3) The commission may at any time extend the period for filing 13
the application for a review. 14
(4) The application for a review must state fully the grounds of 15
the application and the facts relied on. 16
229C Stay of operation of decision 17
(1) The commission may grant a stay of the decision to secure the 18
effectiveness of the review. 19
(2) A stay-- 20
(a) may be given on the conditions the commission 21
considers appropriate; and 22
(b) operates for the period fixed by the commission; and 23
(c) may be revoked or amended by the commission. 24
(3) The period of a stay must not extend past the time when the 25
commission decides the application. 26
(4) An application affects the decision, or carrying out of the 27
decision, only if the decision is stayed. 28
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Part 12 Review of decisions
[s 229D]
229D Hearing procedures 1
(1) The procedure for an application for a review is to be under 2
the rules applying to applications for review by the 3
commission under the Industrial Relations Act 1999 or, if the 4
rules make no provision or insufficient provision, in 5
accordance with directions of the commission. 6
(2) An application for a review is to be dealt with by way of 7
rehearing, unaffected by the decision. 8
229E Powers of commission on application 9
(1) In deciding an application for a review, the commission 10
may-- 11
(a) confirm the decision; or 12
(b) vary the decision; or 13
(c) set aside the decision and make a decision in 14
substitution for it; or 15
(d) set aside the decision and return the issue to the 16
decision-maker with directions the commission 17
considers appropriate. 18
(2) If the commission acts under subsection (1)(b) or (c), the 19
decision is taken, for this Act (other than this part), to be that 20
of the person whose decision was the subject of the 21
application. 22
229F Appeals 23
A person dissatisfied with the decision of the commission 24
may appeal under the Industrial Relations Act 1999, chapter 25
9. 26
Note-- 27
See the Industrial Relations Act 1999, sections 341(1) and 342(1). 28
Page 160
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Part 13 Legal proceedings
[s 230]
Part 13 Legal proceedings 1
Division 1 General matters 2
230 Prosecutions 3
(1AA) Proceedings for an offence against this Act, other than a 4
category 1 offence, must be taken in a summary way under the 5
Justices Act 1886. 6
Note-- 7
In relation to the numbering of this section, see the note to section 3. 8
(1) Subject to subsection (4), proceedings for an offence against 9
this Act may only be taken by-- 10
(a) the regulator; or 11
(b) an inspector with the written authorisation of the 12
regulator, either generally or in a particular case. 13
(2) An authorisation under subsection (1)(b) is sufficient 14
authority to continue proceedings in any case where the court 15
amends the charge, warrant or summons. 16
(3) The regulator must issue, and publish on the regulator's 17
website, general guidelines in relation to-- 18
(a) the prosecution of offences under this Act; and 19
(b) the acceptance of WHS undertakings under this Act. 20
(4) Nothing in this section affects the ability of the director of 21
public prosecutions to bring proceedings for an offence 22
against this Act. 23
231 Procedure if prosecution is not brought 24
(1) If-- 25
(a) a person reasonably considers that an act or omission 26
constitutes a category 1 offence or a category 2 offence; 27
and 28
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Part 13 Legal proceedings
[s 231]
(b) no prosecution has been brought in relation to the act or 1
omission after 6 months but not later than 12 months 2
after the act or omission happens; 3
the person may make a written request to the regulator that a 4
prosecution be brought. 5
(2) Within 3 months after the regulator receives a request the 6
regulator must-- 7
(a) advise the person, in writing-- 8
(i) whether the investigation is complete; and 9
(ii) if the investigation is complete, whether a 10
prosecution has been or will be brought or give 11
reasons why a prosecution will not be brought; and 12
(b) advise the person who the applicant believes committed 13
the offence of the application and of the matters set out 14
in paragraph (a). 15
(3) If the regulator advises the person that a prosecution for a 16
category 1 or category 2 offence will not be brought, the 17
regulator must-- 18
(a) advise the person that the person may ask the regulator 19
to refer the matter to the director of public prosecutions 20
for consideration; and 21
(b) if the person makes a written request to the regulator to 22
do so, refer the matter to the director of public 23
prosecutions within 1 month of the request. 24
(4) The director of public prosecutions must consider the matter 25
and advise (in writing) the regulator within 1 month as to 26
whether the director considers that a prosecution should be 27
brought. 28
(5) The regulator must ensure a copy of the advice is given to-- 29
(a) the person who made the request; and 30
(b) the person who the applicant believes committed the 31
offence. 32
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Part 13 Legal proceedings
[s 232]
(6) If the regulator declines to follow the advice of the director of 1
public prosecutions to bring proceedings, the regulator must 2
give written reasons for the decision to any person to whom a 3
copy of the advice is given under subsection (5). 4
232 Limitation period for prosecutions 5
(1) Proceedings for an offence against this Act may be taken 6
within the latest of the following periods-- 7
(a) within 2 years after the offence first comes to the notice 8
of the regulator; 9
(b) within 1 year after a coronial report was made or a 10
coronial inquiry or inquest ended, if it appeared from the 11
report or the proceedings at the inquiry or inquest that 12
an offence had been committed against this Act; 13
(c) if a WHS undertaking has been given in relation to the 14
offence, within 6 months after-- 15
(i) the WHS undertaking is contravened; or 16
(ii) it comes to the notice of the regulator that the WHS 17
undertaking has been contravened; or 18
(iii) the regulator has agreed under section 221 to the 19
withdrawal of the WHS undertaking. 20
(2) A proceeding for a category 1 offence may be taken after the 21
end of the applicable limitation period in subsection (1) if 22
fresh evidence relevant to the offence is discovered and the 23
court is satisfied that the evidence could not reasonably have 24
been discovered within the relevant limitation period. 25
233 Multiple contraventions of health and safety duty 26
provision 27
(1) Two or more contraventions of a health and safety duty 28
provision by a person that arise out of the same factual 29
circumstances may be charged as a single offence or as 30
separate offences. 31
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Part 13 Legal proceedings
[s 234]
(2) This section does not authorise contraventions of 2 or more 1
health and safety duty provisions to be charged as a single 2
offence. 3
(3) A single penalty only may be imposed in relation to 2 or more 4
contraventions of a health and safety duty provision that are 5
charged as a single offence. 6
(4) In this section health and safety duty provision means a 7
provision of part 2, division 2, 3 or 4. 8
Division 2 Sentencing for offences 9
234 Application of this division 10
This division applies if a court convicts a person, or finds a 11
person guilty (the offender), of an offence against this Act. 12
235 Orders generally 13
(1) One or more orders may be made under this division against 14
the offender. 15
(2) Orders may be made under this division in addition to any 16
penalty that may be imposed or any other action that may be 17
taken in relation to the offence. 18
236 Adverse publicity orders 19
(1) The court may make an order (an adverse publicity order) in 20
relation to the offender requiring the offender-- 21
(a) to take either or both of the following actions within the 22
period stated in the order-- 23
(i) to publicise, in the way stated in the order, the 24
offence, its consequences, the penalty imposed and 25
any other related matter; 26
(ii) to notify a stated person or stated class of persons, 27
in the way stated in the order, of the offence, its 28
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Part 13 Legal proceedings
[s 237]
consequences, the penalty imposed and any other 1
related matter; and 2
(b) to give the regulator, within 7 days after the end of the 3
period stated in the order, evidence that the action or 4
actions were taken by the offender in accordance with 5
the order. 6
(2) The court may make an adverse publicity order on its own 7
initiative or on the application of the person prosecuting the 8
offence. 9
(3) If the offender fails to give evidence to the regulator as 10
provided under subsection (1)(b), the regulator, or a person 11
authorised in writing by the regulator, may take the action or 12
actions stated in the order. 13
(4) However, if-- 14
(a) the offender gives evidence to the regulator as provided 15
under subsection (1)(b); and 16
(b) despite that evidence, the regulator is not satisfied that 17
the offender has taken the action or actions stated in the 18
order in accordance with the order; 19
the regulator may apply to the court for an order authorising 20
the regulator, or a person authorised in writing by the 21
regulator, to take the action or actions. 22
(5) If the regulator or a person authorised in writing by the 23
regulator takes an action or actions under subsection (3) or an 24
order under subsection (4), the regulator is entitled to recover 25
from the offender, by action in a court of competent 26
jurisdiction, an amount in relation to the reasonable expenses 27
of taking the action or actions as a debt due to the regulator. 28
237 Orders for restoration 29
(1) The court may order the offender to take steps stated in the 30
order, within the period so stated, to remedy any matter 31
caused by the commission of the offence that appears to the 32
court to be within the offender's power to remedy. 33
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Part 13 Legal proceedings
[s 238]
(2) The period in which an order under this section must be 1
complied with may be extended, or further extended, by order 2
of the court but only if an application for the extension is 3
made before the end of that period. 4
238 Work health and safety project orders 5
(1) The court may make an order requiring the offender to 6
undertake a stated project for the general improvement of 7
work health and safety within the period stated in the order. 8
(2) The order may state conditions that must be complied with in 9
undertaking the project. 10
239 Release on the giving of a court-ordered WHS 11
undertaking 12
(1) The court may (with or without recording a conviction) 13
adjourn the proceeding for a period of up to 2 years and make 14
an order for the release of the offender on the offender giving 15
an undertaking with stated conditions (a court-ordered WHS 16
undertaking). 17
(2) A court-ordered WHS undertaking must state the following 18
conditions-- 19
(a) that the offender appears before the court if called on to 20
do so during the period of the adjournment and, if the 21
court so states, at the time to which the further hearing is 22
adjourned; 23
(b) that the offender does not commit, during the period of 24
the adjournment, any offence against this Act; 25
(c) that the offender observes any special conditions 26
imposed by the court. 27
(3) An offender who has given a court-ordered WHS undertaking 28
under this section may be called on to appear before the court 29
by order of the court. 30
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Part 13 Legal proceedings
[s 240]
(4) An order under subsection (3) must be served on the offender 1
not less than four days before the time stated in it for the 2
appearance. 3
(5) If the court is satisfied at the time to which a further hearing of 4
a proceeding is adjourned that the offender has observed the 5
conditions of the court-ordered WHS undertaking, it must 6
discharge the offender without any further hearing of the 7
proceeding. 8
240 Injunctions 9
The court may issue an injunction requiring the offender to 10
cease contravening this Act. 11
Note-- 12
An injunction may also be obtained under section 215 for 13
noncompliance with a non-disturbance notice, improvement notice or 14
prohibition notice. 15
241 Training orders 16
The court may make an order requiring the offender to 17
undertake or arrange for 1 or more workers to undertake a 18
stated course of training. 19
242 Offence to fail to comply with order 20
(1) A person must not, without reasonable excuse, fail to comply 21
with an order under this division. 22
Maximum penalty--500 penalty units. 23
(2) Subsection (1) places an evidential burden on the defendant to 24
show a reasonable excuse. 25
(3) This section does not apply to an order or injunction under 26
section 239 or 240. 27
Page 167
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Part 13 Legal proceedings
[s 243]
Division 3 1
243 Division and section number not used 2
See the note to section 3. 3
Division 4 Offences by bodies corporate 4
244 Imputing conduct to bodies corporate 5
(1) For this Act, any conduct engaged in on behalf of a body 6
corporate by an employee, agent or officer of the body 7
corporate acting within the actual or apparent scope of his or 8
her employment, or within his or her actual or apparent 9
authority, is conduct also engaged in by the body corporate. 10
(2) If an offence under this Act requires proof of knowledge, 11
intention or recklessness, it is sufficient in proceedings against 12
a body corporate for the offence to prove that the person 13
mentioned in subsection (1) had the relevant knowledge, 14
intention or recklessness. 15
(3) If for an offence against this Act mistake of fact is relevant to 16
determining liability, it is sufficient in proceedings against a 17
body corporate for the offence if the person mentioned in 18
subsection (1) made the mistake of fact. 19
Division 5 The State, Commonwealth and 20
other States 21
245 Offences and the State, Commonwealth and other States 22
(1) If the State, Commonwealth or another State is found guilty of 23
an offence against this Act, the penalty to be imposed on the 24
State, Commonwealth or other State is the penalty applicable 25
to a body corporate. 26
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Part 13 Legal proceedings
[s 246]
(2) For this Act, conduct engaged in on behalf of the State, 1
Commonwealth or another State by an employee, agent or 2
officer of the State, Commonwealth or other State acting 3
within the actual or apparent scope of his or her employment, 4
or within his or her actual or apparent authority, is conduct 5
also engaged in by the State, Commonwealth or other State. 6
(3) If an offence under this Act requires proof of knowledge, 7
intention or recklessness, it is sufficient in proceedings against 8
the State, Commonwealth or another State for the offence to 9
prove that the person mentioned in subsection (2) had the 10
relevant knowledge, intention or recklessness. 11
(4) If for an offence against this Act mistake of fact is relevant to 12
determining liability, it is sufficient in proceedings against the 13
State, Commonwealth or another State for the offence if the 14
person mentioned in subsection (2) made the mistake of fact. 15
246 WHS civil penalty provisions and the State, 16
Commonwealth and other States 17
(1) If the State, Commonwealth or another State contravenes a 18
WHS civil penalty provision, the monetary penalty to be 19
imposed on the State, Commonwealth or other State is the 20
penalty applicable to a body corporate. 21
(2) For a WHS civil penalty provision, conduct engaged in on 22
behalf of the State, Commonwealth or another State by an 23
employee, agent or officer of the State, Commonwealth or 24
other State acting within the actual or apparent scope of his or 25
her employment, or within his or her actual or apparent 26
authority, is conduct also engaged in by the State, 27
Commonwealth or other State. 28
(3) If a WHS civil penalty provision requires proof of knowledge, 29
it is sufficient in proceedings against the State, 30
Commonwealth or another State for a contravention of that 31
provision to prove that the person mentioned in subsection (2) 32
had the knowledge. 33
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Part 13 Legal proceedings
[s 247]
247 Officers 1
(1) A person who makes, or participates in making, decisions that 2
affect the whole, or a substantial part, of the business or 3
undertaking of the State, Commonwealth or another State is 4
taken to be an officer of the State, Commonwealth or other 5
State for the purposes of this Act. 6
(2) A Minister of a State or the Commonwealth is not in that 7
capacity an officer for the purposes of this Act. 8
248 Responsible agency for the State, Commonwealth or 9
another State 10
(1) The following notices may be given to or served on the 11
responsible agency-- 12
(a) a provisional improvement notice, improvement notice, 13
prohibition notice, non-disturbance notice or notice of 14
entry under part 7 to be given to or served on the State, 15
Commonwealth or another State under this Act; 16
(b) an infringement notice for an offence against this Act to 17
be given to or served on the State, Commonwealth or 18
another State. 19
(2) If an infringement notice is to be served on the State, 20
Commonwealth or another State for an offence against this 21
Act, the responsible agency may be stated in the infringement 22
notice. 23
(3) If proceedings are taken against the State, Commonwealth or 24
another State for an offence against this Act or in relation to a 25
contravention of this Act, the responsible agency in relation to 26
the offence or contravention may be stated in any document 27
initiating, or relating to, the proceedings. 28
(4) The responsible agency in relation to an offence or a 29
contravention of this Act is entitled to act in proceedings 30
against the State, Commonwealth or other State for the 31
offence or relating to the contravention and, subject to any 32
relevant rules of court, the procedural rights and obligations of 33
the State, Commonwealth or other State as the accused or 34
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[s 248]
defendant in the proceedings are conferred or imposed on the 1
responsible agency. 2
(5) The person prosecuting the offence or bringing the 3
proceedings may change the responsible agency during the 4
proceedings with the court's leave. 5
(6) In this section, the responsible agency-- 6
(a) in relation to a notice mentioned in subsection (1) is the 7
following-- 8
(i) for a provisional improvement notice, 9
improvement notice or infringement notice--the 10
agency of the State, Commonwealth or other State, 11
the acts or omissions of which are alleged to 12
contravene this Act; 13
(ii) for a prohibition notice--the agency of the State, 14
Commonwealth or other State that has control over 15
the activity mentioned in section 195(1)(a) or (b); 16
(iii) for a non-disturbance notice--the agency of the 17
State, Commonwealth or other State with the 18
management and control of the workplace; 19
(iv) for a notice of entry under part 7--the agency of 20
the State, Commonwealth or other State 21
conducting the relevant business or undertaking or 22
with the management and control of the 23
workplace; and 24
(b) in relation to an offence or proceedings for a 25
contravention of this Act, is the agency of the State, 26
Commonwealth or other State-- 27
(i) the acts or omissions of which are alleged to 28
constitute the offence or contravention; or 29
(ii) if that agency has ceased to exist--that is the 30
successor of that agency; or 31
(iii) if that agency has ceased to exist and there is no 32
clear successor--that the court declares to be the 33
responsible agency. 34
Page 171
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[s 249]
Division 6 Public authorities 1
249 Application to public authorities that are bodies 2
corporate or local governments 3
This division applies only to public authorities that are bodies 4
corporate or are local governments. 5
250 Proceedings against public authorities 6
(1) Proceedings may be taken under this Act against a public 7
authority in its own name. 8
(1A) Proceedings may be taken under this Act against a local 9
government, and a local government may be prosecuted and 10
punished, as if it were a body corporate. 11
(2) Nothing in this division affects any privileges that a public 12
authority may have under the State, Commonwealth or 13
another State. 14
251 Imputing conduct to public authorities 15
(1) For this Act, any conduct engaged in on behalf of a public 16
authority by an employee, agent or officer of the public 17
authority acting within the actual or apparent scope of his or 18
her employment, or within his or her actual or apparent 19
authority, is conduct also engaged in by the public authority. 20
(2) If an offence against this Act requires proof of knowledge, 21
intention or recklessness, it is sufficient in proceedings against 22
the public authority for that offence to prove that the person 23
mentioned in subsection (1) had the relevant knowledge, 24
intention or recklessness. 25
(3) If for an offence against this Act mistake of fact is relevant to 26
determining liability, it is sufficient in proceedings against the 27
public authority for that offence if the person mentioned in 28
subsection (1) made that mistake of fact. 29
Page 172
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[s 252]
252 Officer of public authority 1
A person who makes, or participates in making, decisions that 2
affect the whole, or a substantial part, of the business or 3
undertaking of a public authority is taken to be an officer of 4
the public authority for the purposes of this Act. 5
253 Proceedings against successors to public authorities 6
(1) Proceedings for an offence against this Act that were 7
instituted against a public authority before its dissolution, or 8
that could have been instituted against a public authority if not 9
for its dissolution, may be continued or instituted against its 10
successor if the successor is a public authority. 11
(2) An infringement notice served on a public authority for an 12
offence against this Act is taken to be an infringement notice 13
served on its successor if the successor is a public authority. 14
(3) Similarly, any penalty paid by a public authority in relation to 15
an infringement notice is taken to be a penalty paid by its 16
successor if the successor is a public authority. 17
Division 7 WHS civil penalty provisions 18
254 When is a provision a WHS civil penalty provision 19
(1) A subsection of a section of part 7 (or a section of part 7 that 20
is not divided into subsections) is a WHS civil penalty 21
provision if-- 22
(a) the words "WHS civil penalty provision" and one or 23
more amounts by way of monetary penalty are set out at 24
the foot of the subsection (or section); or 25
(b) another provision of part 7 states that the subsection (or 26
section) is a WHS civil penalty provision. 27
(2) A subsection of a section of a regulation (or a section of a 28
regulation that is not divided into subsections) is a WHS civil 29
penalty provision if-- 30
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[s 255]
(a) the words "WHS civil penalty provision" and one or 1
more amounts by way of monetary penalty are set out at 2
the foot of the subsection (or section); or 3
(b) another provision of the regulation states that the 4
subsection (or section) is a WHS civil penalty provision. 5
255 Proceedings for contravention of WHS civil penalty 6
provision 7
(1) Subject to this division, proceedings may be taken in a 8
Magistrates Court (the court) against a person for a 9
contravention of a WHS civil penalty provision. 10
Note-- 11
The Uniform Civil Procedure Rules 1999 generally apply. 12
(2) If a body corporate contravenes a civil penalty provision, the 13
value of the penalty units applying to the contravention is 14
calculated under the Penalties and Sentences Act 1992, 15
section 181B (the calculation section). 16
(3) For subsection (2), a reference in the calculation section to the 17
maximum fine for an offence includes a reference to the 18
maximum penalty for the contravention of the civil penalty 19
provision. 20
Note-- 21
A term penalty unit has the meaning given under the Penalties and 22
Sentences Act 1992, section 5--see the Acts Interpretation Act 1954, 23
section 36, definition penalty unit. 24
256 Involvement in contravention treated in same way as 25
actual contravention 26
(1) A person who is involved in a contravention of a WHS civil 27
penalty provision is taken to have contravened that provision. 28
(2) A person is involved in a contravention of a civil penalty 29
provision if, and only if, the person-- 30
(a) has aided, abetted, counselled or procured the 31
contravention; or 32
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[s 257]
(b) has induced the contravention, whether by threats or 1
promises or otherwise; or 2
(c) has been in any way, by act or omission, directly or 3
indirectly, knowingly concerned in or party to the 4
contravention; or 5
(d) has conspired with others to effect the contravention. 6
257 Contravening a civil penalty provision is not an offence 7
A contravention of a WHS civil penalty provision is not an 8
offence. 9
258 Civil proceeding rules and procedure to apply 10
The court must apply the rules of evidence and procedure for 11
civil proceedings when hearing proceedings for a 12
contravention of a WHS civil penalty provision. 13
259 Proceeding for a contravention of a WHS civil penalty 14
provision 15
(1) In a proceeding for a contravention of a WHS civil penalty 16
provision, if the court is satisfied that a person has 17
contravened a WHS civil penalty provision, the court may-- 18
(a) order the person to pay a monetary penalty that the court 19
considers appropriate; and 20
(b) make any other order that the court considers 21
appropriate, including an injunction. 22
(2) A monetary penalty imposed under subsection (1) must not 23
exceed the relevant maximum amount of monetary penalty 24
provided under part 7 or a regulation in relation to a 25
contravention of that WHS civil penalty provision. 26
260 Proceeding may be taken by the regulator or an inspector 27
Proceedings for a contravention of a WHS civil penalty 28
provision may only be taken by-- 29
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[s 261]
(a) the regulator; or 1
(b) an inspector with the written authorisation of the 2
regulator (either generally or in a particular case). 3
261 Limitation period for WHS civil penalty proceedings 4
Proceedings for a contravention of a WHS civil penalty 5
provision may be taken within 2 years after the contravention 6
first comes to the notice of the regulator. 7
262 Recovery of a monetary penalty 8
If the court orders a person to pay a monetary penalty-- 9
(a) the penalty is payable to the State; and 10
(b) the State may enforce the order as if it were a judgment 11
of the court. 12
263 Civil double jeopardy 13
The court must not make an order against a person under 14
section 259 for contravention of a WHS civil penalty 15
provision if an order has been made against the person under a 16
civil penalty provision under an Act of the Commonwealth or 17
a State in relation to conduct that is substantially the same as 18
the conduct constituting the contravention. 19
264 Criminal proceedings during civil proceedings 20
(1) Proceedings against a person for a contravention of a WHS 21
civil penalty provision are stayed if-- 22
(a) criminal proceedings are commenced or have already 23
commenced against the person for an offence; and 24
(b) the offence is constituted by conduct that is substantially 25
the same as the conduct alleged to constitute the 26
contravention of the WHS civil penalty provision. 27
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[s 265]
(2) The proceedings for the order may be resumed if the person is 1
not convicted or found guilty of the offence. 2
(3) Otherwise, the proceedings for the order are dismissed. 3
265 Criminal proceedings after civil proceedings 4
Criminal proceedings may be commenced against a person for 5
conduct that is substantially the same as conduct constituting 6
a contravention of a WHS civil penalty provision regardless of 7
whether an order has been made against the person under 8
section 259. 9
266 Evidence given in proceedings for contravention of WHS 10
civil penalty provision not admissible in criminal 11
proceedings 12
(1) Evidence of information given, or evidence of production of 13
documents, by an individual is not admissible in criminal 14
proceedings against the individual if-- 15
(a) the individual previously gave the information or 16
produced the documents in proceedings against the 17
individual for a contravention of a WHS civil penalty 18
provision (whether or not the order was made); and 19
(b) the conduct alleged to constitute the offence is 20
substantially the same as the conduct alleged to 21
constitute the contravention of the WHS civil penalty 22
provision. 23
(2) However, this does not apply to criminal proceedings in 24
relation to the falsity of the evidence given by the individual 25
in the proceedings for the contravention of the WHS civil 26
penalty provision. 27
Page 177
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Part 14 General
[s 267]
Division 8 Civil liability not affected by this Act 1
267 Civil liability not affected by this Act 2
Except as provided in part 6 and part 7 and division 7, nothing 3
in this Act is to be construed as-- 4
(a) conferring a right of action in civil proceedings in 5
relation to a contravention of a provision of this Act; or 6
(b) conferring a defence to an action in civil proceedings or 7
otherwise affecting a right of action in civil proceedings; 8
or 9
(c) affecting the extent (if any) to which a right of action 10
arises, or civil proceedings may be taken, in relation to 11
breaches of duties or obligations imposed under a 12
regulation. 13
Part 14 General 14
Division 1 General provisions 15
268 Offence to give false or misleading information 16
(1) A person must not give information in complying or 17
purportedly complying with this Act that the person knows-- 18
(a) to be false or misleading in a material particular; or 19
(b) omits any matter or thing without which the information 20
is misleading. 21
Maximum penalty--100 penalty units. 22
(2) A person must not produce a document in complying or 23
purportedly complying with this Act that the person knows to 24
be false or misleading in a material particular without-- 25
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Part 14 General
[s 269]
(a) indicating how it is false or misleading and, if 1
practicable, providing correct information; or 2
(b) accompanying the document with a written statement 3
signed by the person or, in the case of a body corporate, 4
by a competent officer of the body corporate-- 5
(i) stating that the document is, to the knowledge of 6
the first-mentioned person, false or misleading in a 7
material particular; and 8
(ii) setting out, or referring to, the material particular 9
in which the document is, to the knowledge of the 10
first-mentioned person, false or misleading. 11
Maximum penalty--100 penalty units. 12
(3) Subsection (2) places an evidential burden on the defendant to 13
show that the accused had indicated the extent to which the 14
document was false or misleading or that the accompanying 15
document sufficiently explained the extent to which the 16
document was false or misleading. 17
269 Act does not affect legal professional privilege 18
Nothing in this Act requires a person to produce a document 19
that would disclose information, or otherwise provide 20
information, that is the subject of legal professional privilege. 21
270 Immunity from liability 22
(1) An inspector, or other person engaged in the administration of 23
this Act, incurs no civil liability for an act or omission done or 24
omitted to be done in good faith and in the execution or 25
purported execution of powers and functions under this Act. 26
(2) A civil liability that would, but for subsection (1), attach to a 27
person, attaches instead to the State. 28
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[s 271]
271 Confidentiality of information 1
(1) This section applies if a person obtains information or gains 2
access to a document in exercising any power or function 3
under this Act, other than under part 7. 4
(2) The person must not do any of the following-- 5
(a) disclose to anyone else-- 6
(i) the information; or 7
(ii) the contents of or information contained in the 8
document; 9
(b) give access to the document to anyone else; 10
(c) use the information or document for any purpose. 11
Maximum penalty--100 penalty units. 12
(3) Subsection (2) does not apply to the disclosure of information, 13
or the giving of access to a document or the use of information 14
or a document-- 15
(a) about a person, with the person's consent; or 16
(b) that is necessary for the exercise of a power or function 17
under this Act; or 18
(c) that is made or given by the regulator or a person 19
authorised by the regulator if the regulator reasonably 20
believes the disclosure, access or use-- 21
(i) is necessary for administering, or monitoring or 22
enforcing compliance with, this Act; or 23
(ii) is necessary for the administration or enforcement 24
of another Act prescribed under a regulation; or 25
(iii) is necessary for the administration or enforcement 26
of another Act or law, if the disclosure, access or 27
use is necessary to lessen or prevent a serious risk 28
to public health or safety; or 29
(iv) is necessary for the recognition of authorisations 30
under a corresponding WHS law; or 31
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[s 272]
(v) is required for the exercise of a power or function 1
under a corresponding WHS law; or 2
(d) that is required by any court, tribunal, authority or 3
person having lawful authority to require the production 4
of documents or the answering of questions; or 5
(e) that is required or authorised under a law; or 6
(f) to a Minister. 7
(4) A person must not intentionally disclose to another person the 8
name of an individual who has made a complaint in relation to 9
that other person unless-- 10
(a) the disclosure is made with the consent of the 11
complainant; or 12
(b) the disclosure is required under a law. 13
Maximum penalty--100 penalty units. 14
272 No contracting out 15
A term of any agreement or contract that purports to exclude, 16
limit or modify the operation of this Act or any duty owed 17
under this Act or to transfer to another person any duty owed 18
under this Act is void. 19
273 Person not to levy workers 20
A person conducting a business or undertaking must not 21
impose a levy or charge on a worker, or permit a levy or 22
charge to be imposed on a worker, for anything done, or 23
provided, in relation to work health and safety. 24
Maximum penalty--50 penalty units. 25
Page 181
Work Health and Safety Bill 2011
Part 14 General
[s 274]
Division 2 Codes of practice 1
274 Approved codes of practice 2
(1) The Minister may approve a code of practice for the purposes 3
of this Act and may vary or revoke an approved code of 4
practice. 5
(2) The Minister may only approve, vary or revoke a code of 6
practice under subsection (1) if the code of practice, variation 7
or revocation was developed by a process that involved 8
consultation between-- 9
(a) the Governments of the Commonwealth and each State 10
and Territory; and 11
(b) unions; and 12
(c) employer organisations. 13
(3) A code of practice may apply, adopt or incorporate any matter 14
contained in a document formulated, issued or published by a 15
person or body whether-- 16
(a) with or without modification; or 17
(b) as in force at a particular time or from time to time. 18
(4) An approval of a code of practice, or an instrument varying or 19
revoking an approved code of practice, has no effect unless 20
the Minister gives notice of its making. 21
(4A) A notice under subsection (4) is subordinate legislation. 22
(4B) A code of practice, or an instrument varying or revoking a 23
code of practice, commences on the later of the following-- 24
(a) the day the notice under subsection (4) commences; or 25
(b) the day the code or instrument provides that it 26
commences. 27
(5) As soon as practicable after approving a code of practice, or 28
varying or revoking an approved code of practice, the Minister 29
must ensure that notice of the approval, variation or 30
Page 182
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Part 14 General
[s 275]
revocation is published in a newspaper circulating generally 1
throughout the State. 2
(6) The regulator must ensure that a copy of-- 3
(a) each code of practice that is currently approved; and 4
(b) each document applied, adopted or incorporated, to any 5
extent, by an approved code of practice; 6
is available for inspection by members of the public without 7
charge at the office of the regulator during normal business 8
hours. 9
275 Use of codes of practice in proceedings 10
(1) This section applies in a proceeding for an offence against this 11
Act. 12
(2) An approved code of practice is admissible in the proceeding 13
as evidence of whether or not a duty or obligation under this 14
Act has been complied with. 15
(3) The court may-- 16
(a) have regard to the code as evidence of what is known 17
about a hazard or risk, risk assessment or risk control to 18
which the code relates; and 19
(b) rely on the code in determining what is reasonably 20
practicable in the circumstances to which the code 21
relates. 22
Note-- 23
See section 18 for the meaning of reasonably practicable. 24
(4) Nothing in this section prevents a person from introducing 25
evidence of compliance with this Act in a way that is different 26
from the code but provides a standard of work health and 27
safety that is equivalent to or higher than the standard required 28
in the code. 29
Page 183
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Part 14 General
[s 276]
Division 3 Regulation-making power 1
276 Regulation-making power 2
(1) The Governor in Council may make regulations under this 3
Act. 4
(2) Without limiting subsection (1), a regulation may make 5
provision for any matter stated in schedule 3 or otherwise 6
related to work health and safety. 7
(3) A regulation may-- 8
(a) allow the regulator to provide exemptions from 9
complying with any of the regulations on the terms and 10
conditions (if any) prescribed or, if the regulations 11
allow, on the terms and conditions (if any) determined 12
by the regulator; or 13
(b) prescribe fees for doing any act or providing any service 14
for the purposes of this Act; or 15
(c) prescribe a penalty for any contravention of the 16
regulations not exceeding 300 penalty units. 17
(4) Subsection (1) applies as provided under, and subsections (2) 18
and (3) do not limit, the Statutory Instruments Act 1992. 19
(5) For the Statutory Instruments Act 1992, to remove doubt it is 20
declared that-- 21
(a) a reference in section 24 and 25 of that Act to exceptions 22
includes exemptions, and exceptions and exemptions 23
given on terms or conditions (if any) prescribed; and 24
(b) a reference in 30B(1)(b) of that Act to waiving payment 25
of a fee includes reducing or refunding the fee. 26
Page 184
Work Health and Safety Bill 2011
Part 15 Repeals
[s 277]
Part 15 Repeals 1
277 Repeal of Workplace Health and Safety Act 1995 2
The Workplace Health and Safety Act 1995, No. 25 is 3
repealed. 4
278 Repeal of Dangerous Goods Safety Management Act 5
2001 6
The Dangerous Goods Safety Management Act 2001, No. 28 7
is repealed. 8
Part 16 Transitional provisions 9
Division 1 Provisions for the repeal of the 10
Workplace Health and Safety Act 11
1995 12
Subdivision 1 Preliminary 13
279 Definitions for div 1 14
In this division-- 15
repeal means the repeal of the repealed Act. 16
repealed Act means the repealed Workplace Health and Safety 17
Act 1995. 18
Page 185
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Part 16 Transitional provisions
[s 280]
Subdivision 2 Proceedings 1
280 Application of this Act and repealed Act in relation to 2
particular provisions 3
(1) This section applies to an obligation imposed by any of the 4
following provisions of the repealed Act-- 5
(a) section 28; 6
(b) section 30; 7
(c) section 30C; 8
(d) section 31; 9
(e) section 34C; 10
(f) section 34D; 11
(g) section 35; 12
(h) section 36. 13
(2) To the extent the obligation was contravened before the 14
repeal, proceedings may be taken or continued against the 15
person who contravened the obligation, and the person may be 16
punished, as if the repeal had not happened. 17
(3) If-- 18
(a) the acts or omissions constituting the contravention 19
continue after the repeal; and 20
(b) the continuing acts or omissions contravene a duty 21
imposed by a provision of this Act; 22
proceedings may be taken against the person under the 23
provision of this Act to the extent of the continuation of the 24
acts or omissions after the repeal. 25
281 Application of this Act and repealed Act in relation to 26
other particular provisions 27
(1) This section applies to an obligation imposed by any of the 28
following provisions of the repealed Act-- 29
Page 186
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 281]
(a) section 30A; 1
(b) section 30B; 2
(c) section 32; 3
(d) section 32A; 4
(e) section 32B; 5
(f) section 33; 6
(g) section 34; 7
(h) section 34A. 8
(2) If a contravention of the obligation happens before the repeal, 9
proceedings may be taken or continued against the person 10
who contravened the obligation, and the person may be 11
punished, as if the repeal had not happened. 12
(3) If-- 13
(a) a particular activity of a person would be a 14
contravention of the obligation if all the acts or 15
omissions involved happened before the repeal; but 16
(b) some of the acts or omissions happen before, and some 17
after, the repeal; 18
the proceedings may be taken against the person for the 19
activity as a contravention of the obligation as if the repeal 20
had not happened. 21
(4) However, subsection (3) only applies if proceedings against 22
the person for the activity are commenced-- 23
(a) for an activity to which the provisions mentioned in 24
subsection (1)(b), (c) or (f) relate--within 2 years after 25
the repeal; or 26
(b) otherwise--within 1 year after the repeal. 27
(5) Also, the person can not be convicted of the contravention 28
under subsection (3) unless the acts or omissions would also 29
be a contravention of a corresponding duty under this Act if 30
they all happened after the repeal. 31
Page 187
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Part 16 Transitional provisions
[s 282]
(6) Subsections (3) and (4) do not prevent proceedings being 1
commenced against the person under this Act solely for any 2
acts of omissions involved in the activity that happen after the 3
repeal. 4
282 Investigations and proceedings generally 5
(1) This section does not limit sections 280 and 281. 6
(2) This section applies to an offence committed by a person 7
against the repealed Act, for which investigations or 8
proceedings had not been conducted, taken or completed 9
before the repeal. 10
(3) The investigation or proceedings may be conducted, taken or 11
continued against the person, and the person may be punished, 12
as if the repeal had not happened. 13
(4) For subsection (3) and for any other provision of this division 14
that authorises the taking or continuation of proceedings 15
under the repealed Act as if it had not been repealed-- 16
(a) a reference in the repealed Act, section 161(1), to the 17
chief executive is taken to include a reference to the 18
regulator; and 19
(b) a reference in the repealed Act, section 164(5), to the 20
chief executive is taken to be a reference to the 21
regulator, if proceedings are started after the repeal. 22
Subdivision 3 Status of persons, bodies, 23
processes and other matters 24
283 Principal contractor 25
(1) This section applies if, immediately before the repeal of the 26
repealed Act, a person is the principal contractor for 27
construction work because of an appointment under the 28
repealed Act, section 184A. 29
Page 188
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 284]
(2) The person is taken to continue to be the principal contractor 1
for the construction work for a provision under a regulation 2
that mentions a principal contractor (a principal contractor 3
regulation). 4
(3) Subsection (2) does not apply if-- 5
(a) a regulation in effect defines or limits who is a principal 6
contractor for the principal contractor regulation; and 7
(b) the person is not a principal contractor as so defined or 8
limited. 9
284 Code of practice preserved 10
(1) This section applies to a code of practice made by the Minister 11
under the repealed Act, section 41, and in existence 12
immediately before the repeal (an old code). 13
(2) The old code is taken to be made under section 274 of this Act 14
(a preserved code). 15
(3) A preserved code-- 16
(a) is taken to be effective without compliance with section 17
274(2) or (5) of this Act; and 18
(b) may be varied or revoked under this Act without 19
compliance with section 274(2) of this Act. 20
285 Enforceable undertaking 21
(1) Subsection (2) applies to a workplace health and safety 22
undertaking-- 23
(a) made under the part 5 of the repealed Act; and 24
(b) in force immediately before the repeal of the part. 25
(2) Part 5 of the repealed Act and any other provision of the 26
repealed Act relevant to the operation of part 5 continue to 27
apply in relation to the undertaking as if they had not been 28
repealed. 29
Page 189
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 285]
(3) However, for subsection (2), sections 42F, 42H and 42I of the 1
repealed Act, as they existed before the repeal of part 5 of the 2
repealed Act, apply as if a reference to the chief executive 3
were a reference to the regulator. 4
(4) Also, the undertaking continues in force with necessary 5
changes, in relation to an act or omission of the identified 6
person happening after the repeal of part 5 of the repealed 7
Act, as if it were an undertaking accepted by the regulator 8
under section 216(1) of this Act to the extent to which the 9
future behaviour assurance is material to compliance with this 10
Act. 11
(5) Subsection (4) does not apply to an act or omission that 12
constitutes a category 1 offence. 13
(6) Subsections (7) and (8) apply if, immediately before the 14
repeal of the repealed Act, the chief executive-- 15
(a) has received an undertaking under section 42DA of the 16
repealed Act; but 17
(b) has not made a decision whether to accept the 18
undertaking under section 42E of the repealed Act. 19
(7) The chief executive must decide whether or not to accept the 20
undertaking. 21
(8) If the chief executive accepts the undertaking, subsections (2) 22
to (5) and (9) and (12) apply to the undertaking. 23
(9) For subsection (4), a reference-- 24
(a) in the undertaking to the alleged contravention; or 25
(b) in the future behaviour assurance to a contravention of 26
the repealed Act; 27
is taken to include a reference to a contravention of this Act 28
that corresponds to those contraventions. 29
Note-- 30
Paragraph (a) is relevant to the continued operation of section 42F of the 31
repealed Act as it existed before the repeal. Paragraph (b) is relevant if 32
future behaviour is expressed in terms of contraventions of particular 33
sections of the repealed Act. 34
Page 190
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 286]
(10) Despite subsections (1) to (9), the regulator may accept a 1
WHS undertaking under part 11 of this Act for a 2
contravention of the repealed Act. 3
(11) For subsection (10), a reference in part 11 to this Act is taken 4
to include a reference to the repealed Act. 5
(12) In this section-- 6
future behaviour assurance is the assurance about future 7
behaviour from the identified person included in the 8
workplace health and safety undertaking. 9
identified person means the identified person for the 10
undertaking. 11
286 Appointment to particular board and committee 12
preserved 13
(1) An appointment made under any of the following provisions 14
of the repealed Act and in force immediately before the repeal 15
continues in force from the repeal as if the appointment had 16
been made under the corresponding provision of this Act-- 17
(a) section 46; 18
(b) section 57. 19
(2) For the purpose of calculating the duration of the 20
appointment, it is taken to have been made when it was made 21
under the repealed Act. 22
(3) In this section-- 23
corresponding provision, of this Act, means-- 24
(a) for an appointment made under the repealed Act, section 25
46--schedule 2, section 6 of this Act; or 26
(b) for an appointment made under the repealed Act, section 27
57--schedule 2, section 16 of this Act. 28
Page 191
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 287]
287 Election of workplace health and safety representative 1
preserved 2
(1) A workplace health and safety representative elected under 3
the repealed Act, part 7, division 3, and holding office 4
immediately before the repeal is taken from the repeal to have 5
been elected as a health and safety representative, and to hold 6
office for 3 years, under part 5, division 3, subdivision 4 of 7
this Act. 8
(2) For the purpose of calculating the representative's duration of 9
office, the representative is taken to have been elected for a 10
period of 3 years from the election under the repealed Act. 11
(3) Subsections (4) and (5) apply if, before the repeal, an 12
employer has complied with the repealed Act, section 73(2) 13
for the election of a workplace health and safety 14
representative but the election has not been conducted before 15
the repeal. 16
(4) The election may be continued to be conducted under the 17
repealed Act despite the repeal but within 3 months after the 18
repeal. 19
(5) The person elected under subsection (3) is taken to be elected 20
as a health and safety representative, and to hold office for 3 21
years, under part 5, division 3, subdivision 4 of this Act. 22
(6) The work group of the health and safety representative 23
mentioned in subsection (1) or (5) is taken to be-- 24
(a) the representative's workplace; or 25
(b) if there is more than 1 representative for the workplace 26
under the repealed Act--the part of the workplace 27
within the representative's area of representation. 28
288 Training requirements for workplace health and safety 29
representative 30
(1) This section applies to a health and safety representative 31
mentioned in section 287(1) and (5). 32
Page 192
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 289]
(2) Sections 85(6) and, subject to section 290(3), 90(4) of this Act 1
do not apply to the representative for a period of 1 year from 2
the commencement of this section. 3
(3) If the representative, immediately before the repeal of the 4
repealed Act, was a qualified workplace health and safety 5
representative under section 81A of the repealed Act, the 6
representative is taken to have satisfied the requirements of 7
section 90(4)(a) of this Act. 8
289 Provisional improvement notices preserved 9
(1) Subsection (2) applies to the following in force immediately 10
before the repeal of the repealed Act-- 11
(a) a provisional improvement notice given under the 12
repealed Act, section 81B for a contravention or likely 13
contravention of the repealed Act (the old 14
contravention); or 15
(b) a provisional improvement notice mentioned in 16
paragraph (a) affirmed (with or without changes) by an 17
inspector under the repealed Act, section 81I. 18
(2) The provisional improvement notice continues to be 19
enforceable against the person to whom it was given for a 20
contravention of the repealed Act, section 81F, 81G or 81I(4) 21
that happened before the repeal as if the repealed Act had not 22
been repealed. 23
(3) Also, the provisional improvement notice continues in force 24
and may be enforced as if it were a provisional improvement 25
notice given to the person under section 90 of this Act for a 26
contravention of a provision of this Act that corresponds to the 27
old contravention. 28
290 Suspension or cancellation relating to workplace health 29
and safety representative preserved 30
(1) This section applies if-- 31
(a) the entitlement of a workplace health and safety 32
representative to give a provisional improvement notice 33
Page 193
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 291]
under the repealed Act has been suspended or cancelled 1
under section 81P of that Act; and 2
(b) the suspension or cancellation is in effect immediately 3
before the repeal. 4
(2) The representative is taken not to satisfy section 90(4)(a) of 5
this Act-- 6
(a) for a suspension--until the day the suspension would 7
have ended if section 81P of the repealed Act had not 8
been repealed; or 9
(b) for a cancellation--indefinitely. 10
(3) Section 288(2) does not apply to the representative for the 11
period that subsection (2) applies to the representative. 12
291 Workplace health and safety committee preserved 13
(1) This section applies to a workplace health and safety 14
committee established for a workplace under the repealed Act, 15
section 86 and in existence immediately before the repeal of 16
the repealed Act. 17
(2) From the repeal, the committee continues as the health and 18
safety committee for the workplace taken to be established 19
under part 5, division 4 of this Act. 20
(3) However, if the constitution of the committee is inconsistent 21
with the requirements for a health and safety committee under 22
section 76 of this Act, the constitution must be adjusted to 23
comply with section 76 within 1 year after the repeal (the 24
transitional period). 25
(4) After the transitional period, if subsection (3) has not been 26
complied with, the person conducting the business 27
undertaking or the workers who must agree to the constitution 28
of the committee under section 76(1) of this Act may ask the 29
regulator to appoint an inspector to decide the matter. 30
(5) The inspector must decide the appropriate constitution of the 31
committee. 32
Page 194
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 292]
292 Appointment of authorised representative preserved 1
(1) A person appointed as an authorised representative under the 2
repealed Act, section 90D, and holding office immediately 3
before the repeal of that section, from the repeal is taken to be 4
issued with a WHS entry permit under section 134. 5
(2) The person's WHS entry permit is taken to be the identity card 6
issued to the person under the repealed Act, section 90H. 7
(3) For deciding the term of the permit, and despite section 136, 8
the permit is taken to have been issued-- 9
(a) when the person was appointed as an authorised 10
representative under the repealed Act; and 11
(b) for the period until the expiry date stated on the identity 12
card. 13
(4) The permit is taken to be issued to the person on the 14
conditions of the appointment mentioned in the repealed Act, 15
section 90F, which may be varied under section 135. 16
(5) If the industrial registrar issues the person with a WHS permit 17
under section 134, subsections (1) to (3) stop applying to the 18
person. 19
(6) An application under the repealed Act, section 90C that has 20
not been decided at the repeal, from the repeal is taken to be 21
an application under section 131 and must be decided by the 22
industrial registrar. 23
293 Appointment of inspector 24
(1) This section applies to a person who, immediately before the 25
repeal of the repealed Act was an inspector appointed under 26
the repealed Act, section 99. 27
(2) The person is taken to be appointed by the regulator as an 28
inspector under section 156. 29
(3) The inspector's compliance powers continue to be subject to 30
the conditions imposed under the repealed Act, section 100, 31
which are taken to be imposed under section 161. 32
Page 195
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 294]
(4) The inspector continues to be subject to directions given 1
under the repealed Act, section 100(1), which are taken to be 2
given, and may be withdrawn, under section 162. 3
294 Warrants and actions by inspectors preserved 4
(1) A warrant issued under the repealed Act, part 9, division 2, 5
and in force immediately before the repeal, continues to have 6
effect for the purposes of an investigation to which section 7
282 applies. 8
(2) A power exercised by an inspector before the repeal-- 9
(a) if the context permits, continues to have effect for the 10
purposes of this Act; and 11
(b) if the context permits, is taken to have been exercised 12
under a corresponding provision of this Act. 13
(3) However, subsection (2) does not apply to an exercise of an 14
inspector's power to which sections 289, 295 or 296 applies. 15
(4) In this section-- 16
corresponding provision means a provision of this Act that 17
corresponds to a provision of the repealed Act under which 18
the power mentioned in subsection (2) was exercised. 19
295 Improvement notice preserved 20
(1) This section applies to an improvement notice-- 21
(a) given by an inspector under the repealed Act, section 22
117 for a contravention or likely contravention of the 23
repealed Act (the notified contravention); and 24
(b) in force immediately before the repeal. 25
(2) The notice continues to be enforceable against the person to 26
whom it was given for an offence against the repealed Act, 27
section 117(4) that happened before the repeal as if the 28
repealed Act had not been repealed. 29
(3) Also, the notice continues in force and may be enforced as if it 30
were an improvement notice given to the person under the 31
Page 196
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 296]
repealed Act, section 117 for a contravention or likely 1
contravention of this Act that corresponds to the notified 2
contravention. 3
296 Prohibition notice preserved 4
(1) This section applies to a direction or prohibition notice given 5
by an inspector under the repealed Act, section 118 and in 6
force immediately before the repeal. 7
(2) The direction or prohibition notice continues in force, and 8
may be enforced under the repealed Act, section 118(4), as if 9
the repealed Act had not been repealed. 10
297 Appeals 11
(1) The repealed Act, part 11 continues to apply to a decision 12
made under the repealed Act as if the repealed Act had not 13
been repealed. 14
(2) Another provision of this subdivision that would have applied 15
to a matter if the final decision on a review or appeal under the 16
repealed Act, part 11 had been made before the repeal of the 17
repealed Act applies to matter as if the final decision had been 18
made before the repeal. 19
Division 2 Provisions for repeal of Dangerous 20
Goods Safety Management Act 2001 21
298 Definitions for pt 15, div 2 22
repeal means the repeal of the repealed Act. 23
repealed Act means the repealed Dangerous Goods Safety 24
Management Act 2001. 25
Page 197
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 299]
299 Application of this Act and repealed Act in relation to 1
particular provisions 2
(1) This section applies to an obligation imposed by any of the 3
following provisions of the repealed Act-- 4
(a) section 16; 5
(b) section 23; 6
(c) section 24. 7
(2) To the extent the obligation was contravened before the 8
repeal, proceedings may be taken, or continue to be taken, 9
against the person who contravened the obligation, and the 10
person may be punished, as if the repeal had not happened. 11
(3) If-- 12
(a) the acts or omissions constituting the contravention 13
continue after the repeal; and 14
(b) the continuing acts or omissions contravene a duty 15
imposed by a provision of this Act; 16
proceedings may be taken against the person under the 17
provision of this Act to the extent of the continuation of the 18
acts or omissions after the repeal. 19
300 Application of this Act and repealed Act in relation to 20
other particular provisions 21
(1) This section applies to an obligation imposed by any of the 22
following provisions of the repealed Act-- 23
(a) section 25; 24
(b) section 26; 25
(c) section 27. 26
(2) If a contravention of the obligation happens before the repeal, 27
proceedings may be taken or continued against the person 28
who contravened the obligation, and the person may be 29
punished, as if the repeal had not happened. 30
(3) If-- 31
Page 198
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 301]
(a) a particular activity of a person would be a 1
contravention of the obligation if all the acts or 2
omissions involved happened before the repeal; but 3
(b) some of the acts or omissions happen before, and some 4
after, the repeal; 5
the proceedings may be taken against the person for the 6
activity as a contravention of the obligation as if the repeal 7
had not happened. 8
(4) However, subsection (3) only applies if proceedings against 9
the person for the activity are commenced-- 10
(a) for an activity to which section 26 and 27 of the repealed 11
Act applies in relation to designers and 12
installers--within 2 years after the repeal; 13
(b) for an activity to which section 26(2) of the repealed Act 14
applies--within 2 years after the repeal; 15
(c) otherwise--within 1 year after the repeal. 16
(5) Also, the person can not be convicted of the contravention 17
under subsection (3) unless the acts or omissions would also 18
be a contravention of a corresponding duty under this Act if 19
they all happened after the repeal. 20
(6) Subsections (3) and (4) do not prevent proceedings being 21
commenced against the person under this Act solely for any 22
acts of omissions involved in the activity that happen after the 23
repeal. 24
301 Investigations and proceedings generally 25
(1) This section does not limit sections 299 and 300. 26
(2) This section applies to an offence by a person against the 27
repealed Act for which investigations or proceedings had not 28
been conducted, taken or completed before the repeal. 29
(3) The investigations and proceedings may be conducted, taken 30
or continued against the person, and the person may be 31
punished, as if the repeal had not happened. 32
Page 199
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 302]
(4) The repealed Act, section 175 continues to apply after the 1
repeal in relation to an offence committed before the repeal. 2
302 Directive by authorised officer preserved 3
(1) Subsection (2) applies to a directive (an old directive) given 4
by an authorised officer under the repealed Act, part 6, 5
division 3 before its repeal. 6
(2) The repealed Act, part 6, division 3 and any other provision of 7
the repealed Act relevant to the operation of the division (the 8
preserved provisions) continue to apply in relation to the old 9
directive despite the repeal. 10
(3) Also, a further directive may be given under the preserved 11
provisions (a consequential directive) in relation to the same 12
matter as, or a matter connected to, the matter for which the 13
old directive was given. 14
Example-- 15
Before the repeal, an authorised officer gives a directive under the 16
repealed Act, section 90. As a result of the response to the directive, or a 17
lack of response to the directive, an inspector appointed under this Act 18
gives a directive under section 91 of the preserved provisions. 19
(4) Under subsections (2) and (3), for any action that may be 20
taken after the repeal, a reference in the division to an 21
authorised officer is taken to be a reference to an inspector 22
appointed under this Act. 23
(5) Under subsections (2) and (3), for the purpose of-- 24
(a) an application for a review under the repealed Act, 25
section 102 made after the repeal; or 26
(b) an action taken by the administering executive after the 27
repeal on an application for review made before the 28
repeal; 29
a reference in the division to the chief executive as the 30
administering executive is taken to be a reference to the 31
regulator. 32
Page 200
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 303]
Note-- 1
Subsection (3) also necessarily affects later references to the 2
administering executive in the repealed Act, part 9, division 2, as 3
preserved under section 305. 4
303 Warrants and actions by authorised officer preserved 5
(1) A warrant issued under the repealed Act, part 6 before the 6
repeal continues to have effect for the purposes of an 7
investigation to which section 301 applies. 8
(2) A power exercised by an authorised officer before the 9
repeal-- 10
(a) if the context permits, continues to have effect for the 11
purposes of this Act; and 12
(b) if the context permits, is taken to have been exercised 13
under a corresponding provision of this Act by an 14
inspector appointed under this Act. 15
(3) However, subsection (2) does not apply to an exercise of an 16
authorised person's power to which section 302 applies. 17
(4) In this section-- 18
corresponding provision means a provision of this Act that 19
corresponds to a provision under which the power mentioned 20
in subsection (2) was exercised. 21
304 Cost recovery notice 22
(1) Despite the repeal of the repealed Act, a claimant under the 23
repealed Act, section 107A may issue a cost recovery notice 24
under the section in relation to costs incurred under the 25
repealed Act, section 107 before the repeal. 26
(2) Despite the repeal, sections 107A and 107B of the repealed 27
Act continue to apply as if they had not been repealed to-- 28
(a) a cost recovery notice issued before the repeal or under 29
subsection (1); and 30
(b) to any amount for which the notice was issued. 31
Page 201
Work Health and Safety Bill 2011
Part 16 Transitional provisions
[s 305]
305 Appeals 1
(1) The repealed Act, part 9 continues to apply to a decision made 2
under the repealed Act as if the repealed Act had not been 3
repealed. 4
(2) For the repealed Act, section 154F, applied under subsection 5
(1), a reference to the chief executive of the department is 6
taken to be a reference to the regulator. 7
306 Regulation-making power for major hazard facility 8
A regulation may make provision for declaring whether or 9
how any matter defined, decided, notified, done or otherwise 10
arising under the repealed Act, part 4 or 5, is to have 11
continuing effect for the regulation, including a continuing 12
effect as modified for the purpose of the regulation. 13
Examples-- 14
1 A regulation may declare that a facility classified as a major hazard 15
facility by the chief executive under the repealed Act, part 4, is 16
taken. under the regulation, to be a facility registered or licensed as 17
a major hazard facility by the regulator. 18
2 A regulation may declare that a workplace defined as a large 19
dangerous goods location under the repealed Act, part 5, is taken, 20
under the regulation, to be a notified workplace with hazardous 21
materials above the manifest quantity. 22
Division 3 Other transitional provisions 23
307 Power to make subordinate legislation unaffected by 24
direct amendment by Act 25
The amendment by this Act of subordinate legislation made 26
under any Act does not affect the power of the maker of the 27
subordinate legislation to further amend the subordinate 28
legislation or repeal it. 29
Page 202
Work Health and Safety Bill 2011
Part 17 Amendment of asbestos definition
[s 308]
Part 17 Amendment of asbestos 1
definition 2
Division 1 Amendment of Coal Mining Safety 3
and Health Regulation 2001 4
308 Regulation amended 5
This division amends the Coal Mining Safety and Health 6
Regulation 2001. 7
309 Amendment of sch 9 (Dictionary) 8
Schedule 9, definition asbestos-- 9
omit, insert-- 10
`asbestos means the asbestiform varieties of mineral silicates 11
belonging to the serpentine or amphibole groups of 12
rock-forming minerals, including the following-- 13
(a) actinolite asbestos; 14
(b) grunerite (or amosite) (brown) asbestos; 15
(c) anthophyllite asbestos; 16
(d) chrysotile (white); 17
(e) crocidolite (blue); 18
(f) tremolite asbestos; 19
(g) a mixture containing 1 or more of the minerals 20
mentioned in paragraphs (a) to (f). 21
Note-- 22
Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the 23
same mineral term for both the asbestiform and nonasbestiform 24
varieties. The word `asbestos' has been included when listing these 25
minerals to emphasise that only the asbestiform habit of these minerals 26
is regulated as asbestos.'. 27
Page 203
Work Health and Safety Bill 2011
Part 17 Amendment of asbestos definition
[s 310]
Division 2 Amendment of Public Health 1
Regulation 2005 2
310 Regulation amended 3
This division amends the Public Health Regulation 2005. 4
311 Amendment of s 2B (Definitions for div 1) 5
Section 2B, definition asbestos-- 6
omit, insert-- 7
`asbestos means the asbestiform varieties of mineral silicates 8
belonging to the serpentine or amphibole groups of 9
rock-forming minerals, including the following-- 10
(a) actinolite asbestos; 11
(b) grunerite (or amosite) (brown) asbestos; 12
(c) anthophyllite asbestos; 13
(d) chrysotile (white); 14
(e) crocidolite (blue); 15
(f) tremolite asbestos; 16
(g) a mixture containing 1 or more of the minerals 17
mentioned in paragraphs (a) to (f). 18
Note-- 19
Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the 20
same mineral term for both the asbestiform and nonasbestiform 21
varieties. The word `asbestos' has been included when listing these 22
minerals to emphasise that only the asbestiform habit of these minerals 23
is regulated as asbestos.'. 24
Page 204
Work Health and Safety Bill 2011
Part 17 Amendment of asbestos definition
[s 312]
Division 3 Amendment of Mining and 1
Quarrying Safety and Health 2
Regulation 2001 3
312 Regulation amended 4
This division amends the Mining and Quarrying Safety and 5
Health Regulation 2001. 6
313 Amendment of sch 7 (Dictionary) 7
Schedule 7, definition asbestos-- 8
omit, insert-- 9
`asbestos means the asbestiform varieties of mineral silicates 10
belonging to the serpentine or amphibole groups of 11
rock-forming minerals, including the following-- 12
(a) actinolite asbestos; 13
(b) grunerite (or amosite) (brown) asbestos; 14
(c) anthophyllite asbestos; 15
(d) chrysotile (white); 16
(e) crocidolite (blue); 17
(f) tremolite asbestos; 18
(g) a mixture containing 1 or more of the minerals 19
mentioned in paragraphs (a) to (f). 20
Note-- 21
Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the 22
same mineral term for both the asbestiform and nonasbestiform 23
varieties. The word `asbestos' has been included when listing these 24
minerals to emphasise that only the asbestiform habit of these minerals 25
is regulated as asbestos.'. 26
Page 205
Work Health and Safety Bill 2011
Part 17 Amendment of asbestos definition
[s 314]
Division 4 Amendment of Workplace Health 1
and Safety Act 1995 2
314 Act amended 3
This division amends the Workplace Health and Safety Act 4
1995. 5
315 Amendment of sch 3 (Dictionary) 6
Schedule 3, definition asbestos-- 7
omit, insert-- 8
`asbestos means the asbestiform varieties of mineral silicates 9
belonging to the serpentine or amphibole groups of 10
rock-forming minerals, including the following-- 11
(a) actinolite asbestos; 12
(b) grunerite (or amosite) (brown) asbestos; 13
(c) anthophyllite asbestos; 14
(d) chrysotile (white); 15
(e) crocidolite (blue); 16
(f) tremolite asbestos; 17
(g) a mixture containing 1 or more of the minerals 18
mentioned in paragraphs (a) to (f). 19
Note-- 20
Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the 21
same mineral term for both the asbestiform and nonasbestiform 22
varieties. The word `asbestos' has been included when listing these 23
minerals to emphasise that only the asbestiform habit of these minerals 24
is regulated as asbestos.'. 25
Page 206
Work Health and Safety Bill 2011
Part 17 Amendment of asbestos definition
[s 316]
Division 5 Amendment of Workplace Health 1
and Safety Regulation 2008 2
316 Regulation amended 3
This division amends the Workplace Health and Safety 4
Regulation 2008. 5
317 Replacement of sch 9, s 1 (Amosite, crocidolite, 6
fibrous anthophyllite, tremolite or actinolite) 7
Schedule 9, section 1-- 8
omit, insert-- 9
`1 Grunerite (or amosite) (brown) asbestos, crocidolite, 10
anthophyllite asbestos, tremolite asbestos or actinolite 11
asbestos 12
`(1) Grunerite (or amosite) (brown) asbestos, crocidolite, 13
anthophyllite asbestos, tremolite asbestos and actinolite 14
asbestos are prohibited substances. 15
`(2) A thing containing grunerite (or amosite) (brown) asbestos, 16
crocidolite, anthophyllite asbestos, tremolite asbestos or 17
actinolite asbestos is a prohibited ACM. 18
`(3) The prohibited purpose for the prohibited substances or the 19
prohibited ACM is a purpose other than any of the 20
following-- 21
(a) analysis, research or sampling; 22
(b) maintenance; 23
(c) removal or disposal; 24
(d) encapsulation or enclosure.'. 25
Page 207
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 318]
Part 18 Amendment of other legislation 1
relating to safety 2
Division 1 Building and construction work levy 3
amendments 4
Subdivision 1 Building and Construction Industry 5
(Portable Long Service Leave) Act 6
1991 7
318 Act amended 8
This subdivision amends the Building and Construction 9
Industry (Portable Long Service Industry) Act 1991. 10
319 Amendment of s 3A (Who is an eligible worker) 11
Section 3A(2)(b)-- 12
omit, insert-- 13
`(b) an individual who is appointed as a safety officer by the 14
person conducting a business to advise the person in relation 15
to work health and safety duties under the Work Health and 16
Safety Act 2011, in relation to building and construction work, 17
whether or not the individual performs or usually performs 18
building and construction work.'. 19
320 Amendment of s 32 (Funds of authority) 20
Section 32-- 21
insert-- 22
`(4) Work health and safety levy paid to the authority must be paid 23
by the authority to the relevant department for the 24
consolidated fund. 25
`(5) In this section-- 26
Page 208
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 321]
relevant department means the department in which the Work 1
Health and Safety Act 2011 is administered.'. 2
321 Amendment of s 66 (Imposition of levies) 3
Section 66-- 4
insert-- 5
`(c) work health and safety levy.'. 6
322 Amendment of s 72 (Rate of levy) 7
Section 72(1)-- 8
insert-- 9
`(c) work health and safety levy.'. 10
323 Amendment of sch (Dictionary) 11
(1) Schedule, definition levy-- 12
insert-- 13
`(c) work health and safety levy.'. 14
(2) Schedule -- 15
insert-- 16
`work health and safety levy means levy that is imposed 17
under part 8, and includes-- 18
(a) an additional amount of levy imposed under section 80; 19
and 20
(b) any interest under section 84.'. 21
324 Insertion of new pt 11, div 7 22
Part 11-- 23
insert-- 24
Page 209
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 325]
`Division 7 Transitional provisions for Work 1
Health and Safety Act 2011 2
`124 Liability to pay fee under regulation preserved 3
(1) This section applies to a fee payable under the Workplace 4
Health and Safety Regulation 2008, part 9 that is unpaid 5
immediately before the repeal of part 9 of the regulation under 6
the Work Health and Safety Act 2011, section 329. 7
(2) Despite the repeal, part 9 continues to apply for the purpose of 8
the enforcement of the liability to pay the fee and for recovery 9
of the fee.'. 10
Subdivision 2 Building and Construction Industry 11
(Portable Long Service Leave) 12
Regulation 2002 13
325 Regulation amended 14
This subdivision amends the Building and Construction 15
Industry (Portable Long Service Leave) Regulation 2002. 16
326 Amendment of s 6 (Building and construction work for 17
which no levy is payable--Act, s 70(2)) 18
(1) Section 6(4)-- 19
renumber as section 6(5). 20
(2) Section 6-- 21
insert-- 22
`(4) Also, levy is not payable under section 66(c) of the Act for 23
building and construction work at-- 24
(a) a coal mine to which the Coal Mining Safety and Health 25
Act 1999 applies; or 26
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[s 327]
(b) a mine to which the Mining and Quarrying Safety and 1
Health Act 1999 applies; or 2
(c) operating plant, within the meaning of the Petroleum 3
and Gas (Production and Safety) Act 2004, on land the 4
subject of-- 5
(i) a 1923 Act petroleum tenure under the Petroleum 6
Act 1923; or 7
(ii) a petroleum authority under the Petroleum and Gas 8
(Production and Safety) Act 2004; or 9
(iii) a GHG authority under the Greenhouse Gas 10
Storage Act 2009; or 11
(d) a facility or plant used for geothermal exploration, 12
within the meaning of the Geothermal Exploration Act 13
2004, section 132A(1), if the facility or plant is used for 14
drilling or drilling related purposes. 15
327 Amendment of s 7 (Prescribed percentage for levy--Act, 16
s 72) 17
Section 7-- 18
insert-- 19
`(c) for the work health and safety levy--0.125%.'. 20
Subdivision 3 Workplace Health and Safety 21
Regulation 2008 22
328 Regulation amended 23
This subdivision amends the Workplace Health and Safety 24
Regulation 2008. 25
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[s 329]
329 Omission of pt 9 (Notifiable building and construction 1
work) 2
Part 9-- 3
omit. 4
330 Omission of sch 1, item 1 (Notification of building and 5
construction work) 6
Schedule 1, item 1-- 7
omit. 8
Division 2 Amendment of Electrical Safety Act 9
2002 10
331 Act amended 11
This division amends the Electrical Safety Act 2002. 12
332 Amendment of s 3 (Act binds all persons) 13
Section 3-- 14
insert-- 15
`(2) The State, Commonwealth and other States are liable for an 16
offence against this Act.'. 17
333 Amendment of s 5 (How purpose of Act is to be achieved) 18
Section 5(a), `obligations'-- 19
omit, insert-- 20
`duties'. 21
334 Amendment of s 10 (Meanings of electrical risk, 22
electrically safe and electrical safety) 23
Section 10(4)-- 24
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[s 335]
omit, insert-- 1
`(4) In this section-- 2
free from electrical risk, for a person or property, means 3
that-- 4
(a) electrical risk to the person or property has been 5
eliminated, so far as is reasonably practicable; or 6
(b) if it is not reasonably practicable to eliminate electrical 7
risk to the person or property, the risk has been 8
minimised so far as is reasonably practicable.'. 9
335 Replacement of ss 14 and 15 10
Sections 14 and 15-- 11
omit, insert-- 12
`14 Meaning of electrical equipment 13
`(1) Electrical equipment means any apparatus, appliance, cable, 14
conductor, fitting, insulator, material, meter or wire that-- 15
(a) is used for controlling, generating, supplying, 16
transforming or transmitting electricity at a voltage 17
greater than extra low voltage; or 18
(b) is operated by electricity at a voltage greater than 19
extra-low voltage; or 20
(c) is part of an electrical installation located in an area in 21
which the atmosphere presents a risk to health and 22
safety from fire or explosion; or 23
(d) is, or is part of, a cathodic protection system. 24
`(2) Electrical equipment does not include any apparatus, 25
appliance, cable, conductor, fitting, insulator, material, meter 26
or wire that is part of a vehicle if-- 27
(a) the equipment is part of a unit of the vehicle that 28
provides propulsion for the vehicle; or 29
(b) the electricity source for the equipment is a unit of the 30
vehicle that provides propulsion to the vehicle. 31
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[s 335]
Examples of things that, under subsection (2), are not electrical 1
equipment-- 2
· the headlights of a vehicle 3
· ignition spark plugs of a motor vehicle 4
· the interior lighting system of a vehicle, if powered from a battery 5
charged by the engine that drives the vehicle or by the vehicle's 6
movement 7
Examples of things that are not prevented by subsection (2) from being 8
electrical equipment-- 9
· interior lighting or a socket outlet in a caravan, if the lighting or 10
outlet is operated by a low voltage generating set or connected to 11
low voltage supply 12
· a refrigeration unit in a food delivery vehicle operating at low 13
voltage from a source separate from the propulsion unit for the 14
vehicle 15
`15 Meaning of electrical installation 16
`(1) An electrical installation is a group of items of electrical 17
equipment that-- 18
(a) are permanently electrically connected together; and 19
(b) can be supplied with electricity from the works of an 20
electricity entity or from a generating source; and 21
(c) do not include items that are works of an electricity 22
entity. 23
`(2) An item of electrical equipment may be part of more than 1 24
electrical installation. 25
`(3) In subsection (1)(a)-- 26
(a) an item of electrical equipment connected to electricity 27
by a plug and socket outlet is not permanently 28
electrically connected; and 29
(b) connection achieved through using works of an 30
electricity entity is not a consideration in determining 31
whether or not electrical equipment is electrically 32
connected. 33
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[s 336]
Examples of an electrical installation-- 1
· the switchboard, wiring, lighting, socket outlets and other electrical 2
equipment permanently connected for a shop in a shopping centre 3
· the switchboard, wiring, lighting, socket outlets and other electrical 4
equipment permanently connected for a house or residential unit 5
· the switchboard, wiring, lighting, socket outlets and other electrical 6
equipment permanently connected for a shopping centre. The 7
electrical installation for the shopping centre generally includes the 8
electrical installations for the individual shops. 9
· the switchboard, wiring, lighting, socket outlets and other electrical 10
equipment permanently connected for a residential unit complex. 11
The electrical installation for the residential unit complex generally 12
includes the electrical installations for the individual residential 13
units. 14
· the switchboard, wiring, lighting, socket outlets and other electrical 15
equipment permanently connected within a caravan 16
336 Replacement of s 18 (Meaning of electrical work) 17
Section 18-- 18
omit, insert-- 19
`18 Meaning of electrical work 20
`(1) Electrical work means-- 21
(a) connecting electricity supply wiring to electrical 22
equipment or disconnecting electricity supply wiring 23
from electrical equipment; or 24
(b) manufacturing, constructing, installing, removing, 25
adding, testing, replacing, repairing, altering or 26
maintaining electrical equipment or an electrical 27
installation. 28
Examples of electrical work-- 29
· installing low voltage electrical wiring in a building 30
· installing electrical equipment into an installation coupler or 31
interconnecter 32
· replacing a low voltage electrical component of a washing machine 33
· maintaining an electricity entity's overhead distribution system 34
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[s 336]
`(2) Electrical work does not include the following-- 1
(a) work that involves connecting electrical equipment to an 2
electricity supply by means of a flexible cord plug and 3
socket outlet; 4
(b) work on a non-electrical component of electrical 5
equipment, if the person carrying out the work is not 6
exposed to an electrical hazard; 7
Examples for paragraph (b)-- 8
· painting electrical equipment covers 9
· repairing hydraulic components of an electrical motor 10
· replacing a drive belt on a washing machine 11
(c) replacing electrical equipment or a component of 12
electrical equipment if that task can be safely performed 13
by a person who does not have expertise in carrying out 14
electrical work; 15
Examples for paragraph (c)-- 16
· replacing a fuse 17
· replacing a light bulb in a light fitting 18
(d) assembling, making, modifying or repairing electrical 19
equipment in a workplace under the Work Health and 20
Safety Act 2011 that is prescribed under a regulation for 21
this paragraph, if that is the principal manufacturing 22
process at the workplace, and arrangements are in place, 23
and are detailed in written form, for ensuring that-- 24
(i) the work is done safely and competently; and 25
(ii) the equipment is tested to ensure compliance with 26
relevant standards; 27
(e) building or repairing ducts, conduits or troughs 28
(channels) where electrical wiring will be or is installed, 29
if-- 30
(i) the channels are not intended to be earthed; and 31
(ii) wiring installed in the channels is not energised; 32
and 33
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[s 336]
(iii) the work is done under the supervision of a person 1
licensed to perform electrical installation work; 2
(f) locating or mounting electrical equipment, or fixing 3
electrical equipment in place, if this task is not 4
performed in relation to the connection of electrical 5
equipment to an electricity supply; 6
(g) assisting a licensed electrical worker to carry out 7
electrical work, on electrical equipment under the direct 8
supervision of the electrical worker, if the assistance 9
does not involve physical contact with any energised 10
electrical equipment; 11
(h) carrying out electrical work, other than work on 12
energised electrical equipment, in order to meet 13
eligibility requirements in relation to becoming a 14
licensed electrical worker and only if the work is 15
prescribed under a regulation for this paragraph; 16
(i) building, under the supervision of an electricity entity, 17
an overhead electric line on structures that do not 18
already carry an energised overhead electric line; 19
(j) laying, cutting or sealing underground cables that are 20
part of the works of an electricity entity before the initial 21
connection of the cables to an electricity source; 22
(k) recovering underground cables that are part of the works 23
of an electricity entity after disconnection from an 24
electricity source; 25
(l) altering, repairing, maintaining or recovering an 26
overhead electric line that is part of the works of an 27
electricity entity, if the work is performed under the 28
entity's supervision and-- 29
(i) if the line is not on supports supporting another 30
electric line--the line has been isolated from an 31
electricity source so that the closure of a switch can 32
not energise the section of the line where work is 33
being done; or 34
(ii) if the line is on supports supporting another electric 35
line--both lines have been isolated from an 36
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[s 337]
electricity source so that the closure of a switch can 1
not energise the section of the line where the work 2
is being done or an adjacent section of the other 3
line; 4
(m) erecting structures for the support of electrical 5
equipment; 6
Examples of structures-- 7
· electric poles and towers 8
(n) locating, mounting or fixing in place electrical 9
equipment, other than-- 10
(i) making or terminating electrical connections to the 11
equipment; or 12
(ii) installing supply conductors that will connect the 13
equipment to a supply of electricity; 14
(o) maintaining the structural parts of the electrical traction 15
system on a railway, other than overhead electric lines, 16
that forms part of the works of an electrical entity, if the 17
work is structural work performed under a safe system 18
of work.'. 19
337 Replacement of s 21 (Meaning of employer) 20
Section 21-- 21
omit, insert-- 22
`21 Meaning of person conducting a business or 23
undertaking 24
`(1) For this Act, a person conducts a business or undertaking-- 25
(a) whether the person conducts the business or undertaking 26
alone or with others; and 27
(b) whether or not the business or undertaking is conducted 28
for profit or gain. 29
`(2) A business or undertaking conducted by a person includes a 30
business or undertaking conducted by a partnership or an 31
unincorporated association. 32
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[s 338]
`(3) If a business or undertaking is conducted by a partnership 1
(other than an incorporated partnership), a reference in this 2
Act to a person conducting the business or undertaking is to 3
be read as a reference to each partner in the partnership. 4
`(4) A person does not conduct a business or undertaking to the 5
extent that the person is engaged solely as a worker in, or as 6
an officer of, that business or undertaking. 7
`(5) An elected member of a local government does not in that 8
capacity conduct a business or undertaking. 9
`(6) A regulation may state the circumstances in which a person 10
may be taken not to be a person who conducts a business or 11
undertaking for the purposes of this Act or any provision of 12
this Act. 13
`(7) A volunteer association does not conduct a business or 14
undertaking for the purposes of this Act. 15
`(8) In this section, volunteer association means a group of 16
volunteers working together for 1 or more community 17
purposes where none of the volunteers, whether alone or 18
jointly with any other volunteers, employs any person to carry 19
out work for the volunteer association.'. 20
338 Replacement of s 22 (Meaning of worker) 21
Section 22-- 22
omit, insert-- 23
`22 Meaning of worker 24
`(1) A person is a worker if the person carries out work in any 25
capacity for a person conducting a business or undertaking, 26
including work as-- 27
(a) an employee; or 28
(b) a contractor or subcontractor; or 29
(c) an employee of a contractor or subcontractor; or 30
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[s 339]
(d) an employee of a labour hire company who has been 1
assigned to work in the person's business or 2
undertaking; or 3
(e) an outworker; or 4
(f) an apprentice or trainee; or 5
(g) a student gaining work experience; or 6
(h) a volunteer; or 7
(i) a person of a prescribed class. 8
`(2) For this Act, a police officer is-- 9
(a) a worker; and 10
(b) at work throughout the time when the officer is on duty 11
or lawfully performing the functions of a police officer, 12
but not otherwise. 13
`(3) The person conducting the business or undertaking is also a 14
worker if the person is an individual who carries out work in 15
that business or undertaking.'. 16
339 Omission of s 23 (Meaning of self-employed person) 17
Section 23-- 18
omit. 19
340 Amendment of pt 2 hdg (Electrical safety obligations) 20
Part 2, heading `obligations'-- 21
omit, insert-- 22
`duties'. 23
341 Replacement of pt 2, div 1 (Preliminary) 24
Part 2, division 1-- 25
omit, insert-- 26
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[s 341]
`Division 1 Introductory 1
`Subdivision 1 Principles that apply to duties 2
`26 Principles that apply to duties 3
`This subdivision sets out the principles that apply to all duties 4
that persons have under this Act. 5
`27 Duties not transferable 6
`A duty can not be transferred to another person. 7
`27A Person may have more than 1 duty 8
`A person can have more than 1 duty by virtue of being in 9
more than 1 class of duty holder. 10
`27B More than 1 person can have a duty 11
`(1) More than 1 person can concurrently have the same duty. 12
`(2) Each duty holder must comply with that duty to the standard 13
required by this Act even if another duty holder has the same 14
duty. 15
`(3) If more than 1 person has a duty for the same matter, each 16
person-- 17
(a) retains responsibility for the person's duty in relation to 18
the matter; and 19
(b) must discharge the person's duty to the extent to which 20
the person has the capacity to influence and control the 21
matter or would have had that capacity but for an 22
agreement or arrangement purporting to limit or remove 23
that capacity. 24
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[s 342]
`Subdivision 2 What is reasonably practicable 1
`28 What is reasonably practicable in ensuring electrical 2
safety 3
`In this Act, reasonably practicable, in relation to a duty to 4
ensure electrical safety, means that which is, or was at a 5
particular time, reasonably able to be done in relation to 6
ensuring electrical safety, taking into account and weighing 7
up all relevant matters including-- 8
(a) the likelihood of the hazard or the risk concerned 9
happening; and 10
(b) the degree of harm that might result from the hazard or 11
the risk; and 12
(c) what the person concerned knows, or ought reasonably 13
to know, about-- 14
(i) the hazard or the risk; and 15
(ii) ways of eliminating or minimising the risk; and 16
(d) the availability and suitability of ways to eliminate or 17
minimise the risk; and 18
(e) after assessing the extent of the risk and the available 19
ways of eliminating or minimising the risk, the cost 20
associated with available ways of eliminating or 21
minimising the risk, including whether the cost is 22
grossly disproportionate to the risk.'. 23
342 Amendment of pt 2, div 2 heading 24
Part 2, division 2, heading-- 25
omit, insert-- 26
`Division 2 Duties of care'. 27
343 Amendment of s 29 (Obligation of electricity entity) 28
(1) Section 29, heading `Obligation'-- 29
Page 222
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[s 344]
omit, insert-- 1
`Duty'. 2
(2) Section 29(1), `an obligation'-- 3
omit, insert-- 4
`a duty'. 5
(3) Section 29(2), `obligation'-- 6
omit, insert-- 7
`duty'. 8
344 Amendment of s 30 (Obligation of employer or 9
self-employed person) 10
(1) Section 30, heading-- 11
omit, insert-- 12
`30 Primary duty of care'. 13
(2) Section 30(1) and (2)-- 14
omit, insert-- 15
`(1) A person conducting a business or undertaking must ensure 16
the person's business or undertaking is conducted in a way 17
that is electrically safe.'. 18
(3) Section 30(3), `Without' to `includes--'-- 19
omit, insert-- 20
`Without limiting subsection (1), the duty includes--'. 21
(4) Section 30(3)-- 22
renumber as section 30(2). 23
345 Amendment of s 31 (Obligation of designer of electrical 24
equipment) 25
(1) Section 31, heading-- 26
omit, insert-- 27
Page 223
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 346]
`31 Duty of person conducting business or undertaking that 1
designs electrical equipment or an electrical installation'. 2
(2) Section 31, from `A designer' to `ensure that--'-- 3
omit, insert-- 4
`(1) This section applies to a person (the designer) who conducts a 5
business or undertaking that designs electrical equipment or 6
an electrical installation. 7
`(2) The designer must ensure that--'. 8
346 Amendment of s 32 (Obligation of manufacturer of 9
electrical equipment) 10
(1) Section 32, heading-- 11
omit, insert-- 12
`32 Duty of person conducting business or undertaking that 13
manufactures electrical equipment'. 14
(2) Section 32(2)-- 15
renumber as section 32(3). 16
(3) Section 32(3), as renumbered, `obligation'-- 17
omit, insert-- 18
`duty'. 19
(4) Section 32(1), from `A manufacturer' to `ensure that--'-- 20
omit, insert-- 21
`(1) This section applies to a person (the manufacturer) who 22
conducts a business or undertaking that manufactures 23
electrical equipment. 24
`(2) The manufacturer must ensure that--'. 25
347 Amendment of s 33 (Obligation of importer of electrical 26
equipment) 27
(1) Section 33, heading-- 28
omit, insert-- 29
Page 224
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[s 348]
`33 Duty of person conducting business or undertaking that 1
imports electrical equipment'. 2
(2) Section 33(2)-- 3
renumber as section 33(3). 4
(3) Section 33(3), `obligation'-- 5
omit, insert-- 6
`duty'. 7
(4) Section 33(1)-- 8
omit, insert-- 9
`(1) This section applies to a person (the importer) who conducts a 10
business or undertaking that imports electrical equipment. 11
`(2) The importer must ensure that the electrical equipment is 12
electrically safe.'. 13
348 Replacement of s 34 (Obligation of supplier of electrical 14
equipment) 15
Section 34-- 16
omit, insert-- 17
`34 Duty of person conducting business or undertaking 18
that supplies electrical equipment 19
`(1) This section applies to a person (the supplier) who conducts a 20
business or undertaking that supplies electrical equipment. 21
`(2) The supplier must ensure that when the electrical equipment 22
leaves the supplier, it is accompanied by information about the 23
way the electrical equipment must be used to ensure that its 24
use is electrically safe.'. 25
349 Amendment of s 35 (Additional obligations of designer, 26
manufacturer, importer or supplier of electrical 27
equipment) 28
(1) Section 35, heading, `obligations'-- 29
omit, insert-- 30
Page 225
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[s 350]
`duties'. 1
(2) Section 35(1), `has an obligation to'-- 2
omit, insert-- 3
`mentioned in section 31, 32, 33 or 34 must'. 4
(3) Section 35(2), `has an obligation to'-- 5
omit, insert-- 6
`mentioned in section 31, 32, 33 or 34 must'. 7
350 Amendment of s 36 (Obligation of installer of electrical 8
equipment or electrical installation) 9
(1) Section 36, heading, `Obligation'-- 10
omit, insert-- 11
`Duty'. 12
(2) Section 36, from `A person' to `ensure that--'-- 13
omit, insert-- 14
`(1) This section applies to a person (the installer) who installs 15
electrical equipment or an electrical installation. 16
`(2) The installer must ensure that--'. 17
351 Amendment of s 37 (Obligation of repairer of electrical 18
equipment or electrical installation) 19
(1) Section 37, heading, `Obligation'-- 20
omit, insert-- 21
`Duty'. 22
(2) Section 37(2), `obligation'-- 23
omit, insert-- 24
`duty'. 25
(3) Section 37(2)-- 26
renumber as section 37(3). 27
Page 226
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Part 18 Amendment of other legislation relating to safety
[s 352]
(4) Section 37(1), from `A person' to `ensure that--'-- 1
omit, insert-- 2
`(1) This section applies to a person (the repairer) who repairs 3
electrical equipment or an electrical installation. 4
`(2) The repairer must ensure that--'. 5
352 Amendment of s 38 (Obligation of person in control of 6
electrical equipment) 7
(1) Section 38, heading, `Obligation'-- 8
omit, insert-- 9
`Duty'. 10
(2) Section 38(2)-- 11
renumber as section 38(3). 12
(3) Section 38(1), from `A person' to `ensure the'-- 13
omit, insert-- 14
`(1) This section applies to a person who is in control of electrical 15
equipment. 16
`(2) The person must ensure that the'. 17
353 Insertion of new s 38A 18
After section 37-- 19
insert-- 20
`38A Duty of officers 21
`(1) If a person conducting a business or undertaking has a duty 22
under this Act, an officer of the person conducting the 23
business or undertaking must exercise due diligence to ensure 24
that the person conducting the business or undertaking 25
complies with that duty. 26
`(2) Subject to subsection (3), the maximum penalty applicable 27
under division 2A for an offence relating to the duty of an 28
officer under this section is the maximum penalty fixed for an 29
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Part 18 Amendment of other legislation relating to safety
[s 353]
officer of a person conducting a business or undertaking for 1
that offence. 2
`(3) Despite anything to the contrary in section 40D, if the duty of 3
a person conducting a business or undertaking was imposed 4
under a provision other than sections 29 to 40, the maximum 5
penalty under 40D for an offence by an officer under section 6
40D in relation to the duty is the maximum penalty fixed 7
under the provision creating the duty for an individual who 8
fails to comply with the duty. 9
`(4) An officer of a person conducting a business or undertaking 10
may be convicted or found guilty of an offence under this Act 11
relating to a duty under this section whether or not the person 12
conducting the business or undertaking has been convicted of 13
an offence under this Act relating to the duty. 14
`(5) In this section, due diligence includes taking reasonable 15
steps-- 16
(a) to acquire and keep up-to-date knowledge of electrical 17
safety matters; and 18
(b) to gain an understanding of the nature of the operations 19
of the business or undertaking of the person conducting 20
the business or undertaking and generally of the hazards 21
and risks associated with those operations; and 22
(c) to ensure that the person conducting the business or 23
undertaking has available for use, and uses, appropriate 24
resources and processes to eliminate or minimise risks 25
to electrical safety from work carried out as part of the 26
conduct of the business or undertaking; and 27
(d) to ensure that the person conducting the business or 28
undertaking has appropriate processes for receiving and 29
considering information regarding incidents, hazards 30
and risks and responding in a timely way to that 31
information; and 32
(e) to ensure that the person conducting the business or 33
undertaking has, and implements, processes for 34
complying with any duty of the person conducting the 35
business or undertaking under this Act; and 36
Page 228
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 354]
Example-- 1
For paragraph (e), the duties under this Act of a person 2
conducting a business or undertaking may include-- 3
· ensuring compliance with notices issued under this Act; 4
· ensuring the provision of training and instruction to workers 5
about electrical safety. 6
(f) to verify the provision and use of the resources and 7
processes mentioned in paragraphs (c) to (e).'. 8
354 Replacement of s 39 (Obligation of worker) 9
(1) Section 39-- 10
omit, insert-- 11
`39 Duty of worker 12
`While at work, a worker must-- 13
(a) take reasonable care for the worker's own electrical 14
safety; and 15
(b) take reasonable care that the worker's acts or omissions 16
do not adversely affect the electrical safety of other 17
persons or property; and 18
(c) comply, so far as the worker is reasonably able, with-- 19
(i) any reasonable instruction that is given by the 20
person conducting the business or undertaking to 21
allow the person to comply with this Act; or 22
(ii) subject to subparagraph (i), any reasonable 23
instruction about electrical equipment located at 24
the workplace given by a person in control of the 25
electrical equipment to allow the person to comply 26
with this Act; and 27
(d) cooperate with any reasonable policy or procedure of 28
the person conducting the business or undertaking 29
relating to electrical safety at the workplace that has 30
been notified to workers.'. 31
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Part 18 Amendment of other legislation relating to safety
[s 355]
355 Replacement of s 40 (Obligation of other person) 1
(1) Section 40-- 2
omit, insert-- 3
`40 Duty of other person 4
`(1) This section applies to a person at a place where electrical 5
equipment is located, whether or not the person has another 6
duty under this part. 7
`(2) The person must-- 8
(a) take reasonable care for the person's electrical safety; 9
and 10
(b) take reasonable care that the person's acts or omissions 11
do not adversely affect the electrical safety of other 12
persons; and 13
(c) comply, so far as the person is reasonably able, with any 14
reasonable instruction that is given by the person in 15
control of the electrical equipment to allow the person to 16
comply with this Act.'. 17
356 Amendment of s 40A (Minister may make recall order) 18
Section 40A, note, `an obligation'-- 19
omit, insert-- 20
`a duty'. 21
357 Renumbering of pt 2, div 2A 22
(1) Part 2, division 2A-- 23
renumber as part 2, division 2B. 24
(2) Sections 40A, as amended, to 40E-- 25
renumber as sections 40G to 40K. 26
(3) Section 40I, as renumbered, `section 40B(2)'-- 27
omit, insert-- 28
Page 230
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 358]
`section 40H(2).'. 1
(4) Section 40J, as renumbered, `40E'-- 2
omit, insert-- 3
`40K'. 4
358 Insertion of new pt 2, div 2A 5
Part 2-- 6
insert-- 7
`Division 2A Offences and penalties 8
`40A Electrical safety duty 9
`Electrical safety duty means a duty imposed under division 10
2. 11
`40B Reckless conduct--category 1 12
`(1) A person commits a category 1 offence if-- 13
(a) the person has an electrical safety duty; and 14
(b) the person, without reasonable excuse, engages in 15
conduct that exposes an individual to whom that duty is 16
owed to a risk of death or serious injury or illness; and 17
(c) the person is reckless as to the risk to an individual of 18
death or serious injury or illness. 19
Maximum penalty-- 20
(a) for an offence committed by an individual, other than as 21
a person conducting a business or undertaking or as an 22
officer of a person conducting a business or 23
undertaking--3000 penalty units or 5 years 24
imprisonment; or 25
(b) for an offence committed by an individual as a person 26
conducting a business or undertaking or as an officer of 27
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[s 358]
a person conducting a business or undertaking--6000 1
penalty units or 5 years imprisonment; or 2
(c) for an offence committed by a body corporate--30000 3
penalty units. 4
`(2) The prosecution bears the burden of proving that the conduct 5
was engaged in without reasonable excuse. 6
`(3) A category 1 offence is a crime. 7
`40C Failure to comply with electrical safety 8
duty--category 2 9
`A person commits a category 2 offence if-- 10
(a) the person has an electrical safety duty; and 11
(b) the person fails to comply with that duty; and 12
(c) the failure exposes an individual to a risk of death or 13
serious injury or illness. 14
Maximum penalty-- 15
(a) for an offence committed by an individual. other than as 16
a person conducting a business or undertaking or as an 17
officer of a person conducting a business or 18
undertaking--1500 penalty units; or 19
(b) for an offence committed by an individual as a person 20
conducting a business or undertaking or as an officer of 21
a person conducting a business or undertaking--3000 22
penalty units; or 23
(c) for an offence committed by a body corporate--15000 24
penalty units. 25
`40D Failure to comply with electrical safety 26
duty--category 3 27
`A person commits a category 3 offence if-- 28
(a) the person has an electrical safety duty; and 29
(b) the person fails to comply with that duty. 30
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[s 358]
Maximum penalty-- 1
(a) for an offence committed by an individual, other than as 2
a person conducting a business or undertaking or as an 3
officer of a person conducting a business or 4
undertaking--500 penalty units; or 5
(b) for an offence committed by an individual as a person 6
conducting a business or undertaking or as an officer of 7
a person conducting a business or undertaking--1000 8
penalty units; or 9
(c) for an offence committed by a body corporate--5000 10
penalty units. 11
`40E Duty prevails over particular excuses 12
`For an offence against sections 40C and 40D, the Criminal 13
Code sections 23(1) and 24 are subject to division 2. 14
Note-- 15
This rule is similar to the rule in the Criminal Code section 23(1) 16
(extended to section 24), which makes that provision subject to express 17
provisions of the Criminal Code relating to negligent acts and omission. 18
`40F Exceptions 19
`(1) A volunteer does not commit an offence under this division 20
for a failure to comply with an electrical safety duty, except a 21
duty under section 39 or 40. 22
`(2) An unincorporated association does not commit an offence 23
under this Act for a failure to comply with a duty imposed on 24
the unincorporated association under this Act. 25
`(3) However-- 26
(a) an officer of an unincorporated association (other than a 27
volunteer) may be liable for a failure to comply with a 28
duty under section 38A; and 29
(b) a member of an unincorporated association may be 30
liable for failure to comply with a duty under section 39 31
or 40.'. 32
Page 233
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 359]
359 Amendment of pt 2, div 3, hdg 1
Part 2, division 3, heading, `obligations'-- 2
omit, insert-- 3
`duties'. 4
360 Omission of s 41 (Effect of regulation for discharge of 5
electrical safety obligation) 6
Section 41-- 7
omit. 8
361 Amendment of s 42 (Ministerial notice about discharging 9
electrical safety obligation) 10
(1) Section 42, heading, `obligation'-- 11
omit, insert-- 12
`duty'. 13
(2) Section 42(2), `obligation'-- 14
omit, insert-- 15
`duty'. 16
362 Amendment of s 43 (Effect of ministerial notice for 17
discharge of electrical safety obligation) 18
(1) Section 43, heading `obligation'-- 19
omit, insert-- 20
`duty'. 21
(2) Section 43(1) and (2), `obligation'-- 22
omit, insert-- 23
`duty'. 24
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[s 363]
363 Amendment of s 44 (Code of practice about discharging 1
electrical safety obligation) 2
(1) Section 44, heading, `obligation'-- 3
omit, insert-- 4
`duty'. 5
(2) Section 44(1), `obligation'-- 6
omit, insert-- 7
`duty'. 8
364 Replacement of s 45 (Effect of code of practice for 9
discharge of electrical safety obligation) 10
Section 45-- 11
omit, insert-- 12
`45 Use of code of practice in proceedings 13
`(1) This section applies in a proceeding for an offence against this 14
Act. 15
`(2) A code of practice is admissible in the proceeding as evidence 16
of whether or not a duty under this Act has been complied 17
with. 18
`(3) The court may-- 19
(a) have regard to the code as evidence of what is known 20
about a hazard or risk, risk assessment or risk control to 21
which the code relates; and 22
(b) rely on the code in deciding what is reasonably 23
practicable in the circumstances to which the code 24
relates. 25
Note-- 26
See section 28 for the meaning of reasonably practicable. 27
`(4) Nothing in this section prevents a person from introducing 28
evidence of compliance with this Act in a way that is different 29
from the code but provides a standard of electrical safety that 30
Page 235
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 365]
is equivalent to or higher than the standard required in the 1
code.'. 2
365 Omission of pt 2, div 4 (Defences) 3
Part 2, division 4-- 4
omit. 5
366 Omission of pt 2, div 5 (Effect of Act on civil liability) 6
Part 2, division 5-- 7
omit. 8
367 Replacement of pt 3 (Enforceable undertakings) 9
Part 3-- 10
omit, insert-- 11
`Part 3 Enforceable undertakings 12
`49 Regulator may accept an electrical safety 13
undertaking 14
`(1) The regulator may accept a written undertaking (an electrical 15
safety undertaking) given by a person in connection with a 16
matter relating to a contravention or alleged contravention by 17
the person of this Act. 18
Note-- 19
Section 186(4) requires the regulator to publish guidelines in relation to 20
the acceptance of electrical safety undertakings. 21
`(2) An electrical safety undertaking can not be accepted for a 22
contravention or alleged contravention that is a category 1 23
offence. 24
`(3) The giving of an electrical safety undertaking does not 25
constitute an admission of guilt by the person giving it for the 26
contravention or alleged contravention to which the 27
undertaking relates. 28
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[s 367]
`50 Notice of decision and reasons for decision 1
`(1) The regulator must give the person seeking to make an 2
electrical safety undertaking written notice of the regulator's 3
decision to accept or reject the undertaking and of the reasons 4
for the decision. 5
`(2) The regulator must publish, on the regulator's website, notice 6
of a decision to accept an electrical safety undertaking and the 7
reasons for that decision. 8
`51 When an electrical safety undertaking is enforceable 9
`An electrical safety undertaking takes effect and becomes 10
enforceable when the regulator's decision to accept the 11
undertaking is given to the person who made the undertaking 12
or at any later date stated by the regulator. 13
`52 Compliance with an electrical safety undertaking 14
`A person must not contravene an electrical safety undertaking 15
made by that person that is in effect. 16
Maximum penalty-- 500 penalty units. 17
`53 Contravention of an electrical safety undertaking 18
`(1) The regulator may apply to a Magistrates Court for an order if 19
a person contravenes an electrical safety undertaking. 20
`(2) If the court is satisfied that the person who made the electrical 21
safety undertaking has contravened the undertaking, the court, 22
in addition to the imposition of any penalty, may make 1 or 23
both of the following orders-- 24
(a) an order directing the person to comply with the 25
undertaking; 26
(b) an order discharging the undertaking. 27
`(3) In addition to the orders mentioned in subsection (2), the court 28
may make any other order that the court considers appropriate 29
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Part 18 Amendment of other legislation relating to safety
[s 367]
in the circumstances, including orders directing the person to 1
pay to the State-- 2
(a) the costs of the proceedings; and 3
(b) the reasonable costs of the regulator in monitoring 4
compliance with the electrical safety undertaking in the 5
future. 6
`(4) Nothing in this section prevents proceedings being taken for 7
the contravention or alleged contravention of this Act to 8
which the electrical safety undertaking relates. 9
Note-- 10
Section 54A states circumstances affecting proceedings for a 11
contravention for which an electrical safety undertaking has been given. 12
`54 Withdrawal or variation of electrical safety 13
undertaking 14
`(1) A person who has made an electrical safety undertaking may 15
at any time, with the written agreement of the regulator-- 16
(a) withdraw the undertaking; or 17
(b) vary the undertaking. 18
`(2) However, the provisions of the undertaking can not be varied 19
to provide for a different alleged contravention of the Act. 20
`(3) The regulator must publish, on the regulator's website, notice 21
of the withdrawal or variation of an electrical safety 22
undertaking. 23
`54A Proceeding for alleged contravention 24
`(1) Subject to this section, no proceedings for a contravention or 25
alleged contravention of this Act may be taken against a 26
person if an electrical safety undertaking is in effect in 27
relation to the contravention. 28
`(2) No proceedings may be taken for a contravention or alleged 29
contravention of this Act against a person who has made an 30
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Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 368]
electrical safety undertaking for the contravention and has 1
completely discharged the electrical safety undertaking. 2
`(3) The regulator may accept an electrical safety undertaking for 3
a contravention or alleged contravention before proceedings 4
for the contravention have been finalised. 5
`(4) If the regulator accepts an electrical safety undertaking before 6
the proceedings are finalised, the regulator must take all 7
reasonable steps to have the proceedings discontinued as soon 8
as possible.'. 9
368 Amendment of s 57AA (Employer or self-employed 10
person must ensure workers are appropriately licensed) 11
(1) Section 57AA, heading, `Employer or self-employed 12
person'-- 13
omit, insert-- 14
`Person conducting a business or undertaking'. 15
(2) Section 57AA(1)-- 16
omit, insert-- 17
`(1) This section applies if a person is conducting a business or 18
undertaking that includes the performance of electrical work.'. 19
(3) Section 57AA(2), `employer or self-employed'-- 20
omit. 21
369 Amendment of s 57AB (Employers or self-employed 22
persons must keep register of licensed workers) 23
(1) Section 57AB, heading, `Employers or self-employed 24
persons'-- 25
omit, insert-- 26
`Person conducting a business or undertaking'. 27
(2) Section 57AB(1)(a)-- 28
omit, insert-- 29
Page 239
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 370]
`(a) a person (the relevant person) conducts a business or 1
undertaking that includes the performance of electrical 2
work; and'. 3
(3) Section 57AB(1)(b), (2) and (3), `relevant employer' or 4
`employer'-- 5
omit, insert-- 6
`relevant person'. 7
370 Amendment of s 57AC (Licence holder engaged by 8
employer or self-employed person must notify changes) 9
(1) Section 57AC, heading-- 10
omit, insert-- 11
`57AC Licence holder engaged by person conducting a 12
business or undertaking must notify changes'. 13
(2) Section 57AC(1)-- 14
omit, insert-- 15
`(1) This section applies if the holder of an electrical work license 16
is engaged to perform or supervise electrical work for a 17
person (the relevant person) who conducts a business or 18
undertaking that includes the performance of electrical work.'. 19
(3) Section 57AC(2), `employer'-- 20
omit, insert-- 21
`person'. 22
371 Amendment of s 63 (Electrical licence conditions and 23
restrictions) 24
(1) Section 63, `chief executive'-- 25
omit, insert-- 26
`regulator'. 27
(2) Section 63, Examples of restrictions, second dot point, `an 28
employer'-- 29
Page 240
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 372]
omit, insert-- 1
`a person conducting a business or undertaking who is'. 2
372 Amendment of s 67 (Obligation of prescribed electricity 3
entity) 4
Section 67, heading-- 5
omit, insert-- 6
`67 Safety management system'. 7
373 Amendment of s 77 (Composition of board) 8
Section 77(1)(b)-- 9
omit, insert-- 10
`(b) the regulator;'. 11
374 Amendment of s 94 (Functions of equipment committee) 12
Section 94(3)(f), `hire,'-- 13
omit. 14
375 Amendment of pt 10, hdg 15
Part 10, heading-- 16
omit, insert-- 17
`Part 10 Regulator, inspectors and 18
accredited auditors'. 19
376 Renumbering of pt 10, div 2 20
Part 10, division 2-- 21
renumber as part 10, division 3. 22
Page 241
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 377]
377 Replacement of pt 10, div 1 1
Part 10, division 1-- 2
omit, insert-- 3
`Division 1 Regulator 4
`122 Functions of regulator 5
`(1) The regulator has the following functions-- 6
(a) to advise and make recommendations to the Minister 7
and report on the operation and effectiveness of this Act; 8
(b) to monitor and enforce compliance with this Act; 9
(c) to provide advice and information on electrical safety to 10
duty holders under this Act and to the community; 11
(d) to collect, analyse and publish statistics relating to 12
electrical safety; 13
(e) to foster a cooperative, consultative relationship 14
between duty holders and the persons to whom they owe 15
duties and their representatives in relation to electrical 16
safety matters; 17
(f) to promote and support education and training on 18
matters relating to electrical safety; 19
(g) to engage in, promote and coordinate the sharing of 20
information to achieve the object of this Act, including 21
the sharing of information with a corresponding 22
regulator; 23
(h) to conduct and defend proceedings under this Act before 24
a court or tribunal; 25
(i) any other function conferred on the regulator under this 26
Act. 27
`(2) The regulator must act independently when making a decision 28
under this Act but otherwise is subject to direction in the 29
person's capacity as a public service officer and an officer of 30
the department. 31
Page 242
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Part 18 Amendment of other legislation relating to safety
[s 377]
`122A Powers of regulator 1
`(1) Subject to this Act, the regulator has the power to do all things 2
necessary or convenient to be done for or in connection with 3
the performance of the regulator's functions. 4
`(2) Without limiting subsection (1), the regulator has all the 5
powers and functions that an inspector has under this Act. 6
`122B Delegation by regulator 7
`(1) The regulator may delegate to an inspector, appropriately 8
qualified public service employee or a person prescribed 9
under a regulation a function or power of the regulator under 10
this Act. 11
`(2) In this section-- 12
appropriately qualified includes having the qualifications, 13
experience or standing appropriate to perform the function or 14
exercise the power. 15
Example of standing-- 16
a person's classification level in the public service 17
`122C Power of regulator to obtain information 18
`(1) This section applies if the regulator has reasonable grounds to 19
believe that a person is capable of giving information, 20
providing documents or giving evidence in relation to a 21
possible contravention of this Act or that will help the 22
regulator to monitor or enforce compliance with this Act. 23
`(2) The regulator may, by written notice served on the person, 24
require the person to do one or more of the following-- 25
(a) to give the regulator, in writing signed by the person (or 26
in the case of a body corporate, by a competent officer 27
of the body corporate) and within the time and in the 28
way stated in the notice, that information of which the 29
person has knowledge; 30
(b) to produce to the regulator, in accordance with the 31
notice, those documents; 32
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Part 18 Amendment of other legislation relating to safety
[s 377]
(c) to appear before a person appointed by the regulator on 1
a day, and at a time and place, stated in the notice (being 2
a day, time and place that are reasonable in the 3
circumstances) and give either orally or in writing that 4
evidence and produce those documents. 5
`(3) The notice must-- 6
(a) state that the requirement is made under this section; 7
and 8
(b) contain a statement to the effect that a failure to comply 9
with a requirement is an offence; and 10
(c) if the notice requires the person to provide information 11
or documents or answer questions-- 12
(i) contain a statement about the effect of sections 13
141A and 192A; and 14
(ii) state that the person may attend with a legal 15
practitioner. 16
`(4) The regulator must not make a requirement under subsection 17
(2)(c) unless the regulator has taken all reasonable steps to 18
obtain the information under subsections (2)(a) and (b) and 19
has been unable to do so. 20
`(5) A person must not, without reasonable excuse, refuse or fail to 21
comply with a requirement under this section. 22
Maximum penalty--100 penalty units. 23
`(6) Subsection (5) places an evidential burden on the defendant to 24
show a reasonable excuse. 25
`(7) Section 141A, with any necessary changes, applies to a 26
requirement under this section. 27
Page 244
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 377]
`Division 2 Appointment of inspectors 1
`123 Appointment of inspectors 2
`(1) The regulator may, by instrument, appoint any of the 3
following as an inspector-- 4
(a) a public service employee; 5
(b) an employee of a public authority; 6
(c) the holder of a statutory office; 7
(d) a person who is appointed as an inspector under a 8
corresponding law; 9
(e) a person of a class prescribed under a regulation. 10
\`(2) Arrangements may be made for subsection (1)(d) under the 11
Public Service Act 2008, section 183 and 184, as if a reference 12
in the sections to the chief executive were a reference to the 13
regulator. 14
`(3) However, the regulator may appoint a person as an inspector 15
only if-- 16
(a) the regulator is satisfied the person is qualified for 17
appointment because the person has the necessary 18
expertise or experience; or 19
(b) the person has satisfactorily finished training approved 20
by the regulator. 21
`123A Identity cards 22
`(1) The regulator must give each inspector an identity card that 23
states the person's name and appointment as an inspector and 24
includes any other matter prescribed under a regulation. 25
`(2) In exercising a compliance power in relation to a person, an 26
inspector must-- 27
(a) produce the inspector's identity card for the person's 28
inspection before exercising the power; or 29
Page 245
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 377]
(b) have the identity card displayed so it is clearly visible to 1
the person when exercising the power. 2
`(3) However, if it is not practicable to comply with subsection (2), 3
the inspector must produce the identity card for the person's 4
inspection at the first reasonable opportunity. 5
`(4) If a person to whom an identity card has been issued stops 6
being an inspector, the person must return the identity card to 7
the regulator as soon as practicable. 8
Maximum penalty--40 penalty units. 9
`124 Accountability of inspectors 10
`(1) An inspector must give written notice to the regulator of all 11
interests, pecuniary or otherwise, that the inspector has, or 12
acquires, and that conflict or could conflict with the proper 13
performance of the inspector's functions. 14
`(2) The regulator must give a direction to an inspector not to deal, 15
or to no longer deal, with a matter if the regulator becomes 16
aware that the inspector has a potential conflict of interest in 17
relation to a matter and the regulator considers that the 18
inspector should not deal, or should no longer deal, with the 19
matter. 20
`125 Suspension and ending of appointment of inspectors 21
`(1) The regulator may suspend or end the appointment of an 22
inspector. 23
`(2) A person's appointment as an inspector ends when the person 24
stops being eligible for appointment as an inspector. 25
`126 Appointment of temporary inspector 26
`(1) This division applies if-- 27
(a) the regulator considers that an inspector is required 28
urgently to enter a place and investigate the 29
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Part 18 Amendment of other legislation relating to safety
[s 377]
circumstances of a serious electrical incident or 1
dangerous electrical event at the place; and 2
(b) there is no inspector available to enter the place and 3
investigate the circumstances. 4
`(2) The regulator may appoint a person as a temporary inspector 5
to exercise the powers of an inspector for the place. 6
`(3) The person appointed as a temporary inspector need not be a 7
person who could be appointed as an inspector. 8
`(4) However, the regulator may appoint the person as a temporary 9
inspector only if the regulator is satisfied the person has the 10
necessary expertise or experience for what the temporary 11
inspector can reasonably be expected to have to do. 12
`(5) If practicable, the regulator must give the temporary inspector 13
a document evidencing the temporary inspector's 14
appointment. 15
`127 Exercise of powers by temporary inspector 16
`(1) The temporary inspector has all the powers in relation to the 17
place, including any person or thing at the place, that an 18
inspector has under this part. 19
`(2) However, the temporary inspector must not exercise a power 20
unless the temporary inspector is directed by an inspector to 21
exercise the power, whether by phone, fax or another form of 22
communication. 23
`(3) In exercising a power, the temporary inspector must-- 24
(a) comply with any conditions the inspector directing the 25
exercise of power attaches to the direction; and 26
(b) to the greatest practicable extent, show each person 27
affected by the exercise of the power the document 28
evidencing his or her appointment. 29
`(4) Subject to subsections (1) to (3), the temporary inspector is 30
taken to be an inspector under this Act.'. 31
Page 247
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 378]
378 Insertion of new section 136B 1
Part 10, division 3, as renumbered-- 2
insert-- 3
`136B Offence to impersonate accredited auditor 4
`A person who is not an accredited auditor must not, in any 5
way, hold himself or herself out to be an accredited auditor. 6
Maximum penalty--100 penalty units.'. 7
379 Replacement of pt 11 8
Part 11-- 9
omit, insert-- 10
`Part 11 Securing compliance 11
`Division 1 Functions and powers of inspectors 12
`137 Functions and powers of inspectors 13
`An inspector has the following functions and powers under 14
this Act-- 15
(a) to provide information and advice about compliance 16
with this Act; 17
(b) to help in the resolution of electrical safety issues; 18
(c) to require compliance with this Act through the issuing 19
of notices; 20
(d) to investigate contraventions of this Act and help in the 21
prosecution of offences. 22
`137A Conditions on inspectors' compliance powers 23
`An inspector's compliance powers are subject to any 24
condition stated in the instrument of the inspector's 25
appointment. 26
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[s 379]
`137B Inspectors subject to regulator's directions 1
`(1) An inspector is subject to the regulator's directions in the 2
exercise of the inspector's compliance powers. 3
`(2) A direction under subsection (1) may be of a general nature or 4
may relate to a stated matter or stated class of matter. 5
`(3) Without limiting subsection (1), the regulator must issue 6
directions to inspectors to ensure powers are exercised under 7
this part in a way that minimises any adverse affect on the 8
privacy, confidentiality and security of persons and 9
businesses. 10
`Division 2 Powers relating to entry 11
`Subdivision 1 General powers of entry 12
`138 Powers of entry 13
`(1) An inspector may at any time enter a place if-- 14
(a) it is a workplace under the control of a person who has 15
an electrical safety duty under this Act, and is-- 16
(i) open for carrying on business; or 17
(ii) otherwise open for entry; or 18
(b) the inspector reasonably suspects it is a workplace under 19
the control of a person who has an electrical safety duty 20
under this Act, and it is-- 21
(i) open for carrying on business; or 22
(ii) otherwise open for entry; or 23
(c) the entry is urgently required to investigate the 24
circumstances of a serious electrical incident or 25
dangerous electrical event. 26
`(2) An entry may be made under subsection (1) with, or without, 27
the consent of the person with management or control of the 28
place. 29
Page 249
Work Health and Safety Bill 2011
Part 18 Amendment of other legislation relating to safety
[s 379]
`(3) The inspector must leave the place immediately if the 1
inspector finds that the place or circumstances are not as 2
mentioned in subsection (1)(a) or (c). 3
`(4) An inspector may enter any place if the entry is authorised by 4
a search warrant. 5
Note-- 6
An inspector may enter residential premises to gain access to a 7
workplace. See section 140. 8
`138A Notification of entry 9
`(1) An inspector may enter a place under section 138 without 10
prior notice to any person. 11
`(2) An inspector must, as soon as practicable after entry to a 12
workplace or suspected workplace, take all reasonable steps to 13
notify the following persons of the entry and the purpose of 14
the entry-- 15
(a) the relevant person conducting a business or undertaking 16
at the workplace; 17
(b) the person with management or control of the 18
workplace. 19
`(3) However, an inspector is not required to notify any person if 20
to do so would defeat the purpose for which the place was 21
entered or cause unreasonable delay. 22
`(4) In this section relevant person conducting a business or 23
undertaking means the person conducting any business or 24
undertaking in relation to which the inspector is exercising the 25
powers of entry. 26
`138B General powers on entry 27
`(1) An inspector who enters a place under section 138 may do any 28
of the following-- 29
(a) search and make inquiries at the place; 30
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Part 18 Amendment of other legislation relating to safety
[s 379]
(b) inspect and examine anything, including a document, at 1
the place; 2
(c) copy a document at the place; 3
(d) bring to the place and use any equipment or materials 4
that may be required; 5
(e) take measurements, conduct tests and make sketches or 6
recordings, including photographs, films, audio, video, 7
digital or other recordings; 8
(f) take and remove for analysis, testing or examination, a 9
substance or thing or a sample of any substance or thing 10
without paying for it; 11
(g) make inquiries or conduct surveys and tests to assess-- 12
(i) the degree of electrical risk to persons or property 13
existing at the place; or 14
(ii) standards of electrical safety existing at the place; 15
(h) inquire into the circumstances and probable causes of 16
any serious electrical incident or dangerous electrical 17
event at the place; 18
(i) require a person at the place to give the inspector 19
reasonable help to exercise the inspector's powers under 20
paragraphs (a) to (h); 21
(j) exercise any compliance power or other power that is 22
reasonably necessary to be exercised by the inspector 23
for this Act. 24
`(2) A person required to give reasonable help under subsection 25
(1)(i) must not, without reasonable excuse, refuse or fail to 26
comply with the requirement. 27
Maximum penalty--100 penalty units. 28
`(3) Subsection (2) places an evidential burden on the defendant to 29
show a reasonable excuse. 30
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[s 379]
`138C Persons assisting inspectors 1
`(1) A person, including an interpreter, may accompany the 2
inspector entering a place under section 138 to assist the 3
inspector if the inspector considers the assistance is necessary. 4
`(2) The person-- 5
(a) may do the things at the place and in the way that the 6
inspector reasonably requires to assist the inspector to 7
exercise compliance powers; but 8
(b) must not do anything that the inspector does not have 9
power to do, except as permitted under a search warrant. 10
`(3) Anything done lawfully by the person is taken for all purposes 11
to have been done by the inspector. 12
`138D Analysis 13
`(1) The regulator may have a substance, thing or sample taken by 14
an inspector under 138B(1)(f) analysed. 15
`(2) A person must not, with intent to adversely affect the analysis 16
of the thing-- 17
(a) tamper with a substance or thing before an inspector 18
takes a sample of the substance or thing for analysis; or 19
(b) tamper with the substance, thing or sample after it is 20
taken by an inspector for analysis. 21
Maximum penalty--100 penalty units. 22
`(3) If a particular method of analysis has been prescribed under a 23
regulation, the analyst must follow the method. 24
`(4) The regulator must obtain from the analyst a certificate or 25
report stating the analysis result. 26
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`Subdivision 2 Search warrants 1
`139 Search warrants 2
`(1) An inspector may apply to a magistrate for a search warrant 3
for a place. 4
`(2) The application must be sworn and state the grounds on which 5
the warrant is sought. 6
`(3) The magistrate may refuse to consider the application until the 7
inspector gives the magistrate all the information the 8
magistrate requires about the application in the way the 9
magistrate requires. 10
Example-- 11
The magistrate may require additional information supporting the 12
application to be given by statutory declaration. 13
`(4) The magistrate may issue a search warrant only if the 14
magistrate is satisfied there are reasonable grounds for 15
suspecting-- 16
(a) there is a particular thing or activity (the evidence) that 17
may provide evidence of an offence against this Act; and 18
(b) the evidence is, or may be within the next 72 hours, at 19
the place. 20
`(5) The search warrant must state-- 21
(a) that a stated inspector may, with necessary and 22
reasonable help and force, enter the place and exercise 23
the inspector's compliance powers; and 24
(b) the offence for which the search warrant is sought; and 25
(c) the evidence that may be seized under the search 26
warrant; and 27
(d) the hours of the day or night when the place may be 28
entered; and 29
(e) the date, within 7 days after the search warrant's issue, 30
the search warrant ends. 31
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`139A Electronic application 1
`(1) An application under section 139 may be made by phone, fax, 2
email, radio, videoconferencing or another form of electronic 3
communication if the inspector reasonably considers it 4
necessary because of-- 5
(a) urgent circumstances; or 6
(b) other special circumstances, including, for example, the 7
inspector's remote location. 8
`(2) The application-- 9
(a) may not be made before the inspector prepares a written 10
application under section 139(2); but 11
(b) may be made before the application is sworn. 12
`(3) The magistrate may issue the warrant (the original warrant) 13
only if the magistrate is satisfied-- 14
(a) it was necessary to make the application under this 15
section; and 16
(b) the way the application was made was appropriate. 17
`(4) After the magistrate issues the original warrant-- 18
(a) if there is a reasonably practicable way of immediately 19
giving a copy of the warrant to the inspector, including, 20
for example, by sending a copy by fax or email, the 21
magistrate must immediately give a copy of the warrant 22
to the inspector; or 23
(b) otherwise-- 24
(i) the magistrate must tell the inspector the 25
information mentioned in section 139(5); and 26
(ii) the inspector must complete a form of warrant, 27
including by writing on it the information 28
mentioned in section 139(5) provided by the 29
magistrate. 30
`(5) The copy of the warrant mentioned in subsection (4)(a), or the 31
form of warrant completed under subsection (4)(b) (in either 32
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case the duplicate warrant), is a duplicate of, and as effectual 1
as, the original warrant. 2
`(6) The inspector must, at the first reasonable opportunity, send to 3
the magistrate-- 4
(a) the written application complying with section 139(2); 5
and 6
(b) if the inspector completed a form of warrant under 7
subsection (4)(b)--the completed form of warrant. 8
`(7) The magistrate must keep the original warrant and, on 9
receiving the documents under subsection (6)-- 10
(a) attach the documents to the original warrant; and 11
(b) give the original warrant and documents to the clerk of 12
the court of the relevant magistrates court. 13
`(8) Despite subsection (5), if-- 14
(a) an issue arises in a proceeding about whether an 15
exercise of a power was authorised by a warrant issued 16
under this section; and 17
(b) the original warrant is not produced in evidence; 18
the onus of proof is on the person relying on the lawfulness of 19
the exercise of the power to prove a warrant authorised the 20
exercise of the power. 21
`(9) This section does not limit section 139. 22
`(10) In this section-- 23
relevant magistrates court, in relation to a magistrate, means 24
the Magistrates Court that the magistrate constitutes under the 25
Magistrates Act 1991. 26
`139B Announcement before entry on warrant 27
`(1) Before executing a search warrant, the inspector named in the 28
warrant or an assistant to the inspector must-- 29
(a) announce that he or she is authorised by the warrant to 30
enter the place; and 31
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(b) give any person at the place an opportunity to allow that 1
entry. 2
`(2) However, the inspector or an assistant to the inspector is not 3
required to comply with subsection (1) if he or she believes on 4
reasonable grounds that immediate entry to the place is 5
needed to ensure-- 6
(a) the safety of any person; or 7
(b) that the effective execution of the warrant is not 8
frustrated. 9
`139C Copy of warrant to be given to person with 10
management or control of place 11
`(1) If the person who has or appears to have management or 12
control of a place is present at the place when a search warrant 13
is being executed, the inspector must-- 14
(a) identify himself or herself to that person by producing 15
his or her identity card for inspection; and 16
(b) give that person a copy of the execution copy of the 17
warrant. 18
`(2) In this section-- 19
execution copy includes a duplicate warrant mentioned in 20
section 139A(5). 21
`Subdivision 3 Limitation on entry powers 22
`140 Places used for residential purposes 23
`Despite anything else in this division, the powers of an 24
inspector under this division in relation to entering a place are 25
not exercisable in relation to any part of a place that is used 26
only for residential purposes except-- 27
(a) with the consent of the person with management or 28
control of the place; or 29
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(b) under the authority conferred by a search warrant; or 1
(c) for the purpose only of gaining access to a place the 2
inspector may enter under section 138, but only-- 3
(i) if the inspector reasonably believes that no 4
reasonable alternative access is available; and 5
(ii) at a reasonable time having regard to the times at 6
which the inspector believes work is being carried 7
out at the place to which access is sought. 8
`Subdivision 4 Specific powers on entry 9
`141 Power to require production of documents and 10
answers to questions 11
`(1) An inspector who enters a place under section 138 may-- 12
(a) require a person to tell the inspector who has custody of, 13
or access to, a document; or 14
(b) require a person who has custody of, or access to, a 15
document to produce that document to the inspector 16
while the inspector is at that place or within a stated 17
period; or 18
(c) require a person at the place to answer any questions put 19
by the inspector. 20
`(2) A requirement under subsection (1)(b) must be made by 21
written notice unless the circumstances require the inspector 22
to have immediate access to the document. 23
`(3) An interview conducted by an inspector under subsection 24
(1)(c) must be conducted in private if-- 25
(a) the inspector considers it appropriate; or 26
(b) the person being interviewed so requests. 27
`(4) Subsection (3) does not limit the operation of section 138C or 28
prevent a representative of the person being interviewed from 29
being present at the interview. 30
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`(5) Subsection (3) may be invoked during an interview by-- 1
(a) the inspector; or 2
(b) the person being interviewed; 3
in which case the subsection applies to the remainder of the 4
interview. 5
`(6) A person must not, without reasonable excuse, refuse or fail to 6
comply with a requirement under this section. 7
Maximum penalty--100 penalty units 8
Note-- 9
See section 141A and 141B in relation to self-incrimination and section 10
192A in relation to legal professional privilege. 11
`(7) Subsection (6) places an evidential burden on the defendant to 12
show a reasonable excuse. 13
`141A Abrogation of privilege against self-incrimination 14
`(1) A person is not excused from answering a question or 15
providing information or a document under this part on the 16
ground that the answer to the question, or the information or 17
document, may tend to incriminate the person or expose the 18
person to a penalty. 19
`(2) However, the answer to a question or information or a 20
document provided by an individual, and other evidence 21
directly or indirectly derived from the answer, information or 22
document, is not admissible as evidence against that 23
individual in civil or criminal proceedings other than 24
proceedings arising out of the false or misleading nature of the 25
answer, information or document. 26
`141B Warning to be given 27
`(1) Before requiring a person to answer a question or provide 28
information or a document under this part, an inspector 29
must-- 30
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(a) identify himself or herself to the person as an inspector 1
by producing the inspector's identity card or in some 2
other way; and 3
(b) warn the person that failure to comply with the 4
requirement or to answer the question, without 5
reasonable excuse, would constitute an offence; and 6
(c) warn the person about the effect of section 141A; and 7
(d) advise the person about the effect of section 192A. 8
`(2) It is not an offence for an individual to refuse to answer a 9
question put by an inspector or provide information or a 10
document to an inspector under this part on the ground that 11
the question, information or document might tend to 12
incriminate him or her, unless he or she was first given the 13
warning in subsection (1)(c). 14
`(3) Nothing in this section prevents an inspector from obtaining 15
and using evidence given to the inspector voluntarily by any 16
person. 17
`141C Powers to copy and retain documents 18
`(1) An inspector may-- 19
(a) make copies of, or take extracts from, a document given 20
to the inspector under a requirement under this Act; and 21
(b) keep that document for the period that the inspector 22
considers necessary. 23
`(2) While an inspector retains custody of a document, the 24
inspector must permit the following persons to inspect or 25
make copies of the document at all reasonable times-- 26
(a) the person who produced the document; 27
(b) the owner of the document; 28
(c) a person authorised by a person mentioned in paragraph 29
(a) or (b). 30
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`141D Power to seize evidence etc. 1
`(1) An inspector who enters a place under section 138 may-- 2
(a) seize anything (including a document) at the place if the 3
inspector reasonably believes the thing is evidence of an 4
offence against this Act; or 5
(b) take and remove for analysis, testing or examination a 6
substance or thing or a sample of any substance or thing 7
without paying for it. 8
`(2) An inspector who enters a place with a search warrant may 9
seize the evidence for which the warrant was issued. 10
`(3) An inspector may also seize anything else at the place if the 11
inspector reasonably believes-- 12
(a) the thing is evidence of an offence against this Act; and 13
(b) the seizure is necessary to prevent the thing being 14
hidden, lost or destroyed or used to continue or repeat 15
the offence. 16
`(4) Also, an inspector may seize a thing at a place the inspector 17
enters under section 138 if the inspector reasonably believes it 18
has just been used in committing an offence against this Act. 19
`141E Inspector's power to seize unsafe electrical 20
equipment at an entered place 21
`(1) This section applies if-- 22
(a) an inspector enters a place under section 138; and 23
(b) the inspector reasonably believes that-- 24
(i) persons or property at the place are at electrical 25
risk from electrical equipment at the place; and 26
(ii) it is urgent that the inspector take action to prevent, 27
remove or minimise the risk. 28
`(2) The inspector may seize the electrical equipment. 29
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`141F Inspector's power to seize other unsafe electrical 1
equipment 2
`(1) This section applies if-- 3
(a) an inspector enters a place under section 138; and 4
(b) the inspector takes electrical equipment at the place for 5
analysis, testing or examination under section 6
138B(1)(f); and 7
(c) the results of the analysis, testing or examination show 8
that the equipment is not electrically safe. 9
`(2) The inspector may seize the equipment. 10
`141G Powers supporting seizure 11
`(1) Having seized a thing, whether or not electrical equipment, an 12
inspector may-- 13
(a) move the thing from the place where it was seized (the 14
place of seizure); or 15
(b) leave the thing at the place of seizure but take reasonable 16
action to restrict access to it and, if the thing is electrical 17
equipment, to disconnect it from its supply of electricity 18
to the extent considered appropriate; or 19
Examples of restricting access to a thing-- 20
· sealing a main switch and marking it to restrict its operation 21
· disconnecting a faulty power circuit from supply 22
· sealing the entrance to a room where the seized thing is 23
situated and marking it to show access to it is restricted 24
(c) if the thing is electrical equipment--dismantle it or 25
cause it to be dismantled. 26
`(2) An inspector may direct an electricity entity to give the 27
inspector the help the inspector reasonably requires to 28
disconnect electrical equipment under subsection (1)(b). 29
`(3) An electricity entity must comply with a direction under 30
subsection (2). 31
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`(4) If an inspector restricts access to a seized thing, a person must 1
not tamper, or attempt to tamper, with the thing or something 2
restricting access to the thing without an inspector's approval. 3
Maximum penalty--100 penalty units. 4
`(5) If an inspector disconnects seized electrical equipment from 5
its supply of electricity, a person must not reconnect, or 6
attempt to reconnect, the electrical equipment to a source of 7
supply without an inspector's approval. 8
Maximum penalty--100 penalty units. 9
`(6) To enable a thing to be seized, an inspector may require the 10
person in control of it-- 11
(a) to take it to a stated reasonable place by a stated 12
reasonable time; and 13
(b) if necessary, to remain in control of it at the stated place 14
for a reasonable time. 15
`(7) The requirement-- 16
(a) must be made by notice in the approved form; or 17
(b) if it is not practicable to give the notice, may be made 18
orally and confirmed by notice in the approved form as 19
soon as practicable. 20
`(8) A further requirement may be made under this section in 21
relation to the same thing if it is necessary and reasonable to 22
make the further requirement. 23
`(9) A person of whom a requirement is made under subsection (6) 24
or (8) must comply with the requirement unless the person has 25
a reasonable excuse for not complying. 26
Maximum penalty--100 penalty units. 27
`(10) Subject to the provisions of this part providing for 28
compensation, the cost of complying with subsection (6) or 29
(8) must be borne by the person. 30
`(11) For this section, a person is in control of a thing, other than 31
electrical equipment, if the person has, or reasonably appears 32
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to an inspector to have, authority to exercise control over the 1
thing. 2
`(12) Subsection (9) places an evidential burden on the defendant to 3
show a reasonable excuse. 4
`141H Inspector may require thing's return 5
`(1) If an inspector has required a person to take a thing to a stated 6
place by a stated reasonable time under this division, the 7
inspector may require the person to return the thing to the 8
place from which it was taken. 9
`(2) A person of whom the requirement is made under subsection 10
(1) must comply with the requirement, unless the person has a 11
reasonable excuse. 12
Maximum penalty--100 penalty units. 13
`(3) Subject to the provisions of this part providing for 14
compensation, the cost of complying with subsection (1) must 15
be borne by the person. 16
`(4) Subsection (2) places an evidential burden on the defendant to 17
show a reasonable excuse. 18
`141I Receipt for seized things 19
`(1) As soon as practicable after an inspector seizes a thing at a 20
place entered under section 138, the inspector must give a 21
receipt for it to the person from whom it was seized. 22
`(2) However, if for any reason it is not practicable to comply with 23
subsection (1), the inspector must leave the receipt in a 24
conspicuous position and in a reasonably secure way at the 25
place of seizure. 26
`(3) The receipt must describe generally each thing seized and its 27
condition. 28
`(4) This section does not apply to a thing if it is impracticable or 29
would be unreasonable to give the receipt required by this 30
section (given the thing's nature, condition and value). 31
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`141J Forfeiture of seized things 1
`(1) A seized thing is forfeited to the State if the regulator-- 2
(a) can not find the person entitled to the thing after making 3
reasonable inquiries; or 4
(b) can not return it to the person entitled to it, after making 5
reasonable efforts; or 6
(c) reasonably believes it is necessary to forfeit the thing to 7
prevent it being used to commit an offence against this 8
Act. 9
`(2) Subsection (1)(a) does not require the regulator to make 10
inquiries if it would be unreasonable to make inquiries to find 11
the person entitled to the thing. 12
`(3) Subsection (1)(b) does not require the regulator to make 13
efforts if it would be unreasonable to make efforts to return 14
the thing to the person entitled to it. 15
`(4) If the regulator decides to forfeit the thing under subsection 16
(1)(c), the regulator must tell the person entitled to the thing 17
of the decision by written notice. 18
`(5) Subsection (4) does not apply if-- 19
(a) the regulator can not find the person entitled to the 20
thing, after making reasonable inquiries; or 21
(b) it is impracticable or would be unreasonable to give the 22
notice. 23
`(6) The notice must include an information notice for the 24
decision. 25
`(7) In deciding whether and, if so, what inquiries and efforts are 26
reasonable or whether it would be unreasonable to give notice 27
about a thing, regard must be had to the thing's nature, 28
condition and value. 29
`(8) Any costs reasonably incurred by the State in storing or 30
disposing of a thing forfeited under subsection (1)(c) may be 31
recovered in a court of competent jurisdiction as a debt due to 32
the State from that person. 33
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`(9) In this section person entitled to a thing means the person 1
from whom it was seized unless that person is not entitled to 2
possess it in which case it means the owner of the thing. 3
`(10) Without limiting subsection (1), if a seized thing is electrical 4
equipment, the thing is forfeited to the State if-- 5
(a) the inspector who seized the thing reasonably believes 6
the thing is not electrically safe; and 7
(b) the person entitled to the thing does not require its 8
return. 9
`141K Return of seized thing 10
`(1) If a seized thing has not been forfeited, the inspector must 11
return it to the person entitled to the thing-- 12
(a) at the end of 6 months; or 13
(b) if a proceeding for an offence involving it is started 14
within 6 months, at the end of the proceeding and any 15
appeal from the proceeding. 16
`(2) However, unless the thing has been forfeited, the inspector 17
must immediately return a thing seized as evidence to the 18
person entitled to the thing if the inspector stops being 19
satisfied its continued retention as evidence is necessary. 20
`(3) This section does not apply to a seized thing if it is 21
impracticable or would be unreasonable to return the thing 22
given the thing's nature, condition and value. 23
Example for subsection (3)-- 24
The seized thing is electrical equipment that has been destroyed or 25
extensively damaged during analysis or testing conducted under the Act. 26
`141L Returning seized electrical equipment that is not 27
electrically safe 28
`(1) This section applies if-- 29
(a) an inspector has seized electrical equipment under this 30
part; and 31
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(b) the inspector reasonably believes the equipment is not 1
electrically safe; and 2
(c) the equipment is not forfeited under section 141J. 3
`(2) If the inspector returns the equipment to the person entitled to 4
the equipment, the inspector may, by written notice, require 5
the person to do 1 or more of the following to make the 6
equipment electrically safe-- 7
(a) have the equipment repaired; 8
(b) have the equipment altered in a stated way; 9
(c) take other stated action in relation to the equipment that 10
is reasonable in the circumstances, including, for 11
example, to make it incapable of operation. 12
Note-- 13
Section 55 provides for who may perform electrical work, including 14
repair or alter electrical equipment. 15
`(3) The person must comply with the requirement unless the 16
person has a reasonable excuse for not complying. 17
Maximum penalty--40 penalty units. 18
`(4) For subsection (3), it is a reasonable excuse for the person not 19
complying with the requirement that the person destroyed the 20
equipment instead of complying with the requirement. 21
`(5) Subsection (3) places an evidential burden on the defendant to 22
show a reasonable excuse. 23
`141M Access to seized things 24
`(1) Until a seized thing is forfeited or returned, the regulator must 25
permit the following persons to inspect it and, if it is a 26
document, to make copies of it at all reasonable times-- 27
(a) the person from whom the thing was seized; 28
(b) the owner of the thing; 29
(c) a person authorised by a person mentioned in paragraph 30
(a) or (b). 31
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`(2) Subsection (1) does not apply if it is impracticable or would 1
be unreasonable to allow inspection or copying. 2
`Division 3 Damage and compensation 3
`142 Damage etc. to be minimised 4
`In the exercise, or purported exercise, of a compliance power, 5
an inspector must take all reasonable steps to ensure that the 6
inspector, and any assistant to the inspector, cause as little 7
inconvenience, detriment and damage as is practicable. 8
`142A Inspector to give notice of damage 9
`(1) This section applies if an inspector or an assistant to an 10
inspector damages a thing when exercising or purporting to 11
exercise a compliance power. 12
`(2) The inspector must, as soon as practicable, give written notice 13
of the damage to the person who the inspector believes on 14
reasonable grounds, is the person in control of the thing. 15
`(3) If the inspector believes the damage was caused by a latent 16
defect in the thing or circumstances beyond the inspector's or 17
assistant's control, the inspector may state it in the notice. 18
`(4) If, for any reason, it is impracticable to comply with 19
subsection (2), the inspector must leave the notice in a 20
conspicuous position and in a reasonably secure way where 21
the damage happened. 22
`(5) This section does not apply to damage the inspector 23
reasonably believes is trivial. 24
`142B Compensation 25
`(1) A person may claim compensation from the State if the person 26
incurs loss or expense because of the exercise or purported 27
exercise of a power under division 2. 28
`(2) Compensation may be claimed and ordered in a proceeding-- 29
(a) taken in a court of competent jurisdiction; or 30
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(b) for an offence against this Act taken against the person 1
claiming compensation. 2
`(3) The court may order compensation to be paid only if it is 3
satisfied it is just to make the order in the circumstances of the 4
particular case. 5
`(4) A regulation may prescribe matters that may, or must, be 6
taken into account by the court when considering whether it is 7
just to make the order. 8
`Division 4 Serious electrical incident or 9
dangerous electrical event 10
`143 Power to inquire into serious electrical incident or 11
dangerous electrical event 12
`(1) This section applies if an inspector becomes aware, or 13
reasonably suspects, that a serious electrical incident or 14
dangerous electrical event has happened at a place. 15
`(2) The inspector may inquire into the circumstances and 16
probable causes of the incident or event. 17
`(3) The inspector may require a person who has knowledge, or 18
whom the inspector reasonably suspects to have knowledge, 19
of the circumstances of the incident or event to give the 20
inspector reasonable help, as stated in the requirement, to 21
inquire under subsection (2). 22
`(4) A requirement under subsection (3) may be given orally or in 23
writing. 24
`(5) A person must comply with a requirement under subsection 25
(3) unless the person has a reasonable excuse for not 26
complying. 27
Maximum penalty--100 penalty units. 28
`(6) This section does not limit any other power an inspector has 29
on entering a place under section 138. 30
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`(7) Subsection (5) places an evidential burden on the defendant to 1
show a reasonable excuse. 2
`Division 5 Other matters 3
`144 Power to require name and address 4
`(1) An inspector may require a person to provide the person's 5
name and residential address if-- 6
(a) the inspector finds the person committing an offence 7
against this Act; or 8
(b) the inspector finds the person in circumstances that lead, 9
or has information that leads, the inspector to reasonably 10
suspect the person has just committed an offence against 11
this Act. 12
`(2) When asking a person to provide the person's name and 13
residential address, the inspector must-- 14
(a) tell the person the reason for the requirement to provide 15
the person's name and residential address; and 16
(b) warn the person that it is an offence to fail to state that 17
name and residential address, unless the person has a 18
reasonable excuse. 19
`(3) If the inspector reasonably believes that the name or 20
residential address is false, the inspector may require the 21
person to give evidence of its correctness. 22
`(4) A person must not, without reasonable excuse, refuse or fail to 23
comply with a requirement under subsection (1) or (3). 24
Maximum penalty--100 penalty units. 25
`(5) Subsection (4) places an evidential burden on the defendant to 26
show a reasonable excuse. 27
`(6) The person does not commit an offence against subsection (4) 28
if-- 29
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(a) the person was required to state the person's name and 1
address by an inspector who suspected the person had 2
committed an offence against this Act; and 3
(b) the person is not proved to have committed the offence. 4
`144A Inspector may take affidavits 5
`An inspector is authorised to take affidavits for any purpose 6
relating or incidental to the exercise of his or her compliance 7
powers. 8
`144B Inspector at coronial inquests 9
`Under and subject to the Coroners Act 2003, an inspector 10
may appear at and otherwise participate in any coroners 11
inquest into the cause of death of a person involving an issue 12
of electrical safety. 13
`Division 6 Offences in relation to inspectors 14
`145 Offence to hinder or obstruct inspector 15
`A person must not intentionally hinder or obstruct an 16
inspector in exercising his or her compliance powers, or 17
induce or attempt to induce any other person to do so. 18
Maximum penalty--100 penalty units. 19
`145A Offence to impersonate inspector 20
`A person who is not an inspector must not, in any way, hold 21
himself or herself out to be an inspector. 22
Maximum penalty--100 penalty units. 23
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`145B Offence to assault, threaten or intimidate inspector 1
`A person must not directly or indirectly assault, threaten or 2
intimidate, or attempt to assault, threaten or intimidate, an 3
inspector or a person helping an inspector. 4
Maximum penalty--500 penalty units or 2 years 5
imprisonment. 6
`Part 11A Enforcement measures 7
`Division 1 Improvement notices 8
`146 Issue of improvement notice 9
`(1) This section applies if an inspector reasonably believes that a 10
person-- 11
(a) is contravening a provision of this Act; or 12
(b) has contravened a provision in circumstances that make 13
it likely that the contravention will continue or be 14
repeated. 15
`(2) The inspector may issue an improvement notice requiring the 16
person to-- 17
(a) remedy the contravention; or 18
(b) prevent a likely contravention from occurring; or 19
(c) remedy the things or operations causing the 20
contravention or likely contravention. 21
`146A Contents of improvement notice 22
`(1) An improvement notice must state-- 23
(a) that the inspector believes the person-- 24
(i) is contravening a provision of this Act; or 25
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(ii) has contravened a provision in circumstances that 1
make it likely that the contravention will continue 2
or be repeated; and 3
(b) the provision the inspector believes is being, or has 4
been, contravened; and 5
(c) briefly, how the provision is being, or has been, 6
contravened; and 7
(d) the day by which the person is required to remedy the 8
contravention or likely contravention. 9
`(2) An improvement notice may include directions concerning 10
the measures to be taken to remedy the contravention or 11
prevent the likely contravention, or the matters or activities 12
causing the contravention or likely contravention, to which the 13
notice relates. 14
`(3) The day stated for compliance with the improvement notice 15
must be reasonable in all the circumstances. 16
`146B Compliance with improvement notice 17
`The person to whom an improvement notice is issued must 18
comply with the notice within the period stated in the notice. 19
Maximum penalty--500 penalty units. 20
`146C Extension of time for compliance with improvement 21
notice 22
`(1) This section applies if a person has been issued with an 23
improvement notice. 24
`(2) An inspector may, by written notice given to the person, 25
extend the compliance period for the improvement notice. 26
`(3) However, the inspector may extend the compliance period 27
only if the period has not ended. 28
`(4) In this section-- 29
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compliance period means the period stated in the 1
improvement notice under section 146A, and includes that 2
period as extended under this section. 3
`Division 2 Electrical safety protection notices 4
`147 Electrical safety protection notice 5
`(1) This section applies if an inspector reasonably believes that 6
circumstances causing, or likely to cause, an immediate 7
electrical risk to persons or property have arisen at a place. 8
`(2) The inspector may-- 9
(a) direct the person in control of any activity or electrical 10
equipment that caused, or is likely to cause, the 11
circumstances to stop the activity, or to stop using, or 12
allowing to be used, the electrical equipment; and 13
Example of direction-- 14
A direction may be given requiring a person to stop selling, 15
lending or otherwise disposing of particular electrical 16
equipment. 17
(b) disconnect electrical equipment from its supply of 18
electricity to the extent the inspector considers 19
necessary to eliminate the electrical risk. 20
`(3) An inspector may direct an electricity entity to give the 21
inspector the help the inspector reasonably requires to 22
disconnect electrical equipment under subsection (2)(b). 23
`(4) An electricity entity must comply with a direction under 24
subsection (3). 25
`(5) The direction under subsection (2)(a) may be given orally, but 26
must be confirmed by notice (electrical safety protection 27
notice) given to the person as soon as practicable. 28
`(6) The person must comply with-- 29
(a) the direction under subsection (2)(a); and 30
(b) the electrical safety protection notice. 31
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Maximum penalty--1000 penalty units. 1
`(7) Subsection (2)(a) does not apply to an activity or use of 2
electrical equipment necessary to rectify the circumstances. 3
`(8) An electrical safety protection notice must state-- 4
(a) the inspector believes that circumstances causing, or 5
likely to cause, an immediate electrical risk to persons 6
or property have arisen, or are likely to arise, at a place; 7
and 8
(b) briefly, the circumstances that have caused or are likely 9
to cause the risk; and 10
(c) if the inspector believes the circumstances involve a 11
contravention, or likely contravention, of a provision of 12
this Act--the provision contravened or likely to be 13
contravened; and 14
(d) the requirements that must be complied with before any 15
electrical equipment disconnected by the inspector from 16
its supply of electricity may be reconnected. 17
`(9) For this section, a person is in control of an activity if the 18
person has, or reasonably appears to have, authority to 19
exercise control over the activity. 20
`Division 3 Unsafe equipment notices 21
`148 Unsafe equipment notice 22
`(1) This section applies if an inspector reasonably believes that 23
electrical equipment is so defective or hazardous that it is 24
likely to cause a serious electrical incident. 25
`(2) The inspector may, by notice (unsafe equipment notice), 26
require the owner to make the electrical equipment-- 27
(a) harmless; or 28
(b) incapable of operation. 29
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`(3) The owner must comply with the unsafe equipment notice, 1
unless the owner has a reasonable excuse for not complying. 2
Maximum penalty--1000 penalty units. 3
`(4) Subsection (3) places an evidential burden on the defendant to 4
show a reasonable excuse. 5
`Division 4 Non-disturbance notices 6
`149 Issue of non-disturbance notice 7
`An inspector may issue a non-disturbance notice to the 8
person with management or control of a place if the inspector 9
reasonably believes that it is necessary to do so to facilitate the 10
exercise of his or her compliance powers. 11
`149A Contents of non-disturbance notice 12
`(1) A non-disturbance notice may require the person to-- 13
(a) preserve the site at which a serious electrical incident or 14
dangerous electrical event has happened for a stated 15
period; or 16
(b) prevent the disturbance of a particular site (including the 17
operation of plant) in other circumstances for a stated 18
period that is reasonable in the circumstances. 19
`(2) A non-disturbance notice must state the period (of no more 20
than 7 days) for which it applies and set out-- 21
(a) the duties of the person to whom the notice is issued; 22
and 23
(b) the measures to be taken to preserve a site or prevent 24
disturbance of a site; and 25
(c) the penalty for contravening the notice. 26
`(3) In subsection (1) a reference to a site includes any plant, 27
substance, structure or thing associated with the site. 28
`(4) A non-disturbance notice does not prevent any action-- 29
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(a) to assist an injured person; or 1
(b) to remove a deceased person; or 2
(c) that is essential to make the site safe or to prevent a 3
further incident; or 4
(d) that is associated with a police investigation; or 5
(e) for which an inspector has given permission. 6
`149B Compliance with non-disturbance notice 7
`(1) A person must not, without reasonable excuse, refuse or fail to 8
comply with a non-disturbance notice issued to the person. 9
Maximum penalty--500 penalty units. 10
`(2) Subsection (1) places an evidential burden on the accused to 11
show a reasonable excuse. 12
`149C Issue of subsequent notices 13
`If an inspector considers it necessary to do so, he or she may 14
issue 1 or more subsequent non-disturbance notices to a 15
person, whether before or after the expiry of the previous 16
notice, each of which must comply with section 149A. 17
`Division 5 General requirements applying to 18
notices 19
`150 Application of division 20
`In this division, notice means an improvement notice, 21
electrical safety protection notice, unsafe equipment notice or 22
non-disturbance notice. 23
`150A Notice to be in writing 24
`A notice must be in writing. 25
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`150B Directions in notice 1
`A direction included in an improvement notice or electrical 2
safety protection notice may-- 3
(a) refer to a code of practice; and 4
(b) offer the person to whom it is issued a choice of ways in 5
which to remedy the contravention. 6
`150C Recommendations in notice 7
`(1) An improvement notice or electrical safety protection notice 8
may include recommendations. 9
`(2) It is not an offence to fail to comply with recommendations in 10
a notice. 11
`150D Changes to notice by inspector 12
`(1) An inspector may make minor changes to a notice-- 13
(a) for clarification; or 14
(b) to correct errors or references; or 15
(c) to reflect changes of address or other circumstances. 16
`(2) An inspector may also, under section 146C, extend the 17
compliance period for an improvement notice. 18
`150E Regulator may vary or cancel notice 19
`Except as provided in section 150D, a notice issued by an 20
inspector may only be varied or cancelled by the regulator. 21
`150F Formal irregularities or defects in notice 22
`A notice is not invalid only because of-- 23
(a) a formal defect or irregularity in the notice unless the 24
defect or irregularity causes or is likely to cause 25
substantial injustice; or 26
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(b) a failure to use the correct name of the person to whom 1
the notice is issued if the notice sufficiently identifies 2
the person and is issued or given to the person under 3
section 150G. 4
`150G Issue and giving of notice 5
`(1) A notice may be issued or given to a person-- 6
(a) by delivering it personally to the person or sending it by 7
post or facsimile or electronic transmission to the 8
person's usual or last known place of residence or 9
business; or 10
(b) by leaving it for the person at the person's usual or last 11
known place of residence or business with a person who 12
appears to be over 16 years and who appears to reside or 13
work there; or 14
(c) by leaving it for the person at the place to which the 15
notice relates with a person who is or appears to be the 16
person with management or control of the place; or 17
(d) in a way prescribed under a regulation. 18
`(2) A regulation may prescribe-- 19
(a) the way of issuing a notice; and 20
(b) the steps a person to whom a notice is issued must take 21
to bring it to the attention of other persons. 22
`150H Display of notice 23
`(1) A person to whom a notice is issued that affects a workplace 24
must, as soon as possible, display a copy of the notice in a 25
prominent place at or near the workplace, or part of the 26
workplace, at which work is being carried out that is affected 27
by the notice. 28
Maximum penalty--50 penalty units. 29
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`(2) A person must not intentionally remove, destroy, damage or 1
deface a notice displayed under subsection (1) while the 2
notice is in force. 3
Maximum penalty--50 penalty units. 4
`Division 6 Remedial action 5
`151 When regulator may carry out action 6
`(1) This section applies if a person to whom an electrical safety 7
protection notice is issued fails to take reasonable steps to 8
comply with the notice. 9
`(2) The regulator may take any remedial action the regulator 10
believes reasonable to make the situation safe after giving 11
written notice to the person to whom the electrical safety 12
protection notice was issued of-- 13
(a) the regulator's intention to take that action; and 14
(b) the owner's or person's liability for the costs of that 15
action. 16
`151A Power of the regulator to take other remedial action 17
`(1) This section applies if the regulator reasonably believes that-- 18
(a) circumstances in which a electrical safety protection 19
notice can be issued exist; and 20
(b) an electrical safety protection notice can not be issued at 21
a place because, after taking reasonable steps, the 22
person with management or control of the place can not 23
be found. 24
`(2) The regulator may take any remedial action necessary to make 25
the place safe. 26
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`151B Costs of remedial or other action 1
`The regulator may recover the reasonable costs of any 2
remedial action taken under-- 3
(a) section 151 from the person to whom the notice is 4
issued; or 5
(b) section 151A from any person to whom the electrical 6
safety protection notice could have been issued for the 7
matter; 8
as a debt due to the regulator. 9
`Division 7 Injunctions 10
`152 Application of division 11
`In this division, notice means improvement notice electrical 12
safety protection notice or unsafe equipment notice. 13
`152A Injunctions for noncompliance with notices 14
`(1) The regulator may apply to a magistrates court for an 15
injunction-- 16
(a) compelling a person to comply with a notice; or 17
(b) restraining a person from contravening a notice. 18
`(2) The regulator may do so-- 19
(a) whether or not proceedings have been taken for an 20
offence against this Act in connection with any matter 21
for which the notice was issued; and 22
(b) whether any period for compliance with the notice has 23
expired. 24
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`Division 8 Retail entity to give information 1
`153 Provision of information by retail entity 2
`(1) A retail entity must, in the way and at the times the regulator 3
reasonably requires, give the regulator information, prescribed 4
under a regulation, the retail entity holds about-- 5
(a) premises for which, under the Electricity Act, the retail 6
entity provides customer retail services; and 7
(b) persons who, under the Electricity Act, are customers of 8
the retail entity, and who own or occupy premises 9
mentioned in paragraph (a). 10
`(2) An official may use information given to the regulator by a 11
retail entity under subsection (1) only for administering and 12
enforcing this Act. 13
`(3) In this section-- 14
official means-- 15
(a) the regulator; or 16
(b) an inspector. 17
retail entity means a retail entity under the Electricity Act.'. 18
380 Replacement of pt 12, hdg (Reviews and appeals) 19
Part 12, heading-- 20
omit, insert-- 21
`Part 12 Reviews'. 22
381 Replacement of pt 12, div 2 hdg (Reviews of decisions) 23
Part 12, division 2, heading-- 24
omit, insert-- 25
`Division 2 Internal review'. 26
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382 Amendment of s 170 (Review of decisions) 1
Section 170(6), `appeal against'-- 2
omit, insert-- 3
`apply for a review of'. 4
383 Replacement of s 171 (Stay of operation of original 5
decision) 6
Section 171-- 7
omit, insert-- 8
`171 Stay of reviewable decisions on internal review 9
`(1) An application for a review of a decision (other than a 10
decision to issue an electrical safety protection notice, an 11
unsafe equipment notice or a non-disturbance notice) under 12
this division stays the operation of the decision. 13
`(2) If an application is made under this division for a review of a 14
decision to issue an electrical safety protection notice, an 15
unsafe equipment notice or a non-disturbance notice, the 16
review entity for the review may stay the operation of the 17
decision. 18
`(3) The review entity may make the decision to stay the operation 19
of a decision on the review entity's own initiative or on the 20
application of the applicant for review. 21
`(4) The review entity must make a decision on an application for 22
a stay within 1 working day after the review entity receives 23
the application. 24
`(5) If the review entity has not made a decision to stay a decision 25
within the time set out in subsection (4), the review entity is 26
taken to have made a decision to grant a stay. 27
`(6) A stay of the operation of a decision pending a decision on a 28
review under this division continues until whichever of the 29
following is the earlier-- 30
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(a) the end of the prescribed period for applying for a 1
review of the decision under division 3; or 2
(b) an application for a review under division 3 is made.'. 3
384 Replacement of pt 12, div 3 (Appeals) 4
Part 12, division 3-- 5
omit, insert-- 6
`Division 3 External review 7
`172 Application for external review 8
`A person whose interests are affected by a disciplinary 9
decision, original regulator decision, original decision or 10
review decision may apply, as provided for under the QCAT 11
Act, for a review of the decision. 12
Note-- 13
See QCAT Act, chapter 2, part 1, divison 3 (Review jurisdiction).'. 14
385 Renumbering of pt 14 (Miscellaneous provisions) 15
Part 14-- 16
renumber as part 14A. 17
386 Replacement of pt 13, divs 2, 2A and 3 18
Part 13, divisions 2, 2A and 3-- 19
omit, insert-- 20
`Division 2 Other matters 21
`186 Prosecutions 22
`(1) Proceedings for an offence against this Act, other than a 23
category 1 offence, must be taken in a summary way under the 24
Justices Act 1886. 25
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`(2) Subject to subsection (5), proceedings for an offence against 1
this Act may only be taken by-- 2
(a) the regulator; or 3
(b) an inspector with the written authorisation of the 4
regulator, either generally or in a particular case. 5
`(3) An authorisation under subsection (1)(b) is sufficient 6
authority to continue proceedings in any case where the court 7
amends the charge, warrant or summons. 8
`(4) The regulator must issue, and publish on the regulator's 9
website, general guidelines for-- 10
(a) the prosecution of offences under this Act; and 11
(b) the acceptance of electrical safety undertakings under 12
this Act. 13
`(5) Nothing in this section affects the ability of the Director of 14
Public Prosecutions to bring proceedings for an offence 15
against this Act. 16
`186A Procedure if prosecution is not brought 17
`(1) If-- 18
(a) a person reasonably considers that an act or omission 19
constitutes a category 1 offence or a category 2 offence; 20
and 21
(b) no prosecution has been brought for the act or omission 22
after 6 months but not later than 12 months after the act 23
or omission happens; 24
the person may make a written request to the regulator that a 25
prosecution be brought. 26
`(2) Within 3 months after the regulator receives a request the 27
regulator must-- 28
(a) advise the person, in writing-- 29
(i) whether the investigation is complete; and 30
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(ii) if the investigation is complete, whether a 1
prosecution has been or will be brought or give 2
reasons why a prosecution will not be brought; and 3
(b) advise the person who the applicant believes committed 4
the offence of the application and of the matters set out 5
in paragraph (a). 6
`(3) If the regulator advises the person that a prosecution for a 7
category 1 or category 2 offence will not be brought, the 8
regulator must-- 9
(a) advise the person that the person may ask the regulator 10
to refer the matter to the Director of Public Prosecutions 11
for consideration; and 12
(b) if the person makes a written request to the regulator to 13
do so, refer the matter to the Director of Public 14
Prosecutions within 1 month of the request. 15
`(4) The Director of Public Prosecutions must consider the matter 16
and advise (in writing) the regulator within 1 month as to 17
whether the Director considers that a prosecution should be 18
brought. 19
`(5) The regulator must ensure a copy of the advice is given to-- 20
(a) the person who made the request; and 21
(b) the person who the applicant believes committed the 22
offence. 23
`(6) If the regulator declines to follow the advice of the Director of 24
Public Prosecutions to bring proceedings, the regulator must 25
give written reasons for the decision to any person to whom a 26
copy of the advice is given under subsection (5). 27
`186B Limitation period for prosecutions 28
`(1) Proceedings for an offence against this Act may be taken 29
within the latest of the following periods-- 30
(a) within 2 years after the offence first comes to the notice 31
of the regulator; 32
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(b) within 1 year after a coronial report was made or a 1
coronial inquiry or inquest ended, if it appeared from the 2
report or the proceedings at the inquiry or inquest that 3
an offence had been committed against this Act; 4
(c) if an electrical safety undertaking has been given in 5
relation to the offence, within 6 months after-- 6
(i) the electrical safety undertaking is contravened; or 7
(ii) it comes to the notice of the regulator that the 8
electrical safety undertaking has been contravened; 9
or 10
(iii) the regulator has agreed under section 54 to the 11
withdrawal of the electrical safety undertaking. 12
`(2) A proceeding for a category 1 offence may be taken after the 13
end of the applicable limitation period in subsection (1) if 14
fresh evidence relevant to the offence is discovered and the 15
court is satisfied that the evidence could not reasonably have 16
been discovered within the relevant limitation period. 17
`186C Multiple contraventions of electrical safety duty 18
provision 19
`(1) Two or more contraventions of an electrical safety duty 20
provision by a person that arise out of the same factual 21
circumstances may be charged as a single offence or as 22
separate offences. 23
`(2) This section does not authorise contraventions of 2 or more 24
electrical safety duty provisions to be charged as a single 25
offence. 26
`(3) A single penalty only may be imposed for 2 or more 27
contraventions of an electrical safety duty provision that are 28
charged as a single offence. 29
`(4) In this section electrical safety duty provision means a 30
provision of part 2, division 2. 31
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`Division 3 Sentencing for offences 1
`187 Application of this division 2
`This division applies if a court convicts a person (the 3
offender), of an offence against this Act. 4
`187A Orders generally 5
`(1) One or more orders may be made under this division against 6
the offender. 7
`(2) Orders may be made under this division in addition to any 8
penalty that may be imposed or any other action that may be 9
taken in relation to the offence. 10
`187B Adverse publicity order 11
`(1) The court may make an order (an adverse publicity order) in 12
relation to the offender requiring the offender-- 13
(a) to take either or both of the following actions within the 14
period stated in the order-- 15
(i) to publicise, in the way stated in the order, the 16
offence, its consequences, the penalty imposed and 17
any other related matter; 18
(ii) to notify a stated person or stated class of persons, 19
in the way stated in the order, of the offence, its 20
consequences, the penalty imposed and any other 21
related matter; and 22
(b) to give the regulator, within 7 days after the end of the 23
period stated in the order, evidence that the action or 24
actions were taken by the offender in accordance with 25
the order. 26
`(2) The court may make an adverse publicity order on its own 27
initiative or on the application of the person prosecuting the 28
offence. 29
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`(3) If the offender fails to give evidence to the regulator as 1
provided under subsection (1)(b), the regulator, or a person 2
authorised in writing by the regulator, may take the action or 3
actions stated in the order. 4
`(4) However, if-- 5
(a) the offender gives evidence to the regulator as provided 6
under subsection (1)(b); and 7
(b) despite that evidence, the regulator is not satisfied that 8
the offender has taken the action or actions stated in the 9
order in accordance with the order; 10
the regulator may apply to the court for an order authorising 11
the regulator, or a person authorised in writing by the 12
regulator, to take the action or actions. 13
`(5) If the regulator or a person authorised in writing by the 14
regulator takes an action or actions under subsection (3) or an 15
order under subsection (4), the regulator is entitled to recover 16
from the offender, by action in a court of competent 17
jurisdiction, an amount for the reasonable expenses of taking 18
the action or actions as a debt due to the regulator. 19
`187C Order for restoration 20
`(1) The court may order the offender to take such steps as are 21
stated in the order, within the period so stated, to remedy any 22
matter caused by the commission of the offence that appears 23
to the court to be within the offender's power to remedy. 24
`(2) The period in which an order under this section must be 25
complied with may be extended, or further extended, by order 26
of the court but only if an application for the extension is 27
made before the end of that period. 28
`187D Electrical safety project order 29
`(1) The court may make an order requiring the offender to 30
undertake a stated project for the general improvement of 31
electrical safety within the period stated in the order. 32
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`(2) The order may specify conditions that must be complied with 1
in undertaking the stated project. 2
`187E Release on the giving of a court-ordered electrical 3
safety undertaking 4
`(1) The court may (with or without recording a conviction) 5
adjourn the proceeding for a period of up to 2 years and make 6
an order for the release of the offender on the offender giving 7
an undertaking with stated conditions (a court-ordered 8
electrical safety undertaking). 9
`(2) A court-ordered electrical safety undertaking must specify the 10
following conditions-- 11
(a) that the offender appears before the court if called on to 12
do so during the period of the adjournment and, if the 13
court so specifies, at the time to which the further 14
hearing is adjourned; 15
(b) that the offender does not commit, during the period of 16
the adjournment, any offence against this Act; 17
(c) that the offender observes any special conditions 18
imposed by the court. 19
`(3) An offender who has given a court-ordered electrical safety 20
undertaking under this section may be called on to appear 21
before the court by order of the court. 22
`(4) An order under subsection (3) must be served on the offender 23
not less than four days before the time stated in it for the 24
appearance. 25
`(5) If the court is satisfied at the time to which a further hearing of 26
a proceeding is adjourned that the offender has observed the 27
conditions of the court-ordered electrical safety undertaking, 28
it must discharge the offender without any further hearing of 29
the proceeding. 30
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`187F Injunction 1
`The court may issue an injunction requiring the offender to 2
stop contravening this Act. 3
`187G Training order 4
`The court may make an order requiring the offender to 5
undertake or arrange for 1 or more workers to undertake a 6
stated course of training. 7
`187H Forfeiture on conviction 8
`(1) On the conviction of a person for an offence against this Act, 9
the court may order the forfeiture to the State of anything used 10
to commit the offence or anything else the subject of the 11
offence. 12
`(2) The court may make the order-- 13
(a) whether or not the thing has been seized under this Act; 14
and 15
(b) if the thing has been seized--whether or not the thing 16
has been returned to its owner. 17
`(3) The court may make any order to enforce the forfeiture it 18
considers appropriate. 19
`(4) This section applies to a thing only if the court is satisfied that 20
the thing caused or may cause a serious electrical incident. 21
`(5) This section does not limit the court's powers under another 22
law. 23
`187I Dealing with forfeited thing 24
`(1) On the forfeiture of a thing to the State, the thing becomes the 25
State's property and may be dealt with by the regulator as the 26
regulator considers appropriate. 27
`(2) Without limiting subsection (1), the regulator may destroy it. 28
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`187J Offence to fail to comply with order 1
`(1) A person must not, without reasonable excuse, fail to comply 2
with an order under this division. 3
Maximum penalty--500 penalty units. 4
`(2) Subsection (1) places an evidential burden on the defendant to 5
show a reasonable excuse. 6
`(3) This section does not apply to an order under section 187E or 7
187F. 8
`Division 4 Offences by bodies corporate 9
`188 Imputing conduct to body corporate 10
`(1) For this Act, any conduct engaged in on behalf of a body 11
corporate by an employee, agent or officer of the body 12
corporate acting within the actual or apparent scope of his or 13
her employment, or within his or her actual or apparent 14
authority, is conduct also engaged in by the body corporate. 15
`(2) If an offence under this Act requires proof of knowledge, 16
intention or recklessness, it is sufficient in proceedings against 17
a body corporate for the offence to prove that the person 18
mentioned in subsection (1) had the relevant knowledge, 19
intention or recklessness. 20
`(3) If for an offence against this Act mistake of fact is relevant to 21
determining liability, it is sufficient in proceedings against a 22
body corporate for the offence if the person mentioned in 23
subsection (1) made the mistake of fact. 24
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`Division 5 The State, Commonwealth and 1
other States 2
`189 Offence and the State, Commonwealth and other 3
States 4
`(1) If the State, Commonwealth or another State is found guilty of 5
an offence against this Act, the penalty to be imposed on the 6
State, Commonwealth or other State is the penalty applicable 7
to a body corporate. 8
`(2) For this Act, conduct engaged in on behalf of the State, 9
Commonwealth or another State by an employee, agent or 10
officer of the State, Commonwealth or other State acting 11
within the actual or apparent scope of his or her employment, 12
or within his or her actual or apparent authority, is conduct 13
also engaged in by the State, Commonwealth or other State. 14
`(3) If an offence under this Act requires proof of knowledge, 15
intention or recklessness, it is sufficient in proceedings against 16
the State, Commonwealth or other State for the offence to 17
prove that the person mentioned in subsection (2) had the 18
relevant knowledge, intention or recklessness. 19
`(4) If for an offence against this Act mistake of fact is relevant to 20
determining liability, it is sufficient in proceedings against the 21
State, Commonwealth or other State for the offence if the 22
person mentioned in subsection (2) made the mistake of fact. 23
`189A Officers 24
`(1) A person who makes, or participates in making, decisions that 25
affect the whole, or a substantial part, of the business or 26
undertaking of the State, Commonwealth or another State is 27
taken to be an officer of the State, Commonwealth or other 28
State for the purposes of this Act. 29
`(2) A Minister of a State or the Commonwealth is not in that 30
capacity an officer for the purposes of this Act. 31
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`189B Responsible agency for the State, Commonwealth 1
or other State 2
`(1) The following notices may be given to or served on the 3
responsible agency-- 4
(a) an improvement notice, electrical safety protection 5
notice, unsafe equipment notice or non-disturbance 6
notice to be given to or served on the State, 7
Commonwealth or another State under this Act; 8
(b) an infringement notice for an offence against this Act to 9
be given to or served on the State, Commonwealth or 10
another State. 11
`(2) If an infringement notice is to be served on the State, 12
Commonwealth or another State for an offence against this 13
Act, the responsible agency may be stated in the infringement 14
notice. 15
`(3) If proceedings are taken against the State, Commonwealth or 16
another State for an offence against this Act or in relation to a 17
contravention of this Act, the responsible agency for the 18
offence or contravention may be stated in any document 19
initiating, or relating to, the proceedings. 20
`(4) The responsible agency for an offence or a contravention of 21
this Act is entitled to act in proceedings against the State, 22
Commonwealth or other State for the offence or relating to the 23
contravention and, subject to any relevant rules of court, the 24
procedural rights and obligations of the State, Commonwealth 25
or other State as the accused or defendant in the proceedings 26
are conferred or imposed on the responsible agency. 27
`(5) The person prosecuting the offence or bringing the 28
proceedings may change the responsible agency during the 29
proceedings with the court's leave. 30
`(6) In this section, the responsible agency means-- 31
(a) for an improvement notice or infringement notice--the 32
agency of the State, Commonwealth or other State the 33
acts or omissions of which are alleged to contravene this 34
Act; or 35
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[s 386]
(b) for an electrical safety protection notice--the agency of 1
the State, Commonwealth or other State that controls the 2
place where the electrical risk has arisen; or 3
(c) for an unsafe equipment notice--the agency of the 4
State, Commonwealth or other State that owns or 5
controls the electrical equipment; or 6
(d) for a non-disturbance notice--the agency of the State, 7
Commonwealth or other State that controls the site to 8
which the notice relates; or 9
(e) for an offence or proceedings for a contravention of this 10
Act-- 11
(i) the agency of the State, Commonwealth or other 12
State the acts or omissions of which are alleged to 13
constitute the offence or contravention; or 14
(ii) if that agency no longer exists, that is the successor 15
of the agency; or 16
(iii) if that agency no longer exists and there is no clear 17
successor, that the court declares to be the 18
responsible agency. 19
`Division 6 Public authorities 20
`190 Application to public authorities that are bodies 21
corporate 22
`This division applies only to public authorities that are bodies 23
corporate or are local governments. 24
`190A Proceedings against public authorities 25
`(1) Proceedings may be taken under this Act against a public 26
authority in its own name. 27
`(2) Proceedings may be taken under this Act against a local 28
government, and a local government may be prosecuted and 29
punished, as if it were a body corporate. 30
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`(3) Nothing in this division affects any privileges that a public 1
authority may have under the State. 2
`190B Imputing conduct to public authorities 3
`(1) For this Act, any conduct engaged in on behalf of a public 4
authority by an employee, agent or officer of the public 5
authority acting within the actual or apparent scope of his or 6
her employment, or within his or her actual or apparent 7
authority, is conduct also engaged in by the public authority. 8
`(2) If an offence against this Act requires proof of knowledge, 9
intention or recklessness, it is sufficient in proceedings against 10
the public authority for that offence to prove that the person 11
mentioned in subsection (1) had the relevant, knowledge or 12
recklessness. 13
`(3) If for an offence against this Act mistake of fact is relevant to 14
determining liability, it is sufficient in proceedings against the 15
public authority for that offence if the person mentioned in 16
subsection (1) made that mistake of fact. 17
`190C Officer of public authority 18
`A person who makes, or participates in making, decisions 19
that affect the whole, or a substantial part, of the business or 20
undertaking of a public authority is taken to be an officer of 21
the public authority for the purposes of this Act. 22
`190D Proceedings against successors to public authorities 23
`(1) Proceedings for an offence against this Act that were 24
instituted against a public authority before its dissolution, or 25
that could have been instituted against a public authority if not 26
for its dissolution, may be continued or instituted against its 27
successor if the successor is a public authority. 28
`(2) An infringement notice served on a public authority for an 29
offence against this Act is taken to be an infringement notice 30
served on its successor if the successor is a public authority. 31
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`(3) Similarly, any penalty paid by a public authority for an 1
infringement notice is taken to be a penalty paid by its 2
successor if the successor is a public authority. 3
`Division 7 Civil liability not affected by this Act 4
`191 Civil liability not affected by this Act 5
`Nothing in this Act is to be construed as-- 6
(a) conferring a right of action in civil proceedings in 7
relation to a contravention of a provision of this Act; or 8
(b) conferring a defence to an action in civil proceedings or 9
otherwise affecting a right of action in civil proceedings; 10
or 11
(c) affecting the extent (if any) to which a right of action 12
arises, or civil proceedings may be taken, in relation to 13
breaches of duties or obligations imposed under a 14
regulation. 15
`Part 14 General 16
`Division 1 General provisions 17
`192 Offence to give false or misleading information 18
`(1) A person must not give information in complying or 19
purportedly complying with this Act that the person knows-- 20
(a) to be false or misleading in a material particular; or 21
(b) omits any matter or thing without which the information 22
is misleading. 23
Maximum penalty--100 penalty units. 24
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[s 386]
`(2) A person must not produce a document in complying or 1
purportedly complying with this Act that the person knows to 2
be false or misleading in a material particular without-- 3
(a) indicating how it is false or misleading and, if 4
practicable, providing correct information; or 5
(b) accompanying the document with a written statement 6
signed by the person or, in the case of a body corporate, 7
by a competent officer of the body corporate-- 8
(i) stating that the document is, to the knowledge of 9
the first-mentioned person, false or misleading in a 10
material particular; and 11
(ii) setting out, or referring to, the material particular 12
in which the document is, to the knowledge of the 13
first-mentioned person, false or misleading. 14
Maximum penalty--100 penalty units. 15
`(3) Subsection (2) places an evidential burden on the defendant to 16
show-- 17
(a) that the defendant had indicated the extent to which the 18
document was false or misleading; or 19
(b) that the accompanying document sufficiently explained 20
the extent to which the document was false or 21
misleading. 22
`192A Act does not affect legal professional privilege 23
`Nothing in this Act requires a person to produce a document 24
that would disclose information, or otherwise provide 25
information, that is the subject of legal professional privilege. 26
`192B Immunity from liability 27
`(1) An inspector, or other person engaged in the administration of 28
this Act, incurs no civil liability for an act or omission done or 29
omitted to be done in good faith and in the execution or 30
purported execution of powers and functions under this Act. 31
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[s 386]
`(2) A civil liability that would, but for subsection (1), attach to a 1
person, attaches instead to the State. 2
`193 Confidentiality of information 3
`(1) This section applies if a person obtains information or gains 4
access to a document in exercising any power or function 5
under this Act. 6
`(2) The person must not do any of the following-- 7
(a) disclose to anyone else-- 8
(i) the information; or 9
(ii) the contents of or information contained in the 10
document; 11
(b) give access to the document to anyone else; 12
(c) use the information or document for any purpose. 13
Maximum penalty--100 penalty units. 14
`(3) Subsection (2) does not apply to the disclosure of information, 15
or the giving of access to a document or the use of information 16
or a document-- 17
(a) about a person, with the person's consent; or 18
(b) that is necessary for the exercise of a power or function 19
under this Act; or 20
(c) that is made or given by the regulator or a person 21
authorised by the regulator if the regulator reasonably 22
believes the disclosure, access or use-- 23
(i) is necessary for administering, or monitoring or 24
enforcing compliance with, this Act; or 25
(ii) is necessary for the administration or enforcement 26
of another Act prescribed under a regulation; or 27
(iii) is necessary for the administration or enforcement 28
of another Act or law, if the disclosure, access or 29
use is necessary to lessen or prevent a serious risk 30
to public safety; or 31
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[s 387]
(iv) is necessary for the recognition of authorisations 1
under a corresponding law; or 2
(v) is required for the exercise of a power or function 3
under a corresponding law; or 4
(d) that is required by any court, tribunal, authority or 5
person having lawful authority to require the production 6
of documents or the answering of questions; or 7
(e) that is required or authorised under a law; or 8
(f) to a Minister. 9
`(4) A person must not intentionally disclose to another person the 10
name of an individual who has made a complaint in relation to 11
that other person unless-- 12
(a) the disclosure is made with the consent of the 13
complainant; or 14
(b) the disclosure is required under a law. 15
Maximum penalty--100 penalty units. 16
`194 No contracting out 17
`A term of any agreement or contract that purports to exclude, 18
limit or modify the operation of this Act or any duty owed 19
under this Act or to transfer to another person any duty owed 20
under this Act is void. 21
`195 Person not to levy workers 22
`A person conducting a business or undertaking must not 23
impose a levy or charge on a worker, or permit a levy or 24
charge to be imposed on a worker, for anything done, or 25
provided, in relation to electrical safety. 26
Maximum penalty--50 penalty units.'. 27
387 Replacement of ss 205-205B 28
Sections 205, 205A and 205B-- 29
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[s 388]
omit, insert-- 1
`205 Recovery of fee 2
`(1) A fee payable under this Act and not paid may be recovered 3
by the regulator-- 4
(a) in summary proceedings under the Justices Act 1886; or 5
(b) by action for a debt. 6
`(2) A fee may also be recovered in a proceeding for an offence 7
against this Act. 8
`(3) Also, an order made under subsection (2) is enforceable under 9
the Justices Act 1886 as an order for payment of money made 10
by a magistrate under that Act. 11
`(4) If an order is made under subsection (2)-- 12
(a) the order may be filed in the registry of a Magistrates 13
Court under the Magistrates Courts Act 1921; and 14
(b) on being filed, is taken to be an order made by a 15
Magistrates Court and may be enforced accordingly. 16
`205A Disciplinary action and offences 17
`The taking of disciplinary action against the holder of an 18
electrical licence does not prevent-- 19
(a) prosecution of the holder for an offence arising from the 20
facts or circumstances on which the taking of 21
disciplinary action is based; or 22
(b) a court from imposing a penalty for an offence 23
mentioned in paragraph (a) after the court takes into 24
account the disciplinary action taken.'. 25
388 Omission of s 207 (Delegation by chief executive) 26
Section 207-- 27
omit. 28
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[s 389]
389 Insertion of new pt 20 1
Before any schedule-- 2
insert-- 3
`Part 20 Transitional provisions for 4
Work Health and Safety Act 5
2011 6
`247A Definitions for pt 20 7
`In this part-- 8
amended includes-- 9
(a) repealed; and 10
(b) replaced. 11
Note-- 12
See also the Acts Interpretation Act 1954, section 36, definition amend. 13
amendment Act means the Work Health and Safety Act 2011. 14
`248 Proceedings for offence generally 15
`(1) This section applies if-- 16
(a) an offence is committed by a person against a provision 17
of this Act before the provision is amended by the 18
amendment Act; and 19
(b) the investigation or proceedings for the offence have not 20
been conducted, taken or completed before the 21
amending happens. 22
`(2) The investigation or proceedings may be conducted, taken or 23
continued as if this Act had not been amended by the 24
amendment Act. 25
`(3) However, sections 186 and 187 as applied under subsection 26
(2) apply to offence proceedings started after the amending of 27
the offence provision as if a reference to the chief executive 28
were a reference to the regulator. 29
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[s 389]
`249 Enforceable undertaking preserved 1
`(1) Subsection (2) applies to an electrical safety undertaking-- 2
(a) made under part 3 before its amendment by the 3
amending Act (the amendment); and 4
(b) in force immediately before the amendment. 5
`(2) Part 3 continues to apply in relation to the electrical safety 6
undertaking as if the amendment had not happened. 7
`(3) However, for subsection (2), sections 51, 53 and 54, as they 8
existed before the amendment, apply as if a reference to the 9
chief executive were a reference to the regulator. 10
`(4) Also, the undertaking continues in force, in relation to an act 11
or omission of the identified person happening after the 12
amendment, as if it were an undertaking accepted by the 13
regulator under section 49(1) to the extent to which the future 14
behaviour assurance is material to compliance with this Act 15
after the amendment. 16
`(5) Subsection (4) does not apply to an act or omission that 17
constitutes a category 1 offence. 18
`(6) Subsection (7) and (8) apply if, immediately before the 19
amendment, the chief executive-- 20
(a) has received an undertaking under section 49A; but 21
(b) has not made a decision whether to accept the 22
undertaking under section 50. 23
`(7) The regulator must decide whether or not to accept the 24
undertaking. 25
`(8) If the regulator accepts the undertaking, subsections (2) to (5) 26
and (9) and (11) apply to the undertaking. 27
`(9) For subsection (4), a reference-- 28
(a) in the undertaking to the alleged contravention; or 29
(b) in the future behaviour assurance to a contravention of 30
this Act as it existed before the amendment; 31
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[s 389]
is taken to include a reference to a contravention of this Act 1
that corresponds to those contraventions. 2
Note-- 3
Paragraph (a) is relevant to the continued operation of section 51 as it 4
existed before the amendment. Paragraph (b) is relevant if future 5
behaviour is expressed in terms of contraventions of particular sections. 6
`(10) Despite subsections (1) to (9), the regulator may accept an 7
electrical safety undertaking under part 3 as amended for a 8
contravention of this Act that happened before the 9
amendment. 10
`(11) In this section-- 11
future behaviour assurance is the assurance about future 12
behaviour from the identified person included in the electrical 13
safety undertaking. 14
identified person means the identified person for the 15
undertaking. 16
`250 Appointment of inspector 17
`(1) This section applies to a person who, immediately before the 18
amendment of part 10, division 1 by the amending Act, was 19
an inspector appointed under the division. 20
`(2) The person is taken to be appointed by the regulator as an 21
inspector under section 123. 22
`(3) The inspectors compliance powers continue to be subject to a 23
condition or limit imposed under section 123 before the 24
amendment. 25
`251 Improvement notice preserved 26
`(1) This section applies to an improvement notice-- 27
(a) given by an inspector under section 153 (old section 28
153) as it existed before the amendment of the section 29
by the amendment Act (the amendment) for a 30
contravention or likely contravention of a provision of 31
this Act (the notified contravention); and 32
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[s 389]
(b) in force immediately before the amendment. 1
`(2) The notice continues to be enforceable against the person to 2
whom it was given for an offence against old section 153(5) 3
that happened before the amendment as if the amendment had 4
not happened. 5
`(3) Also, the improvement notice continues in force and may be 6
enforced after the amendment as if it were an improvement 7
notice given to the person under section 146 for a 8
contravention or likely contravention of a provision of this 9
Act that is, or corresponds to, the provision to which the 10
notified contravention relates. 11
`252 Warrants and actions by inspector preserved 12
`(1) A warrant issued under part 11 before its amendment by the 13
amending Act continues to have effect for the purposes of this 14
Act. 15
`(2) A power exercised by an inspector before the amendment of 16
this Act by the amending Act-- 17
(a) continues to have lawful effect for the purposes of this 18
Act; and 19
(b) if the context permits, is taken to have been exercised 20
under a corresponding provision of this Act as amended 21
by the amendment Act. 22
`(3) However, subsection (2) does not apply to an exercise of an 23
inspector's powers to which sections 249 or 251 applies. 24
`(4) In this section-- 25
corresponding provision means a provision of this Act as 26
amended by the amendment Act that corresponds to a 27
provision under which the power mentioned in subsection (2) 28
was exercised. 29
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[s 389]
`253 Reviews and appeals 1
`(1) Part 12, as it existed before being amended by the amendment 2
Act, continues to apply to a decision made before the 3
amendment as if it had not been amended. 4
`(2) Another provision of this part that would have applied to a 5
matter if the final decision on a review or appeal under part 12 6
had been made before the part was amended applies to matter 7
as if the final decision had been made before the part was 8
amended. 9
`254 Replacement of chief executive by regulator 10
`(1) This section applies to an amendment of this Act carried out 11
by the Work Health and Safety Act 2011, schedule 4 replacing 12
in each amended provision a reference to the chief executive 13
with a reference to the regulator. 14
`(2) A decision made or action taken by the chief executive made 15
or taken before the amendment continues to have effect after 16
the amendment. 17
`(3) For subsection (2)-- 18
(a) if the context permits; and 19
(b) to give effect to the establishment of the office of 20
regulator; 21
subsections (4) and (5) apply for the operation of the amended 22
provision. 23
`(4) A reference to a decision or action made or taken under the 24
provision by the regulator includes a reference to a decision or 25
action made or taken by the chief executive before the 26
amendment (the original chief executive decision or action). 27
`(5) If-- 28
(a) any further decision or action must or may be taken in 29
relation to the original chief executive decision or 30
action; and 31
(b) that decision or action would have been taken by the 32
chief executive if the provision had not been amended; 33
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[s 390]
the decision or action must or may be taken by the regulator. 1
`(6) Sections 179, 180, 181 and 184, as they existed before being 2
amended, continue to apply to the appointment, signature and 3
certificate of the chief executive to which they applied before 4
the amendment. 5
`(7) Without limiting subsection (6), the regulator may issue a 6
certificate under section 181 or 184 as amended, even though 7
the matter certified arose before they were amended.'. 8
390 Amendment of sch 2 (Dictionary) 9
(1) Schedule 2, definitions bodily harm, electrical safety 10
obligation, electrical safety protection notice, employer, 11
executive officer, facsimile warrant, grievous bodily harm, 12
improvement notice, obligation offence provision, official 13
entity, original chief executive decision, recall order, 14
regulator, responsible person, self-employed person, 15
temporary inspector, Training and Employment Act, unsafe 16
equipment notice, warrant form, wilfully, workplace-- 17
omit. 18
(2) Schedule 2-- 19
insert-- 20
`amended, for part 20, see section 247A. 21
amendment Act, for part 20, see section 247A. 22
category 1 offence see section 40B. 23
category 2 offence see section 40C. 24
category 3 offence see section 40D. 25
code of practice means a code of practice in force under 26
section 44. 27
compliance powers means the functions and powers conferred 28
on an inspector under this Act. 29
corresponding law, other than for part 2A, means-- 30
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[s 390]
(a) a law of another State corresponding, or substantially 1
corresponding, to this Act; or 2
(b) a law of another State that is declared under a regulation 3
to be a corresponding law, whether or not the law 4
corresponds, or substantially corresponds, to this Act. 5
corresponding regulator means a person who, in relation to 6
the administration of a corresponding law, has functions 7
similar to the regulator in relation to the administration of this 8
Act. 9
design, in relation to electrical equipment or an electrical 10
installation, includes-- 11
(a) design of part of the equipment or installation; and 12
(b) redesign or modify a design. 13
electrical safety duty see section 40A. 14
electrical safety protection notice see section 147. 15
electrical safety undertaking see section 49. 16
engages in conduct means doing an act or omitting to do an 17
act. 18
improvement notice see section 146. 19
infringement notice means an infringement notice under the 20
State Penalties Enforcement Act 1999. 21
non-disturbance notice see section 149. 22
officer means-- 23
(a) an officer within the meaning of section 9 of the 24
Corporations Act 2001 of the Commonwealth other than 25
a partner in a partnership; or 26
(b) an officer of the State, Commonwealth or another State 27
within the meaning of section 189A; or 28
(c) an officer of a public authority within the meaning of 29
section 190C; 30
other than an elected member of a local government acting in 31
that capacity. 32
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[s 390]
original regulator decision for part 12, see section 167. 1
person conducting a business or undertaking see section 21. 2
public authority means-- 3
(a) an authority or body established or incorporated for a 4
public purpose by a law of the State, another State or of 5
the Commonwealth, including a body corporate 6
incorporated under a law of the State, another State or of 7
the Commonwealth in which the State, the other State or 8
the Commonwealth has a controlling interest; or 9
(b) a GOC; 10
(c) local government; or 11
(d) a statutory body under the Statutory Bodies Financial 12
Arrangements Act 1982. 13
reasonably practicable, in relation to a duty to ensure 14
electrical safety, see section 28. 15
recall order see section 40G(2). 16
regulator means-- 17
(a) for section 76(3)--see the section; or 18
(b) for part 15--see section 211; or 19
(c) otherwise--the regulator under the Work Health and 20
Safety Act 2011. 21
responsible person, in relation to a recall order, see section 22
40G(2)(a). 23
temporary inspector means a temporary inspector appointed 24
under section 126. 25
unsafe equipment notice see section 148. 26
volunteer means a person who is acting on a voluntary basis 27
(irrespective of whether the person receives out-of-pocket 28
expenses). 29
workplace means a workplace under the Work Health and 30
Safety Act 2011, section 8.'. 31
Page 308
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Part 18 Amendment of other legislation relating to safety
[s 391]
Division 3 Amendment of Electrical Safety and 1
Other Legislation Amendment Act 2
2011 3
391 Act amended 4
This division amends the Electrical Safety and Other 5
Legislation Amendment Act 2011. 6
392 Omission of s 4 (Amendment of s 26 (Obligations for 7
electrical safety)) 8
Section 4-- 9
omit. 10
393 Amendment of s 5 (Amendment of s 32 (Obligation of 11
manufacturer of electrical equipment)) 12
(1) Section 5, heading-- 13
omit, insert-- 14
`5 Amendment of s 32 (Duty of person conducting business 15
or undertaking that manufactures electrical equipment)'. 16
(2) Section 5, `after subsection (2)'-- 17
omit, insert-- 18
`after subsection (3)'. 19
394 Amendment of s 6 (Amendment of s 33 (Obligation of 20
importer of electrical equipment)) 21
(1) Section 6, heading-- 22
omit, insert-- 23
`6 Amendment of s 33 (Duty of person conducting business 24
or undertaking that imports electrical equipment)'. 25
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[s 395]
(2) Section 6, `after subsection (2)'-- 1
omit, insert-- 2
`after subsection (3)'. 3
395 Amendment of s 7 (Insertion of new s 40AA) 4
Section 7, inserted section 40AA-- 5
omit, insert-- 6
`40AA Duty of person conducting business or undertaking that 7
conducts a recognised external certification scheme 8
`(1) This section applies to a person who conducts a business or 9
undertaking-- 10
(a) that conducts a recognised external certification scheme; 11
and 12
(b) that certifies in-scope electrical equipment under the 13
scheme. 14
`(2) The person must ensure that the in-scope electrical equipment 15
to which the certification relates is electrically safe.'. 16
396 Amendment of s 8 (Insertion of new pt 2A) 17
(1) Section 8, inserted section 48A, definition responsible 18
supplier-- 19
omit, insert-- 20
`responsible supplier, of in-scope electrical equipment, 21
means-- 22
(a) a person who conducts a business or undertaking that 23
manufactures the electrical equipment in, or imports the 24
electrical equipment into, Australia; or 25
(b) if New Zealand is a participating jurisdiction, a person 26
who conducts a business or undertaking that 27
manufactures the electrical equipment in, or imports the 28
electrical equipment into, New Zealand.'. 29
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Part 18 Amendment of other legislation relating to safety
[s 396]
(2) Section 8, inserted section 48D, heading `Chief executive'-- 1
omit, insert-- 2
`Regulator'. 3
(3) Section 8, inserted section 48D(1) and (5), `chief executive'-- 4
omit, insert-- 5
`regulator'. 6
(4) Section 8, inserted section 48H, heading `Chief executive'-- 7
omit, insert-- 8
`Regulator'. 9
(5) Section 8, inserted section 48H(1) and (2), `chief executive'-- 10
omit, insert-- 11
`regulator'. 12
(6) Section 8, inserted section 48I(2), `chief executive'-- 13
omit, insert-- 14
`regulator'. 15
(7) Section 8, inserted section 48J(1), `chief executive'-- 16
omit, insert-- 17
`regulator'. 18
(8) Section 8, inserted section 48K, heading, `Chief executive'-- 19
omit, insert-- 20
`Regulator'. 21
(9) Section 8, inserted section 48K(1), (5) and (7), `chief 22
executive'-- 23
omit, insert-- 24
`regulator'. 25
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[s 397]
397 Amendment of s 10 (Insertion of new pt 14, div 1A) 1
(1) Section 10, heading, `pt 14'-- 2
omit, insert-- 3
`pt 14A'. 4
(2) Section 10, inserted section 204B(3), `chief executive'-- 5
omit, insert-- 6
`regulator'. 7
398 Amendment of s 13 (Amendment of sch 2 (Dictionary)) 8
Section 13, inserted definition corresponding law, before 9
`see'-- 10
insert-- 11
`, for part 2A'. 12
399 Amendment of s 15 (Replacement of pt 6 and insertion of 13
new pt 6A) 14
Section 15, inserted section 126, definition particular 15
electrical equipment, `, testing, maintenance, repair, 16
alteration, removal, or replacement'-- 17
omit. 18
400 Amendment of s 19 (Amendment of sch 9 (Dictionary)) 19
Section 19(1), after `nonprescribed electrical equipment'-- 20
insert-- 21
`particular electrical equipment'. 22
401 Commencement provisions 23
(1) Subsections (2) to (4) apply if the amendments of the 24
Electrical Safety Act 2002 carried out by the Electrical Safety 25
and Other Legislation Amendment Act 2011 (the ESOLAA 26
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[s 402]
amendments) mentioned in the other sections of this division 1
commence before the other sections of this division 2
commence. 3
(2) Sections 392 to 394 and 397(1) are repealed. 4
(3) References in sections 395, 396, 397(2), 398 and 399 to 5
particular inserted provisions are taken to be references to 6
those provisions as commenced in the Electrical Safety Act 7
2002 or the Electrical Safety Regulation 2002. 8
(4) Section 400 takes effect as an amendment omitting the 9
definition particular electrical equipment from the Electrical 10
Safety Regulation 2002, schedule 9. 11
(5) This section is repealed if the amendments carried out by the 12
other sections of this division commence before the ESOLAA 13
amendments. 14
(6) If subsection (5) does not apply, this section expires 15
immediately after it commences. 16
Division 4 Amendment of Penalties and 17
Sentences Act 1992 18
402 Act amended 19
This division amends the Penalties and Sentences Act 1992. 20
403 Amendment of s 5 (Meaning of penalty unit) 21
Section 5(1)-- 22
omit, insert-- 23
`(1) The value of a penalty unit is-- 24
(a) for the State Penalties Enforcement Act 1999 or an 25
infringement notice under that Act, other than an 26
infringement notice for an offence against a law 27
mentioned in paragraph (b) or (c)--$100; or 28
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[s 404]
(b) for a local law, or an infringement notice under the State 1
Penalties Enforcement Act 1999 for an offence against a 2
local law--the amount, not more than $100, prescribed 3
under a regulation; or 4
(c) for the Work Health and Safety Act 2011, the Electrical 5
Safety Act 2002 or an infringement notice under the 6
State Penalties Enforcement Act 1999 for an offence 7
against those Acts--$100; or 8
(d) in any other case, for this or another Act--$100.'. 9
Division 5 General 10
404 Amendments in sch 4 (Minor and consequential 11
amendments) 12
Schedule 4 amends the legislation mentioned in it. 13
Part 19 Amendment of Workers' 14
Compensation and 15
Rehabilitation Act 2003 16
405 Act amended 17
This part amends the Workers' Compensation and 18
Rehabilitation Act 2003. 19
406 Amendment of s 108 (Compensation entitlement) 20
(1) Section 108(3)-- 21
omit. 22
(2) Section 108-- 23
insert-- 24
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Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003
[s 407]
`Note-- 1
See also division 5 in relation to the effect of compensation on a 2
worker's leave entitlements.'. 3
407 Insertion of new ch 3, pt 2, div 5 4
Chapter 3, part 2-- 5
insert-- 6
`Division 5 Compensation and leave 7
entitlements 8
`119A Compensation entitlement does not restrict taking or 9
accrual of leave 10
`(1) This section applies to a worker who is entitled to 11
compensation, including compensation payable as weekly 12
payments. 13
`(2) The worker is entitled to take or accrue annual leave, sick 14
leave and long service leave under an Industrial Act or 15
industrial instrument during the period to which the 16
compensation relates. 17
Note-- 18
In relation to entitlements under the Fair Work Act 2009 (Cwlth), this 19
section removes the restriction under section 130(1) of that Act.'. 20
408 Insertion of new ch 14, pt 1A 21
Chapter 14-- 22
insert-- 23
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Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003
[s 408]
`Part 1A Information provisions for 1
building and construction 2
industry 3
`576A Definitions for pt 1A 4
`In this part-- 5
building and construction industry see the Building and 6
Construction Industry (Portable Long Service Leave) Act 7
1991, section 3AA. 8
construction project means a project involving construction 9
work, if the total of all costs relating directly or indirectly to 10
the construction work is at least $80 000. 11
Examples of costs relating to construction work-- 12
costs of labour, materials, plant, equipment, design, project 13
management, consultancy, prefabricated goods, commissioning, 14
installation 15
construction work means work in the building and 16
construction industry. 17
principal contractor, for a construction project, see section 18
576B. 19
relevant contractor, for a construction project, means a 20
person who has made a contract with someone else for the 21
performance of construction work, or the provision of a 22
service in the building and construction industry, for the 23
construction project. 24
`576B Who is the principal contractor for a construction 25
project 26
`(1) For this part, a person who commissions a construction 27
project is the principal contractor for the construction 28
project. 29
`(2) However, if the person mentioned in subsection (1) engages 30
another person as the principal contractor for the construction 31
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[s 408]
project and authorises the person engaged to have the 1
management and control of the construction project, the 2
person engaged is the principal contractor for the 3
construction project. 4
`(3) If 2 or more persons are the principal contractor for the 5
construction project under subsection (1) or (2), those persons 6
must perform the functions, or exercise the powers, of the 7
principal contractor by acting jointly. 8
`576C Principal contractor may require relevant contractor 9
to give document confirming insurance status 10
`(1) This section applies in relation to a relevant contractor for a 11
construction project who is an employer. 12
`(2) The principal contractor for the construction project may, by 13
written notice, ask the relevant contractor to give the principal 14
contractor a copy of the following document (the required 15
document)-- 16
(a) if the relevant contractor is a self-insurer--the relevant 17
contractor's licence to be a self-insurer; 18
(b) otherwise-- 19
(i) a certificate of currency for the relevant 20
contractor's policy of insurance required under 21
section 48; or 22
(ii) evidence of an exemption under section 49 and a 23
certificate of currency for the relevant contractor's 24
policy of insurance for the relevant contractor's 25
workers under another law. 26
`(3) The relevant contractor must, unless the relevant contractor 27
has a reasonable excuse, give the principal contractor the 28
required document within 10 business days after being given 29
the notice under subsection (2). 30
Maximum penalty--25 penalty units. 31
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[s 408]
`(4) In this section-- 1
certificate of currency, for a policy of insurance, means a 2
certificate issued by the insurer stating at least each of the 3
following-- 4
(a) the name of the policy holder; 5
(b) the policy holder's ABN or ACN; 6
(c) the policy number; 7
(d) the name of the insurer; 8
(e) the amount and type of insurance; 9
(f) the period of insurance for which the certificate is 10
issued. 11
`576D Injury data for construction projects 12
`(1) WorkCover may-- 13
(a) compile injury data for a construction project, to the 14
extent the data relates to relevant contractors for the 15
construction project who are not self-insurers; and 16
(b) give the injury data to the principal contractor for the 17
construction project. 18
`(2) The Authority may, on the request of the principal contractor 19
for the construction project, give the principal contractor 20
injury data for the construction project, to the extent the data 21
relates to relevant contractors who are self-insurers. 22
`(3) In this section-- 23
injury data, for a construction project, means the following 24
information about each relevant contractor for the 25
construction project-- 26
(a) the relevant contractor's name; 27
(b) the number and type of injuries sustained by workers on 28
the project for which applications for compensation 29
have been made under section 132; 30
(c) the date the injuries were sustained; 31
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[s 409]
(d) the address of the site at which the injuries were 1
sustained. 2
`576E Restriction on disclosure by principal contractor of 3
information obtained under this part 4
`(1) This section applies to a person who is or has been the 5
principal contractor, or a director or employee of the principal 6
contractor, for a construction project. 7
`(2) The person must not disclose any information received under 8
this part if it identifies, directly or indirectly, any person to 9
whom it relates. 10
Maximum penalty--100 penalty units.'. 11
409 Insertion of new s 584A 12
Chapter 14, part 5-- 13
insert-- 14
`584A Reviews of workers' compensation scheme 15
`(1) The Minister must ensure a review of the operation of the 16
workers' compensation scheme is completed at least once in 17
every 5 year period. 18
`(2) The Minister must prepare a report about the outcome of the 19
review and, as soon as practicable after the review is 20
completed, table the report in the Legislative Assembly. 21
`(3) The first review under this section must be completed no later 22
than 30 June 2013.'. 23
410 Amendment of sch 6 (Dictionary) 24
(1) Schedule 6-- 25
insert-- 26
`building and construction industry, for chapter 14, part 1A, 27
see section 576A. 28
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[s 410]
construction project, for chapter 14, part 1A, see section 1
576A. 2
construction work, for chapter 14, part 1A, see section 576A. 3
principal contractor, for a construction project for chapter 14, 4
part 1A, see section 576B. 5
relevant contractor, for a construction project for chapter 14, 6
part 1A, see section 576A.'. 7
(2) Schedule 6, definition Industrial Act, `, for chapter 3, part 8
1A,'-- 9
omit. 10
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Schedule 1
Schedule 1 Application of Act 1
section 12 2
Part 1 Dangerous goods and high risk 3
plant 4
1 Application to storage and handling of dangerous goods 5
(1) This Act applies to the storage and handling of dangerous 6
goods even if the dangerous goods are not at a workplace or 7
for use in carrying out work. 8
(2) For subsection (1)-- 9
(a) a reference in this Act to carrying out work includes a 10
reference to the storage or handling of dangerous goods; 11
and 12
(b) a reference in this Act to a workplace includes a 13
reference to the premises at or in which the dangerous 14
goods are stored or handled; and 15
(c) a reference in this Act to work health and safety 16
(however expressed) includes a reference to public 17
health and safety. 18
(3) This Act applies to the operation or use of high risk plant, 19
affecting public safety, even if the plant is not situated, 20
operated or used at a workplace or for use in carrying out 21
work. 22
(4) For subsection (3)-- 23
(a) a reference in this Act to carrying out work includes a 24
reference to the operation and use of high risk plant 25
affecting public safety; and 26
(b) a reference in this Act to a workplace includes a 27
reference to any high risk plant affecting public safety 28
and the premises at or in which the plant is situated or 29
used; and 30
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(c) a reference in this Act to work health and safety 1
(however expressed) includes a reference to public 2
health and safety. 3
(5) The operation of this section is subject to any exclusions or 4
modifications prescribed under a regulation. 5
(6) In this section-- 6
ADG Code means the Australian Code for the Transport of 7
Dangerous Goods by Road and Rail approved by the 8
Australian Transport Council, as in force from time to time. 9
airconditioning unit means a unit of plant that provides 10
airconditioning and that either-- 11
(a) incorporates a cooling tower; or 12
(b) consists of 1 or more compressors and the power rating 13
required for operation of the airconditioning unit is 14
50kW or more. 15
amusement device means a device-- 16
(a) used for commercial purposes; and 17
(b) used or designed to be used for amusement, games, 18
recreation, sightseeing or entertainment, and on which 19
persons may be carried, raised, lowered or supported by 20
any part of the device (including, for example, any car, 21
carriage, platform, cage, boat, plank, chair, seat or thing) 22
while the part of the device is in motion. 23
asbestos means the asbestiform varieties of mineral silicates 24
belonging to the serpentine or amphibole groups of 25
rock-forming minerals, including the following-- 26
(a) actinolite asbestos; 27
(b) grunerite (or amosite) (brown) asbestos; 28
(c) anthophyllite asbestos; 29
(d) chrysotile (white); 30
(e) crocidolite (blue); 31
(f) tremolite asbestos; 32
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(g) a mixture containing 1 or more of the minerals 1
mentioned in paragraphs (a) to (f). 2
Note-- 3
Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the 4
same mineral term for both the asbestiform and nonasbestiform 5
varieties. The word `asbestos' has been included when listing these 6
minerals to emphasise that only the asbestiform habit of these minerals 7
is regulated as asbestos. 8
cooling tower means a device for lowering the temperature of 9
water by evaporative cooling in which atmospheric air passes 10
through sprayed water exchanging heat, and includes a device 11
incorporating a refrigerant or water heat exchanger. 12
dangerous goods means-- 13
(a) asbestos; or 14
(b) anything defined under the ADG Code as-- 15
(i) dangerous goods; or 16
(ii) goods too dangerous to be transported. 17
escalator means a power driven inclined continuous stairway 18
used for raising or lowering passengers, and includes a 19
moving walkway. 20
high risk plant means the following-- 21
(a) airconditioning unit; 22
(b) amusement device; 23
(c) cooling tower; 24
(d) escalator; 25
(e) lift; 26
(f) LP gas cylinder. 27
lift means any machinery-- 28
(a) having a platform or cage the direction or movement of 29
which is restricted by a guide or guides; and 30
(b) used or designed for use for raising or lowering persons, 31
goods or materials (and includes any and all machinery, 32
supports, and enclosures) and all equipment of them 33
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Schedule 1
(whether or not detachable) used or designed for use for 1
operating a lift. 2
LP gas cylinder means a cylinder with a water capacity of 3
more than 0.1kg that contains liquefied petroleum gas under 4
pressure. 5
Part 2 Relationship with other Acts 6
Division 1 Mining safety and related matters 7
2 Relationship with mining Acts 8
(1) Subject to subsections (2) and (3), this Act does not apply 9
to-- 10
(a) a coal mine to which the Coal Mining Safety and Health 11
Act 1999 applies; or 12
(b) a mine to which the Mining and Quarrying Safety and 13
Health Act 1999 applies; or 14
(c) operating plant, within the meaning of the Petroleum 15
and Gas (Production and Safety) Act 2004, on land the 16
subject of-- 17
(i) a 1923 Act petroleum tenure under the Petroleum 18
Act 1923; or 19
(ii) a petroleum authority under the Petroleum and Gas 20
(Production and Safety) Act 2004; or 21
(iii) a GHG authority under the Greenhouse Gas 22
Storage Act 2009; or 23
(d) a facility or plant used for geothermal exploration, 24
within the meaning of the Geothermal Exploration Act 25
2004, section 132A(1), if the facility or plant is used for 26
drilling or drilling related purposes. 27
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(2) A regulation under this Act applying in relation to a hazardous 1
chemical applies in relation to the hazardous chemical even 2
though it is at a mine, plant or facility mentioned in subsection 3
(1). 4
(3) A regulation under this Act applying in relation to a major 5
hazard facility applies in relation to the major hazard facility 6
even though it is, or is at, a mine, plant or facility mentioned 7
in subsection (1). 8
(4) In this section-- 9
hazardous chemical means a hazardous chemical under a 10
regulation. 11
major hazard facility means a major hazard facility under a 12
regulation. 13
3 Relationship with other Acts relating to design or 14
manufacture of operating plant 15
(1) This section applies if-- 16
(a) this Act, in the absence of this section, would have 17
application to a matter, relating to the design or 18
construction of proposed operating plant, that impacts 19
on the integrity or safe use of the plant; and 20
(b) a relevant Act also has application to the matter. 21
(2) This Act does not have application to the matter to the extent 22
that the relevant Act has application to the matter. 23
(3) In this section-- 24
operating plant, for application of a relevant Act to a matter, 25
means-- 26
(a) for the Petroleum and Gas (Production and Safety) Act 27
2004--operating plant within the meaning of that Act; 28
or 29
(b) for the Geothermal Exploration Act 2004--a facility or 30
plant used for geothermal exploration, within the 31
meaning of section 132A(1) of that Act. 32
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relevant Act means-- 1
(a) the Geothermal Exploration Act 2004; or 2
(b) the Petroleum and Gas (Production and Safety) Act 3
2004. 4
Division 2 Electrical safety 5
4 Relationship with Electrical Safety Act 2002 6
(1) This section applies if-- 7
(a) this Act, in the absence of this section, would have 8
application in particular circumstances; and 9
(b) the Electrical Safety Act 2002 also has application in the 10
circumstances. 11
(2) This Act does not have application in the circumstances to the 12
extent that the Electrical Safety Act 2002 has application. 13
Example for subsection (2)-- 14
Section 19(1) of this Act provides, among other matters, for 15
circumstances in which a duty is imposed on a person who conducts a 16
business or undertaking to ensure, so far as reasonably practicable, the 17
health and safety of workers mentioned in the section while the workers 18
are at work in the business or undertaking. 19
The Electrical Safety Act 2002, section 30(1), provides for 20
circumstances (the electrical safety circumstances) in which a duty is 21
imposed on that person to ensure the person's business or undertaking is 22
conducted in a way that is electrically safe. 23
Accordingly, the duty under section 19(1) of this Act to the extent it is 24
mentioned above, that apart from this section would apply to the 25
electrical safety circumstances, does not include a duty to ensure the 26
person's business or undertaking is conducted in a way that is 27
electrically safe. 28
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Division 3 Transport rail safety 1
5 Relationship with Transport (Rail Safety) Act 2010 2
(1) This section applies if-- 3
(a) this Act, in the absence of this section, would have 4
application in particular circumstances; and 5
(b) the Transport (Rail Safety) Act 2010, part 3, division 2 6
also has application in the circumstances. 7
(2) This Act does not have application in the circumstances to the 8
extent that the Transport (Rail Safety) Act 2010, part 3, 9
division 2 has application. 10
Note-- 11
See the Transport (Rail Safety) Act 2010, part 2 for an explanation of the 12
operation of that Act and this Act in circumstances in which both that 13
Act and this Act apply. 14
Example for subsection (2)-- 15
Section 19(1) of this Act provides, among other matters, for 16
circumstances in which a duty is imposed on a person who conducts a 17
business or undertaking to ensure, so far as reasonably practicable, the 18
health and safety of workers mentioned in the section while the workers 19
are at work in the business or undertaking. 20
The Transport (Rail Safety) Act 2010, part 3, division 2, also provides 21
for circumstances (the rail safety circumstances) in which a duty is 22
imposed on a rail transport operator to ensure, so far as is reasonably 23
practicable, that rail safety is not affected by the carrying out of the 24
operator's prescribed railway operations. 25
Accordingly, the duty under section 19(1) of this Act to the extent it is 26
mentioned above, that apart from this section, would apply to the rail 27
safety circumstances, does not include a duty to ensure, so far as is 28
reasonably practicable, that rail safety is not affected by the carrying out 29
of the operator's prescribed railway operations. 30
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Division 4 Other legislation 1
6 Generally 2
(1) Subject to divisions 1 to 3, a person on whom a health and 3
safety duty is imposed must discharge the duty even though 4
another Act may prescribe a lesser duty in the same 5
circumstances. 6
(2) This Act does not limit the following Acts-- 7
(a) the Explosives Act 1999 8
(b) the Public Safety Preservation Act 1986 9
(c) the Radiation Safety Act 1999 10
(d) the Transport Operations (Marine Safety) Act 1994 11
(e) the Transport Operations (Road Use Management) Act 12
1995 13
(3) Subject to subsection (1), to the extent to which an Act 14
mentioned in subsection (2) is inconsistent with this Act, that 15
Act prevails. 16
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Schedule 2 The regulator and local 1
tripartite consultation 2
arrangements and other local 3
arrangements 4
Part 1 The regulator 5
1 Appointment of regulator 6
(1) The Governor in Council may appoint a public service officer 7
as the regulator. 8
(2) The regulator is appointed under the Public Service Act 2008 9
and may hold the office in conjunction with his or her other 10
public service office. 11
(3) The regulator must act independently when making a decision 12
under this Act but otherwise is subject to direction in the 13
person's capacity as a public service officer and an officer of 14
the department. 15
Part 2 Industry consultative 16
arrangements 17
Division 1 Purposes of part 18
2 Purposes of part 19
The purposes of this part are-- 20
(a) to establish the work health and safety board; and 21
(b) to provide for the establishment of industry sector 22
standing committees of the board. 23
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Division 2 The board and its functions 1
3 Work health and safety board 2
The work health and safety board (the board) is established. 3
4 Functions of board 4
(1) The primary function of the board is to give advice and make 5
recommendations to the Minister about policies, strategies, 6
allocation of resources, and legislative arrangements, for work 7
health and safety. 8
(2) Without limiting subsection (1), the board may discharge its 9
primary function by-- 10
(a) developing a 5 year strategic plan for improving work 11
health and safety; and 12
(b) examining whether the 5 year strategic plan meets the 13
existing and future needs of industry and the 14
community; and 15
(c) advising the Minister about state, national and 16
international work health and safety issues; and 17
(d) considering other issues referred to it by the Minister; 18
and 19
(e) reviewing the appropriateness of provisions of this Act, 20
a regulation, or code of practice; and 21
(f) considering recommendations made to it by an industry 22
sector standing committee; and 23
(g) reviewing the performance of an industry sector 24
standing committee; and 25
(h) recommending to the Minister the establishment of 26
industry sector standing committees; and 27
(i) reviewing the membership of an industry sector 28
standing committee; and 29
(j) establishing working parties on the recommendation of 30
an industry sector standing committee; and 31
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(k) deciding procedures for the operation of working 1
parties; and 2
(l) appointing members to a working party; and 3
(m) considering the most effective and efficient way of 4
applying funds allocated for work health and safety; and 5
(n) ensuring industry has been adequately consulted on 6
proposed codes of practice; and 7
(o) promoting work health and safety to industry and the 8
community to encourage a healthy and safe culture at 9
workplaces. 10
(3) The regulator must give the board reasonable help to enable it 11
to perform its functions. 12
5 Annual report 13
(1) As soon as practical, but within 4 months, after the end of 14
each financial year, the board must prepare and give to the 15
Minister a report on the board's operations for the year. 16
(2) The Minister must table a copy of the report in the Legislative 17
Assembly within 14 sitting days after receiving it. 18
Division 3 Membership and conduct of board 19
proceedings 20
6 Membership of board 21
(1) The board consists of a chairperson, and at least 6 other 22
members, appointed by the Minister. 23
(2) The person the Minister appoints as chairperson must be 24
representative of industry. 25
(3) In appointing a person as a member, the Minister must 26
consider the person's practical experience, and competence, 27
in the management of work health and safety. 28
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(4) The Minister must ensure the number of members 1
representing employers equals the number of members 2
representing workers. 3
(5) The Minister must seek to appoint both men and women 4
members to the board. 5
7 Times of board meetings 6
(1) The board may hold its meetings when it decides. 7
(2) However, the board must meet at least 4 times a year. 8
(3) The chairperson of the board-- 9
(a) may call a meeting of the board at any time; and 10
(b) must call a meeting if asked by at least a third of the 11
other members. 12
(4) Also, the Minister may call a meeting of the board at any time. 13
8 Conduct of proceedings 14
(1) The chairperson of the board presides at all board meetings at 15
which the chairperson is present. 16
(2) If the chairperson is absent, the member chosen by the 17
members present is to preside. 18
(3) At a meeting of the board-- 19
(a) a quorum is at least 4 members; and 20
(b) a question is decided by a majority of the votes of the 21
members present and voting; and 22
(c) each member present has a vote on each question to be 23
decided and, if the votes are equal, the member 24
presiding has a casting vote. 25
(4) The board may otherwise conduct its proceedings (including 26
its meetings) as it considers appropriate. 27
(5) The board may hold meetings, or permit members to take part 28
in meetings, by telephone, closed-circuit television or another 29
form of communication. 30
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(6) A member who takes part in a board meeting under a 1
permission under subsection (5) is taken to be present at the 2
meeting. 3
(7) A resolution is a valid resolution of the board, even though it 4
is not passed at a board meeting, if-- 5
(a) at least half the members give written agreement to the 6
resolution; and 7
(b) notice of the resolution is given under procedures 8
approved by the board. 9
9 Disclosure of interests 10
(1) If a member reasonably believes, or should reasonably 11
believe, that an issue being considered or about to be 12
considered by the board may give the member, or an entity 13
associated with the member, a possible professional or 14
commercial advantage, the member must disclose the possible 15
advantage to the board. 16
(2) The disclosure must be recorded in the board's minutes and, 17
unless the board otherwise directs, the member must not be 18
present when the board considers the issue, or take part in a 19
decision of the board on the issue. 20
(3) If, because of this section, a member is not present at a 21
meeting of the board for the deliberation of the board about an 22
issue, but there would be a quorum if the member were 23
present, the remaining members present are a quorum for the 24
board's deliberation or decision about the issue at the 25
meeting. 26
(4) For this section, an entity is associated with a member if the 27
member is an employee or member of, or an adviser to, the 28
entity. 29
10 Minutes 30
The board must keep minutes of its proceedings. 31
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Division 4 Provisions about appointed board 1
members 2
11 Duration of appointment 3
(1) The appointment of a member is for the term, not longer than 4
3 years, decided by the Minister. 5
(2) The office of a member becomes vacant if-- 6
(a) the member resigns by signed notice of resignation 7
given to the Minister; or 8
(b) the member is found guilty of an indictable offence or 9
an offence against this Act; or 10
(c) the member is absent, without the Minister's leave and 11
without reasonable excuse, from 3 consecutive ordinary 12
meetings of the board; or 13
(d) the member's appointment is ended by the Minister 14
under subsection (3). 15
(3) The Minister may, at any time, end the appointment of a 16
member for any reason or none. 17
12 Leave of absence 18
(1) The Minister may approve a leave of absence for a member. 19
(2) If a leave of absence is approved, the Minister may appoint 20
someone else as an acting member during the member's 21
approved leave of absence. 22
13 Conditions of appointment 23
(1) A member is appointed on a part-time basis. 24
(2) A member is entitled to be paid the remuneration and 25
allowances fixed by the Minister. 26
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Division 5 Industry sector standing 1
committees 2
14 Industry sector standing committees 3
(1) The following industry sector standing committees of the 4
board are established-- 5
(a) construction sector standing committee; 6
(b) manufacturing sector standing committee; 7
(c) rural sector standing committee; 8
(d) health and community services sector standing 9
committee; 10
(e) retail and wholesale sector standing committee; 11
(f) transport and storage sector standing committee. 12
(2) Also, the Minister may, by gazette notice, establish other 13
industry sector standing committees for industry sectors. 14
15 Functions of industry sector standing committees 15
(1) The primary function of an industry sector standing 16
committee is to give advice and make recommendations to the 17
work health and safety board about work health and safety in 18
the industry sector for which the committee is established. 19
(2) Without limiting subsection (1), the committee may discharge 20
its primary function by-- 21
(a) examining the appropriateness of, and need for, setting 22
work health and safety standards; and 23
(b) considering issues referred to it by the board; and 24
(c) recommending to the board that working parties be 25
established to respond to work health and safety issues; 26
and 27
Examples of responses under paragraph (c)-- 28
1 developing a code of practice 29
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2 organising a workplace health and safety promotional 1
program 2
(d) recommending to the board who should be a member of 3
a working party; and 4
(e) recommending to the board procedures for the operation 5
of working parties. 6
Division 6 Membership and conduct of 7
industry sector standing committee 8
proceedings 9
16 Membership of industry sector standing committee 10
(1) An industry sector standing committee consists of a 11
chairperson, and at least 6 other members, appointed by the 12
Minister. 13
(2) In appointing a person as a member, the Minister must 14
consider the person's practical experience, and competence, 15
in the management of work health and safety. 16
(3) The Minister must ensure the number of members 17
representing employers equals the number of members 18
representing workers. 19
(4) The Minister must seek to appoint both men and women 20
members to the committee. 21
17 Times of industry sector standing committee meetings 22
(1) An industry sector standing committee may hold its meetings 23
when it decides. 24
(2) However, the committee must meet at least 4 times a year. 25
(3) The chairperson of the committee-- 26
(a) may call a meeting of the committee at any time; and 27
(b) must call a meeting if asked by at least a third of the 28
other members. 29
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(4) Also, the Minister or the board may call a meeting of the 1
committee at any time. 2
18 Conduct of industry sector standing committee 3
proceedings 4
(1) The chairperson of an industry sector standing committee 5
presides at all meetings of the committee at which the 6
chairperson is present. 7
(2) If the chairperson is absent, the member chosen by the 8
members present is to preside. 9
(3) At a meeting of the committee-- 10
(a) a quorum is at least half the members; and 11
(b) a question is decided by a majority of the votes of the 12
members present and voting; and 13
(c) each member present has a vote on each question to be 14
decided and, if the votes are equal, the member 15
presiding has a casting vote. 16
(4) An industry sector standing committee may otherwise 17
conduct its proceedings (including its meetings) as it 18
considers appropriate. 19
(5) An industry sector standing committee may hold meetings, or 20
permit members to take part in meetings, by telephone, 21
closed-circuit television or another form of communication. 22
(6) A member who takes part in an industry sector standing 23
committee meeting under a permission under subsection (5) is 24
taken to be present at the meeting. 25
(7) A resolution is a valid resolution of an industry sector 26
standing committee, even though it is not passed at an 27
industry sector standing committee meeting, if-- 28
(a) at least half the members give written agreement to the 29
resolution; and 30
(b) notice of the resolution is given under procedures 31
approved by the industry sector standing committee. 32
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19 Disclosure of interests 1
(1) If a member reasonably believes, or should reasonably 2
believe, that an issue being considered or about to be 3
considered by the industry sector standing committee may 4
give the member, or an entity associated with the member, a 5
possible professional or commercial advantage, the member 6
must disclose the possible advantage to the committee. 7
(2) The disclosure must be recorded in the industry sector 8
standing committee's minutes and, unless the committee 9
otherwise directs, the member must not be present when the 10
committee considers the issue, or take part in a decision of the 11
committee on the issue. 12
(3) If, because of this section, a member is not present at a 13
meeting of the industry sector standing committee for the 14
deliberation of the committee about an issue, but there would 15
be a quorum if the member were present, the remaining 16
members present are a quorum for the committee's 17
deliberation or decision about the issue at the meeting. 18
(4) For this section, an entity is associated with a member if the 19
member is an employee or member of, or an adviser to, the 20
entity. 21
20 Minutes 22
An industry sector standing committee must keep minutes of 23
its proceedings. 24
Division 7 Provisions about industry sector 25
standing committee members 26
21 Duration of appointment 27
(1) The appointment of a member is for the term, not longer than 28
3 years, decided by the Minister. 29
(2) The office of a member becomes vacant if-- 30
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(a) the member resigns by signed notice of resignation 1
given to the Minister; or 2
(b) the member is found guilty of an indictable offence or 3
an offence against this Act; or 4
(c) the member is absent, without the Minister's leave and 5
without reasonable excuse, from 3 consecutive ordinary 6
meetings of the committee; or 7
(d) the member's appointment is ended by the Minister 8
under subsection (3). 9
(3) The Minister may, at any time, end the appointment of a 10
member for any reason or none. 11
22 Leave of absence 12
(1) The Minister may approve a leave of absence for a member. 13
(2) If a leave of absence is approved, the Minister may appoint 14
someone else as an acting member during the member's 15
approved leave of absence. 16
(3) The Minister must have regard to the committee's 17
membership requirements under section 57 when appointing 18
someone as an acting member. 19
23 Conditions of appointment 20
(1) A member is appointed on a part-time basis. 21
(2) A member is entitled to be paid the remuneration and 22
allowances fixed by the Minister. 23
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Part 3 Self-insurance report 1
24 Application for report relating to workers' compensation 2
self-insurance 3
(1) The Workers' Compensation Regulatory Authority must 4
apply to the regulator for a report about the occupational 5
health and safety performance of an employer or a group 6
employer for the purpose of an application or renewal for 7
self-insurance under the Workers' Compensation and 8
Rehabilitation Act 2003. 9
(2) The employer or group employer must pay the fee calculated 10
under a regulation for the preparation of the report. 11
(3) The regulator must-- 12
(a) prepare the report having regard to the occupational 13
health and safety performance standards published by 14
the regulator; and 15
(b) give the report to the Authority within 3 months after 16
receiving the application for the report. 17
(4) In this section-- 18
employer see the Workers' Compensation and Rehabilitation 19
Act 2003, section 30. 20
group employer see the Workers' Compensation and 21
Rehabilitation Act 2003, schedule 6. 22
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Schedule 2A Reviewable decisions 1
section 223 2
Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
1 Section 54(2) (1) A worker whose interests commission
are affected by the
decision following decision or his or her
failure to commence representative appointed
negotiations for the purpose of section
52(1)(b).
(2) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(3) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
2 Section 72(6) (1) A person conducting a commission
business or undertaking
decision in relation whose interests are
to training health affected by the decision.
and safety
representative (2) A health and safety
representative whose
interests are affected by
the decision.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
3 Section 76(6) (1) A worker whose interests commission
are affected by the
decision relating to decision.
health and safety
committee (2) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(3) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
4 Section 102 (1) The person to whom the QCAT
provisional improvement
decision on review notice was issued.
of provisional
improvement notice (2) The health and safety
representative who issued
the provisional
improvement notice.
(3) A worker whose interests
are affected by the
decision.
(4) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
(5) A person conducting a
business or undertaking
whose interests are
affected by the decision.
5 Section 179 The person entitled to the QCAT
thing.
forfeiture of thing
6 Section 180 The person entitled to the QCAT
thing.
return of seized
things
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
7 Section 191 (1) The person to whom the QCAT
notice was issued.
issue of
improvement (2) A person conducting a
notice business or undertaking
whose interests are
affected by the decision.
(3) A worker whose interests
are affected by the
decision.
(4) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
8 Section 194 (1) The person to whom the QCAT
notice was issued.
extension of time for
compliance with (2) A person conducting a
improvement notice business or undertaking
whose interests are
affected by the decision.
(3) A worker whose interests
are affected by the
decision.
(4) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
9 Section 195 (1) The person to whom the QCAT
notice was issued.
issue of prohibition
notice (2) The person with
management or control of
the workplace, plant or
substance.
(3) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(4) A worker whose interests
are affected by the
decision.
(5) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
(6) A health and safety
representative who gave a
direction under section
85 to cease work, that is
relevant to the prohibition
notice.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
10 Section 198 (1) The person to whom the QCAT
notice was issued.
issue of a
non-disturbance (2) The person with
notice management or control of
the workplace.
(3) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(4) A worker whose interests
are affected by the
decision.
(5) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
11 Section 201 (1) The person to whom the QCAT
notice was issued.
issue of subsequent
notice (2) The person with
management or control of
the workplace.
(3) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(4) A worker whose interests
are affected by the
decision.
(5) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
12 Section 207 (1) The person to whom the QCAT
notice was issued.
decision of regulator
to vary or cancel (2) The person with
notice management or control of
the workplace.
(3) A person conducting a
business or undertaking
whose interests are
affected by the decision.
(4) A worker whose interests
are affected by the
decision.
(5) A health and safety
representative who
represents a worker
whose interests are
affected by the decision.
(6) In the case of a
prohibition notice, a
health and safety
representative whose
direction under section
85 to cease work gave
rise to the notice.
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Item Provision under Eligible person in relation to External
which reviewable reviewable decision review body
decision is made
13 A provision A person prescribed under a QCAT or
prescribed under a regulation as eligible to apply the
regulation for review of the reviewable commission
decision. as
prescribed
under a
regulation
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Schedule 3 Regulation-making powers 1
section 276(2) 2
1 Duties 3
(1) Matters relating to the way in which duties imposed by this 4
Act are to be performed. 5
(2) Matters relating to the regulation or prohibition of stated 6
activities or a stated class of activities-- 7
(a) at workplaces or a stated class of workplaces; or 8
(b) by a stated class of persons on whom duties or 9
obligations are imposed by this Act; 10
to eliminate or minimise risks to health and safety. 11
(3) Imposing duties on persons in relation to any matter provided 12
for under a regulation. 13
2 Incidents 14
Matters relating to incidents at workplaces including-- 15
(a) regulating or requiring the taking of any action to avoid 16
an incident at a workplace or in the course of conducting 17
a business or undertaking; and 18
(b) regulating, requiring or prohibiting the taking of any 19
action in the event of an incident at a workplace or in the 20
conduct of a business or undertaking. 21
3 Plant, substances or structures 22
Matters relating to plant, substances or structures, including-- 23
(a) regulating the storage and handling of plant, substances 24
and structures; and 25
(b) regulating or requiring-- 26
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Schedule 3
(i) the examination, testing, labelling, maintenance or 1
repair of plant and structures; or 2
(ii) the examination, testing, analysis or labelling of 3
any substance. 4
4 Protection and welfare of workers 5
Matters relating to the protection and welfare of workers 6
including-- 7
(a) regulating or requiring the provision and use of 8
protective clothing or equipment, or rescue equipment, 9
in stated circumstances; and 10
(b) regulating or requiring the provision of stated facilities 11
for the welfare of workers at the workplace; and 12
(c) matters relating to health and safety in relation to 13
accommodation provided to workers. 14
5 Hazards and risks 15
Matters relating to hazards and risks including-- 16
(a) the prescribing of standards relating to the use of or 17
exposure to any physical, biological, chemical or 18
psychological hazard; and 19
(b) matters relating to safety cases, safety management 20
plans and safety management systems, however 21
described; and 22
(c) matters relating to measures to control risks. 23
6 Records and notices 24
(1) The keeping and availability of records of health and safety 25
representatives and deputy health and safety representatives. 26
(2) The keeping of records in relation to incidents. 27
(3) The keeping of records of stated activities, matters or things to 28
be kept by stated persons. 29
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Schedule 3
(4) The giving of notice of or information about stated activities, 1
matters or things to the regulator, an inspector or other stated 2
person. 3
7 Authorisations 4
(1) Matters relating to authorisations (including licences, 5
registrations and permits) and qualifications, and experience 6
for the purposes of part 4 or a regulation including providing 7
for-- 8
(a) applications for the grant, issue, renewal, variation, 9
suspension and cancellation of authorisations, including 10
the minimum age to be eligible for an authorisation; and 11
(b) the evidence and information to be provided in relation 12
to applications including the provision of statutory 13
declarations; and 14
(c) exemptions; and 15
(d) variations of authorisations by the regulator whether on 16
application or otherwise; and 17
(e) authorisation of persons as trainers and assessors; and 18
(f) examination of applicants for authorisations; and 19
(g) conditions of authorisations; and 20
(h) fees for applications for the grant, issue, renewal and 21
variation of authorisations. 22
(2) The recognition of authorisations under corresponding laws 23
and exceptions to recognition. 24
(3) The sharing of information with corresponding regulators 25
relating to the grant, issue, renewal, variation, suspension or 26
cancellation of authorisations. 27
8 Work groups 28
Matters relating to work groups and variation of work groups 29
and agreements or variations of agreements relating to the 30
determination of work groups. 31
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Schedule 3
9 Health and safety committees and health and safety 1
representatives 2
Matters relating to health and safety committees and health 3
and safety representatives. 4
10 Issue resolution 5
Matters relating to issue resolution including-- 6
(a) the minimum requirements for an agreed procedure for 7
resolving an issue; and 8
(b) the requirements for a default issue resolution procedure 9
where there is no agreed procedure. 10
11 WHS entry permits 11
Matters relating to WHS entry permits, including providing 12
for-- 13
(a) eligibility for WHS entry permits; and 14
(b) procedures for applications for WHS entry permits and 15
objections to applications for WHS entry permits; and 16
(c) conditions of WHS entry permits; and 17
(d) the form of WHS entry permits; and 18
(e) requirements for training; and 19
(f) records of WHS entry permits. 20
12 Identity cards 21
Matters relating to identity cards. 22
13 Forfeiture 23
Matters relating to-- 24
(a) costs of forfeiture and disposal of forfeited things; and 25
(b) disposal of seized things and forfeited things. 26
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14 Review of decisions 1
Matters relating to the review of decisions under a regulation 2
including-- 3
(a) prescribing decisions as reviewable decisions for the 4
purposes of part 12 or for the purposes of a regulation; 5
and 6
(b) prescribing procedures for internal and external review 7
of decisions under a regulation; and 8
(c) conferring jurisdiction on a court, the commission or 9
QCAT to conduct reviews under a regulation. 10
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Schedule 4 Minor and consequential 1
amendments 2
section 404 3
Part 1 Particular legislation 4
Electrical Safety Act 2002 5
1 Replacement of general reference to chief executive 6
(1) In each of the following provisions, omit the words `chief 7
executive' insert the word `regulator'-- 8
· section 40J(1)(b)(iv) (as renumbered) 9
· section 57A, heading, (1) and (2) 10
· section 57B(1), (2), (3) and (4) 11
· section 58, definition electrical licence application 12
· section 59 (1), (3) and (4) 13
· section 60(1), (3), (4) and (6) 14
· section 61(1), (3) and (4) 15
· section 62(1) and (2) 16
· section 64(1) and (2) 17
· section 64A(1) and (2) 18
· section 66, definition safety management system, 19
paragraph (e)(ii) 20
· section 76(4) 21
· section 82(2) 22
· section 88(1)(c), (2)(f) and (3) 23
· section 91(3) 24
· section 94(4) 25
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Schedule 4
· section 109, heading, (1) and (3) 1
· section 111, heading 2
· section 129(1) and (2) 3
· section 130(3) 4
· section 131(1) 5
· section 134 6
· section 135(1) 7
· section 136 8
· section 136A(1), (2) and (4) 9
· section 167, definitions decision, original chief 10
executive decision (including the defined term), original 11
decision, review entity 12
· section 170(2) and (3) 13
· section 179(a) and (b) 14
· section 180 15
· section 181(5) 16
· section 184 17
· section 201 18
· section 202(1), (3) and (4) 19
· section 204 20
· section 206(1), (2) and (3) 21
· section 208 22
· section 209(1) (2) and (3) 23
· section 210(2)(l)(v) 24
· section 223(2) 25
· schedule 2, definition approved form 26
(2) Sections 64, 64A and 136A, heading, `Chief executive'-- 27
omit, insert-- 28
`Regulator'. 29
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Schedule 4
2 Section 9-- 1
omit. 2
Electrical Safety Regulation 2002 3
1 Schedule 9, definition WHS Act, `Workplace Health and 4
Safety Act 1995'-- 5
omit, insert-- 6
`Work Health and Safety Act 2011'. 7
Environmental Protection Act 1994 8
1 Schedule 1, section 3(d), `Workplace Health and Safety 9
Act 1995, section 9'-- 10
omit, insert-- 11
`Work Health and Safety Act 2011, section 8'. 12
Environmental Protection (Air) Policy 2008 13
1 Section 8(6), definition workplace, `Workplace Health and 14
Safety Act 1995, section 9'-- 15
omit, insert-- 16
`Work Health and Safety Act 2011, section 8'. 17
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Schedule 4
Environmental Protection (Noise) Policy 2008 1
1 Section 8(5), definition workplace, `Workplace Health and 2
Safety Act 1995, section 9'-- 3
omit, insert-- 4
`Work Health and Safety Act 2011, section 8'. 5
Fire and Rescue Service Act 1990 6
1 Sections 95(2), 137(4) and schedule 5, item 8, `Workplace 7
Health and Safety Act 1995'-- 8
omit, insert-- 9
`Work Health and Safety Act 2011'. 10
2 Schedule 6, definition flammable and combustible liquids 11
standard-- 12
omit, insert-- 13
`flammable and combustible liquids standard means-- 14
(a) if a standard is prescribed under a regulation under the 15
Work Health and Safety Act 2011--that standard; or 16
(b) otherwise--AS 1940.'. 17
3 Schedule 6-- 18
insert-- 19
`AS 1940 means Australian Standard AS 1940 The Storage 20
and Handling of Flammable and Combustible Liquids made 21
by Standards Australia, as in force from time to time.'. 22
Page 358
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Industrial Relations Act 1999 1
1 Section 36(2)(b)-- 2
omit, insert-- 3
`(b) the employer's duties under the Work Health and Safety 4
Act 2011.'. 5
2 Section 73(2)(aa)(i)(D)-- 6
omit. 7
3 Section 104(1)(o), `Workplace Health and Safety Act 8
1995'-- 9
omit, insert-- 10
`Work Health and Safety Act 2011'. 11
Mining and Quarrying Safety and Health Act 1999 12
1 Section 9, editor's note-- 13
omit, insert-- 14
`Editor's note-- 15
If a declaration is made, the Work Health and Safety Act 2011 applies to 16
the place because schedule 1, part 2, division 1, section 2(1)(b) of that 17
Act would not apply.'. 18
2 Section 11(3), definition construction work-- 19
omit, insert-- 20
`construction work see the Work Health and Safety 21
Regulation 2011.'. 22
Page 359
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Schedule 4
3 Section 130(5), `Workplace Health and Safety Act 1995'-- 1
omit, insert-- 2
`Work Health and Safety Act 2011.'. 3
Petroleum and Gas (Production and Safety) Act 2004 4
1 Section 670(3), `the Dangerous Goods Safety 5
Management Act 2001'-- 6
omit, insert-- 7
`a regulation under the Work Health and Safety Act 2011'. 8
2 Section 675(1)(s), `Workplace Health and Safety Act 1995, 9
section 3(1)'-- 10
omit, insert-- 11
`Work Health and Safety Act 2011, schedule 1. part 2, division 12
1'. 13
3 Section 727(3)(c), `Dangerous Goods Safety Management 14
Act 2001'-- 15
omit, insert-- 16
`Work Health and Safety Act 2011'. 17
Page 360
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Schedule 4
Petroleum and Gas (Production and Safety) 1
Regulation 2004 2
1 Section 135(2)(c)(iv)(A), `Dangerous Goods Safety 3
Management Act 2001'-- 4
omit, insert-- 5
`Work Health and Safety Regulation 2011'. 6
2 Schedule 2, column 1, incident entries, `Workplace 7
Health and Safety Act 1995'-- 8
omit, insert-- 9
`Work Health and Safety Act 2011'. 10
3 Schedule 9, part 8, section 5(1)(d), `Dangerous Goods 11
Safety Management Act 2001'-- 12
omit, insert-- 13
`Work Health and Safety Regulation 2011'. 14
4 Schedule 12, definition Dangerous Goods Act-- 15
omit. 16
Petroleum (Submerged Lands) Act 1982 17
1 Section 14A(3), definition prescribed occupational health 18
and safety laws, paragraph (a)-- 19
omit. 20
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2 Section 14A(3), definition prescribed occupational health 1
and safety laws, paragraph (e)-- 2
omit, insert-- 3
`(e) Work Health and Safety Act 2011;'. 4
Right to Information Act 2009 5
1 Schedule 3, section 10(1)(h), example-- 6
omit. 7
Statutory Instruments Act 1992 8
1 Section 46(1)(k), `Workplace Health and Safety Act 1995, 9
section 41'-- 10
omit, insert-- 11
`Work Health and Safety Act 2011, section 274'. 12
Sustainable Planning Act 2009 13
1 Section 724(1)(z)-- 14
omit. 15
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Schedule 4
Tourism Services (Code of Conduct for Inbound Tour 1
Operators) Regulation 2003 2
1 Schedule, section 13(b), `obligations under the 3
Workplace Health and Safety Act 1995'-- 4
omit, insert-- 5
`duties and obligations under the Work Health and Safety Act 6
2011'. 7
Transport Infrastructure Act 1994 8
1 Section 107(3), definition amusement railway, paragraph 9
(a)(ii)-- 10
omit, insert-- 11
`(ii) is an amusement device required to be registered 12
under a regulation under the Work Health and 13
Safety Act 2011; and'. 14
2 Section 283ZX(2), from `chief to `2001' -- 15
omit, insert-- 16
`regulator under the Work Health and Safety Act 2011'. 17
3 Section 283ZX(7), definition major hazard facility-- 18
omit, insert-- 19
`major hazard facility means a major hazard facility under a 20
regulation under the Work Health and Safety Act 2011.'. 21
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Transport (Rail Safety) Act 2010 1
1 Sections 4(2), first mention, 5(2)(e)(ii), 9, note and 10(2), 2
note 2, part 2, hdg, sections 13, 14, 15(hdg), 16, 20, 21, 3
note, 22(3), note, 26(a), note, 27(b), note, 29(2), note, 4
32(1), note, 41, note 2, 44(3), note, 55(4), note, 66(b), 198, 5
206 and 268, `Workplace Health and Safety Act'-- 6
omit, insert-- 7
`Work Health and Safety Act'. 8
2 Sections 9, note, 10(2), note 2, 14(2), note 2, 15(1), 16, 9
note, 22(3), note, 26(a), note, 27(b), note, 32(1), note, 41, 10
note 2, 44(3), note and 55(4), note, `obligations'-- 11
omit, insert-- 12
`duties'. 13
3 Section 4(2), note-- 14
omit, insert-- 15
`Note-- 16
The Work Health and Safety Act and the Electrical Safety Act also 17
imposes duties on other persons whose activites could affect rail safety, 18
including for example, persons who conduct a business or undertaking 19
that designs, manufactures, supplies, installs, constructs or commissions 20
a thing that is to be used as or in connection with rail infrastructure or 21
rolling stock.'. 22
4 Section 5(2)(e)(ii), note-- 23
omit. 24
5 Section 6(3), `electrical safety obligation'-- 25
omit, insert-- 26
`electrical safety duty'. 27
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6 Sections 6(3), example and 14(4)(a), `an obligation'-- 1
omit, insert-- 2
`a duty'. 3
7 Section 6(3), example, `an employer to ensure the 4
employer's'-- 5
omit, insert-- 6
`a person conducting a business or undertaking to ensure the'. 7
8 Section 6(3), note `Workplace Health and Safety Act, 8
section 3A'-- 9
omit, insert-- 10
`Work Health and Safety Act, schedule 1, part 2, division 2'. 11
9 Section 14(1), note, `section 3C'-- 12
omit, insert-- 13
`schedule 1, part 2, division 3'. 14
10 Section 14(2), note 2, `section 3'-- 15
omit, insert-- 16
`schedule 1, part 2, division 4'. 17
11 Section 14(2), note 2, `workplace'-- 18
omit. 19
12 Section 15(2), definition workplace health and safety 20
obligations-- 21
omit, insert-- 22
`workplace health and safety duties, of a person, means-- 23
(a) the person's health and safety duties under the Work 24
Health and Safety Act, part 2; or 25
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(b) the person's duty to comply with a direction, notice or 1
order under the Work Health and Safety Act, part 10, 2
divisions 1 to 3.'. 3
13 Section 16, note, `section 3(3)'-- 4
omit, insert-- 5
`schedule 1, part 2, division 4'. 6
14 Section 20(5)(b), `workplace health and safety 7
obligations'-- 8
omit, insert-- 9
`health and safety duties'. 10
15 Section 20(5), note, `section 3C'-- 11
omit, insert-- 12
`schedule 1, part 2, division 3'. 13
16 Section 21, example, `workplace health and safety 14
obligation under the Workplace Health and Safety Act, 15
section 28'-- 16
omit, insert-- 17
`health and safety duty under the Work Health and Safety Act, 18
section 19'. 19
17 Section 66(b), `workplace health and safety 20
representatives'-- 21
omit, insert-- 22
`health and safety representatives'. 23
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18 Schedule 3, definition Workplace Health and Safety Act-- 1
omit, insert-- 2
`Work Health and Safety Act means the Work Health and 3
Safety Act 2011.'. 4
Vocational Education, Training and Employment Act 5
2000 6
1 Section 64(11), definitions dangerous event, serious 7
bodily injury and work caused injury-- 8
omit. 9
2 Section 64(11), definition serious misconduct, paragraph 10
(d)(ii)-- 11
omit, insert-- 12
`(ii) causing an imminent risk of serious injury or 13
illness or a dangerous incident happening; or'. 14
3 Section 64(11), definitions-- 15
insert-- 16
`dangerous incident see the Work Health and Safety Act 17
2011, section 37. 18
serious injury or illness see the Work Health and Safety Act 19
2011, section 36.'. 20
4 Sections 83(4)(c) and 115, `Workplace Health and Safety 21
Act 1995'-- 22
omit, insert-- 23
`Work Health and Safety Act 2011'. 24
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Workers' Compensation and Rehabilitation Act 2003 1
1 Sections 71(2), 72(2) and 573(1A) and (3), `Workplace 2
Health and Safety Act 1995'-- 3
omit, insert-- 4
`Work Health and Safety Act 2011'. 5
2 Schedule 6, definition OHS report, `Workplace Health and 6
Safety Act 1995, part 14, division 1A'-- 7
omit, insert-- 8
`Work Health and Safety Act 2011, schedule 2, part 3'. 9
Part 2 References in other legislation 10
to repealed Acts 11
Division 1 Workplace Health and Safety Act 12
1995 (repealed) 13
1 Replacement of general reference 14
In the following provisions of the mentioned legislation, omit 15
`Workplace Health and Safety Act 1995' and insert `Work 16
Health and Safety Act 2011'-- 17
· Coal Mining Safety and Health Act 1999, section 18
133(5), definition workplace 19
· Education (Work Experience) Act 1996, section 10(3)(a) 20
· Electricity Act 1994, section 135AB(2)(h) 21
· Health Quality and Complaints Commission Act 2006, 22
schedule 1, part 2, item 2 23
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· Marine Parks (Great Sandy) Zoning Plan 2006, section 1
32(6), definition electro-acoustic or mechanical 2
apparatus, paragraph (b)(i), examples, second dot point 3
· Marine Parks (Moreton May) Zoning Plan 2008, section 4
32(6), definition electro-acoustic or mechanical 5
apparatus, paragraph (b)(i), examples, second dot point 6
· Nature Conservation (Wildlife Management) Regulation 7
2006, section 74(2) 8
· Pest Management Act 2001, schedule 3, definition 9
relevant offence, paragraph (c)(i) 10
· Private Employment Agents (Code of Conduct) 11
Regulation 2005, schedule, section 5, examples, ninth 12
dot point 13
· Prostitution Regulation 2000, schedule 1, entry for 14
Department in which the Workplace Health and Safety 15
Act 1995 is administered 16
· Public Health Act 2005, sections 11(3), definition 17
workplace and 150(2)(a) 18
· Public Health Regulation 2005, sections 2B, definition 19
non-workplace area, 2D and 2E 20
· Sustainable Planning Regulation 2009, schedule 7, table 21
1, column 2, items 4 and 7 22
Division 2 Dangerous Goods Safety 23
Management Act 2001 (repealed) 24
1 Replacement of general reference 25
In the following provisions of the mentioned legislation, omit 26
`Dangerous Goods Safety Management Act 2001' and insert 27
`Work Health and Safety Act 2011'-- 28
· Sustainable Planning Regulation 2009, schedule 3, part 29
1, Table 2, item 5, schedule 5, part 1, Table 2, item 6, 30
schedule 6, Table 3, item 4 and schedule 7, table 2, item 31
8 32
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· Transport Security (Counter-Terrorism) Act 2008, 1
sections 6(a) and 17(2)(f)(i) 2
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Schedule 5 Dictionary 1
section 4 2
applicant, for part 5, division 3, subdivision 4A, see section 3
67A. 4
approved code of practice means a code of practice approved 5
under part 14. 6
authorised, for part 4, see section 40. 7
category 1 offence see section 31. 8
category 2 offence see section 32. 9
category 3 offence see section 33. 10
cease work under this division, for part 5, division 6, see 11
section 83. 12
commission means the Queensland Industrial Relations 13
Commission. 14
compliance powers means the functions and powers conferred 15
on an inspector under this Act. 16
condition includes limitation and restriction. 17
construct includes assemble, erect, reconstruct, reassemble 18
and re-erect. 19
corresponding regulator means the holder of a public office, 20
or a public authority, of the Commonwealth, or of a State, 21
who or which is responsible for administering a 22
corresponding law. 23
corresponding WHS law means-- 24
(a) a law of another State corresponding, or substantially 25
corresponding, to this Act; or 26
(b) a law of another State that is declared under a regulation 27
to be a corresponding law, whether or not the law 28
corresponds, or substantially corresponds, to this Act. 29
court, for part 13, division 7, see section 255. 30
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dangerous incident, for part 3 and section 176, see section 37 1
demolition includes deconstruction. 2
design, in relation to plant, a substance or a structure 3
includes-- 4
(a) design of part of the plant, substance or structure; and 5
(b) redesign or modify a design. 6
disclose, in relation to information, includes divulge or 7
communicate to any person or publish. 8
discriminatory conduct, for part 6, see section 105. 9
document includes record. 10
employee record, in relation to an employee, has the same 11
meaning as it has in the Privacy Act 1988 of the 12
Commonwealth. 13
employer organisation means an organisation of employers. 14
engages in conduct means doing an act or omitting to do an 15
act. 16
external review body see section 223(1)(c). 17
Fair Work Act means the Fair Work Act 2009 of the 18
Commonwealth. 19
handling includes transport. 20
health means physical and psychological health. 21
health and safety duty see section 30. 22
health and safety representative, in relation to a worker, 23
means the health and safety representative elected under part 5 24
for the work group of which the worker is a member. 25
import means to bring into Queensland from outside 26
Australia. 27
improvement notice see section 191. 28
industrial officer authority means an authority issued under 29
the Industrial Relations Act 1999, section 364. 30
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industrial registrar means the registrar appointed under the 1
Industrial Relations Act 1999, section 297. 2
infringement notice means an infringement notice under the 3
State Penalties Enforcement Act 1999. 4
inspector means an inspector appointed under part 9. 5
internal reviewer means-- 6
(a) the regulator; or 7
(b) a person appointed by the regulator under section 225. 8
medical treatment means treatment by a doctor. 9
non-disturbance notice see section 198. 10
notifiable incident see section 35. 11
offender, for part 13, division 2, see section 234. 12
officer means-- 13
(a) an officer within the meaning of section 9 of the 14
Corporations Act 2001 of the Commonwealth other than 15
a partner in a partnership; or 16
(b) an officer of the State, Commonwealth or another State 17
within the meaning of section 247; or 18
(c) an officer of a public authority within the meaning of 19
section 252; 20
other than an elected member of a local government acting in 21
that capacity. 22
official of a union, for part 7, see section 116. 23
person conducting a business or undertaking see section 5. 24
personal information has the same meaning as it has in the 25
Privacy Act 1988 of the Commonwealth. 26
plant includes-- 27
(a) any machinery, equipment, appliance, container, 28
implement and tool; and 29
(b) any component of any of those things; and 30
(c) anything fitted or connected to any of those things. 31
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prohibited reason, for part 6, see section 106. 1
prohibition notice see section 195. 2
public authority means-- 3
(a) an authority or body established or incorporated for a 4
public purpose by a law of the State, another State or of 5
the Commonwealth, including a body corporate 6
incorporated under a law of the State, another State or of 7
the Commonwealth in which the State, the other State or 8
the Commonwealth has a controlling interest; or 9
(b) a GOC; or 10
(c) local government; or 11
(d) a statutory body under the Statutory Bodies Financial 12
Arrangements Act 1982. 13
reasonably practicable, in relation to a duty to ensure health 14
and safety, see section 18. 15
regulator see schedule 2, part 1. 16
relevant person conducting a business or undertaking, for 17
part 7, see section 116. 18
relevant union, for part 7, see section 116. 19
relevant worker, for part 7, see section 116. 20
repeal, for-- 21
(a) part 16, division 1, see section 279; or 22
(b) part 16, division 2, see section 298. 23
repealed Act, for-- 24
(a) part 16, division 1, see section 279; or 25
(b) part 16, division 2, see section 298. 26
representative, in relation to a worker, means-- 27
(a) the health and safety representative for the worker; or 28
(b) a union representing the worker; or 29
(c) any other person the worker authorises to represent him 30
or her. 31
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serious injury or illness, for part 3 and section 176, see 1
section 36. 2
State or Territory industrial law has the same meaning as it 3
has in the Fair Work Act. 4
structure means anything that is constructed, whether fixed or 5
moveable, temporary or permanent, and includes-- 6
(a) buildings, masts, towers, framework, pipelines, 7
transport infrastructure and underground works (shafts 8
or tunnels); and 9
(b) any component of a structure; and 10
(c) part of a structure. 11
substance means any natural or artificial substance, whether 12
in the form of a solid, liquid, gas or vapour. 13
supply see section 6. 14
union means-- 15
(a) an employee organisation that is registered, or taken to 16
be registered, under the Fair Work (Registered 17
Organisations) Act 2009 of the Commonwealth; or 18
(b) an employee organisation under the Industrial Relations 19
Act 1999; or 20
(c) an association of employees or independent contractors, 21
or both, that is registered or recognised as such an 22
association (however described) under a State or 23
Territory industrial law. 24
volunteer means a person who is acting on a voluntary basis 25
(irrespective of whether the person receives out-of-pocket 26
expenses). 27
WHS civil penalty provision see section 254. 28
WHS entry permit means a WHS entry permit issued under 29
part 7. 30
WHS entry permit holder means a person who holds a WHS 31
entry permit. 32
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WHS undertaking means an undertaking given under section 1
216(1). 2
work group means a work group determined under part 5. 3
worker see section 7. 4
workplace see section 8. 5
6
© State of Queensland 2011
Page 376
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