Occupational Health and Safety Act 1983 No 20

An Act to secure the health, safety and welfare of persons at work; to amend certain Acts; and for other purposes.

Part 1 Preliminary

1 Name of Act

This Act may be cited as the Occupational Health and Safety Act 1983.

2 Commencement

(1)  Sections 1 and 2 shall commence on the date of assent to this Act.

(2)  Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

3 (Repealed)

s 3: Rep 1989 No 121, Sch 1.

4 Definitions

(1)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

associated occupational health and safety legislation means the provisions declared by Part 4 to be associated occupational health and safety legislation.

domestic premises means premises occupied as a private dwelling.

employee means an individual who works under a contract of employment or apprenticeship.

employer means a corporation which, or an individual who, employs persons under contracts of employment or apprenticeship.

improvement notice means a notice issued under section 31R.

industrial organisation of employees means an industrial organisation of employees registered, or taken to be registered, under Chapter 5 of the Industrial Relations Act 1996.

inspector means an inspector appointed under Division 4 of Part 3.

occupational health and safety legislation includes:

(a)  the provisions of this Act and the regulations, and

(b)  the associated occupational health and safety legislation.

place of work means premises, or any other place, where persons work.

plant includes any machinery, equipment and appliance.

premises includes:

(a)  any land, building or part of any building,

(b)  any vehicle, vessel or aircraft,

(c)  any installation on land, on the bed of any waters or floating on any waters, and

(d)  any tent or movable structure.

prohibition notice means a notice issued under section 31S.

regulation means a regulation under this Act.

self-employed person means an individual who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others.

substance means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour.

work means work as an employee or as a self-employed person.

WorkCover Authority means the WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998.

(2)  For the purposes of this Act, risks arising out of the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used and any part of them.

(3)  For the purposes of this Act:

(a)  an employee is at work throughout the time when he or she is at his or her place of work, but not otherwise, and

(b)  a self-employed person is at work throughout such time as the person devotes to work as a self-employed person.

(3A)  To avoid doubt, a police officer is, for the purposes of this Act:

(a)  an employee of the Crown, and

(b)  at work throughout the time when the officer is on duty at any place, but not otherwise.

(4)  A reference in this Act to:

(a)  a function includes a reference to a power, authority and duty, and

(b)  the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

s 4: Am 1987 No 80, Sch 1 (1); 1989 No 121, Sch 1; 1991 No 34, Sch 3; 1994 No 5, Sch 1 (1); 1994 No 95, Sch 1; 1995 No 89, Sch 2 (1); 1996 No 17, Sch 5; 1998 No 85, Sch 2.9; 2000 No 11, Sch 1 [1].

5 Objects

(1)  The objects of this Act are:

(a)  to secure the health, safety and welfare of persons at work,

(b)  to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work,

(c)  to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs, and

(d)  to provide the means whereby the associated occupational health and safety legislation may be progressively replaced by comprehensive provisions made by or under this Act.

(2)  Subsection (1) (d) does not apply to the mining legislation declared by Division 4 of Part 4 to be associated occupational health and safety legislation.

(3)  The provisions of any paragraph of subsection (1) shall not be construed as limiting or being limited by the operation of any other provision of this Act.

6 Act to bind Crown

This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2

7–14   (Repealed)

pt 2 (ss 7–14): Rep 1989 No 121, Sch 1.

Part 3 General provisions relating to health, safety and welfare at work

Division 1 General duties

15 Employers to ensure health, safety and welfare of their employees

(1)  Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.

(2)  Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a)  to provide or maintain plant and systems of work that are safe and without risks to health,

(b)  to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c)  to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer’s employees,

(d)  as regards any place of work under the employer’s control:

(i)  to maintain it in a condition that is safe and without risks to health, or

(ii)  to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e)  to provide or maintain a working environment for the employer’s employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f)  to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i)  about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii)  about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

(3)  For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person’s employer.

(4)  If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

s 15: Am 1987 No 80, Schs 1 (2), 2 (1); 1990 No 121, Sch 1 (1); 1995 No 89, Sch 2 (2)–(4) (am 1996 No 121, Sch 2.33).

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1)  Every employer shall ensure that persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

(2)  Every self-employed person shall ensure that persons not in the person’s employment are not exposed to risks to their health or safety arising from the conduct of the person’s undertaking while they are at the person’s place of work.

(3)  If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

s 16: Am 1987 No 80, Sch 1 (2); 1990 No 121, Sch 1 (1); 1995 No 89, Sch 2 (5)–(7) (am 1996 No 121, Sch 2.33).

17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety

(1)  Each person who has, to any extent, control of:

(a)  non-domestic premises which have been made available to persons (not being the person’s employees) as a place of work, or the means of access thereto or egress therefrom, or

(b)  any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person’s employees),

shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

(2)  Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to:

(a)  the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or

(b)  the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b),

that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person’s obligation extends.

(3)  A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not).

s 17: Am 1987 No 80, Schs 1 (2), 2 (2); 1990 No 121, Sch 1 (1); 1995 No 89, Sch 2 (8) (9).

18 Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work

(1)  A person who designs, manufactures or supplies any plant or substance for use by persons at work must:

(a)  ensure that the plant or substance is safe and without risks to health when properly used, and

(b)  provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use.

(2)  The obligations under this section:

(a)  apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and

(b)  apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by persons at work, and

(c)  extend to the design, manufacture or supply of components for, or accessories to, any plant for use by persons at work, and

(d)  extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and

(e)  extend to the supply of the plant or substance to a person for the purpose of supply to others, and

(f)  do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person.

(3)  In this section, manufacture plant includes assemble, install or erect plant.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

s 18: Am 1987 No 80, Sch 1 (2); 1990 No 121, Sch 1 (1); 1994 No 5, Sch 1 (2); 1995 No 89, Sch 2 (10)–(12). Subst 1997 No 51, Sch 1 [3].

19 Employees at work to take care of others and to co-operate with employer

Every employee while at work:

(a)  shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work, and

(b)  shall, as regards any requirement imposed in the interests of health, safety and welfare on his or her employer or any other person by or under this Act or the associated occupational health and safety legislation, co-operate with the employer or that other person so far as is necessary to enable that requirement to be complied with.

Maximum penalty: 30 penalty units.

s 19: Am 1987 No 80, Sch 1 (3); 1990 No 121, Sch 1 (2); 1995 No 89, Sch 2 (13).

20 Person not to interfere with or misuse things provided for health, safety and welfare

A person shall not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety and welfare in pursuance of this Act or the associated occupational health and safety legislation.

Maximum penalty: 30 penalty units.

s 20: Am 1987 No 80, Sch 1 (3); 1990 No 121, Sch 1 (2); 1995 No 89, Sch 2 (14).

21 Employer not to charge employees for things done or provided pursuant to statutory requirement

An employer shall not levy or permit to be levied on any of the employer’s employees any charge in respect of anything done or provided in pursuance of any specific requirement made by or under this Act or the associated occupational health and safety legislation.

Maximum penalty: 2,500 penalty units in the case of a corporation or 250 penalty units in any other case.

s 21: Am 1987 No 80, Sch 1 (2); 1990 No 121, Sch 1 (1).

21A Person not to hinder aid to injured worker etc

(1)  A person shall not, by intimidation or by any other act or omission, wilfully hinder or obstruct or attempt to hinder or obstruct:

(a)  the giving or receiving of aid in respect of the illness or injury of a person at work, or

(b)  the doing of any act or thing to avoid or prevent a serious risk to the health or safety of a person at work.

(2)  A person at a place of work shall not refuse any reasonable request:

(a)  for assistance in the giving or receiving of aid in respect of the illness or injury of a person at work at that place of work, or

(b)  for the doing of any act or thing to assist in the avoidance or prevention of a serious risk to the health or safety of a person at work at that place of work.

(3)  It shall be a defence to any proceedings for an offence against a provision of subsection (1) or (2) for the person who contravened the provision to prove that the person had a reasonable excuse or lawful authority for contravening the provision.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

s 21A: Ins 1984 No 138, sec 2. Am 1987 No 80, Sch 1 (2); 1990 No 121, Sch 1 (1); 1995 No 89, Sch 2 (15) (16).

21B Plant or premises involved in dangerous occurrence

(1)  The occupier (within the meaning of Division 4) of premises that are a place of work must take measures to ensure that plant on those premises is not used, moved, or interfered with after it has been involved in a dangerous occurrence.

Maximum penalty: 500 penalty units in the case of a corporation and 250 penalty units in any other case.

(2)  The occupier must also take measures to ensure that no person disturbs an area at the premises that is within 4 metres (or, if the regulations prescribe some other distance, that other distance) from the location where the dangerous occurrence occurred.

Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case.

(3)  If the regulations prescribe measures that satisfy the requirements of subsection (1) or (2), the occupier is taken to have satisfied the requirements of that subsection if the occupier has taken the measures so prescribed.

(4)  This section does not prevent use, movement, interference or disturbance:

(a)  to help or remove a trapped or injured person or to remove a body, or

(b)  to avoid injury to a person or damage to property, or

(c)  for the purposes of any police investigation, or

(d)  in accordance with a direction or permission of an inspector, or

(e)  in such other circumstances as may be prescribed by the regulations.

(5)  The requirements of this section in relation to any particular dangerous occurrence apply only for the period that ends at midnight on the first working day (that is, any day except a Saturday, Sunday or public holiday) after the day on which the occurrence was notified in accordance with section 27 or otherwise notified to the WorkCover Authority, subject to any extension of that period under subsection (6).

(6)  The period for which the requirements of this section apply in relation to a dangerous occurrence can be extended by an inspector by giving notice in writing to the occupier of the premises concerned, but only if notice is given before the end of the period provided by subsection (5). Any such extension is to be on the basis of the period that the inspector considers, after an inspection, to be necessary for a proper examination of the relevant plant or area.

(7)  In this section, dangerous occurrence means:

(a)  an occurrence that causes death, or

(b)  an occurrence that causes a serious injury that is prescribed by the regulations for the purposes of this definition, or

(c)  an occurrence prescribed by the regulations for the purposes of this definition.

ss 21B–21D: Ins 1995 No 89, Sch 2 (17).

21C Notice to stop plant or prevent disturbance of premises to allow inspection

(1)  An inspector who has entered premises under Division 4 may issue a notice under this section to the occupier of the premises (within the meaning of Division 4) if the inspector believes on reasonable grounds that it is necessary to issue the notice in order to allow an inspection, examination, taking of measurements or conduct of tests on the premises, relating to the premises or any plant, substance or thing on the premises.

(2)  The notice must set out the grounds on which it is given.

(3)  While the notice is in force, the occupier must:

(a)  stop the use of any plant, substance or thing that is specified in the notice, and

(b)  take measures to prevent the disturbance of any plant, substance or thing that is specified in the notice.

Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case.

(4)  A notice remains in force for the period, not exceeding 7 days, specified in the notice. A notice may be renewed more than once by an inspector by issuing a further notice in accordance with this section.

(5)  The occupier to whom a notice is issued under this section must, unless an inspector otherwise directs, display a copy of it while it is in force in a prominent place on the premises to which it applies.

Maximum penalty: 10 penalty units.

(6)  An inspector who issues a direction under this section must take reasonable steps to inform the employer of the employees in the place of work on the premises to which the notice relates of the notice as soon as practicable after issuing it.

ss 21B–21D: Ins 1995 No 89, Sch 2 (17).

21D Review in accordance with section 31U

A notice under section 21B or 21C (including any terms of the notice and its period of operation) may be reviewed and appealed against in accordance with section 31U.

ss 21B–21D: Ins 1995 No 89, Sch 2 (17).

22 Civil liability not affected by this Division

(1)  Nothing in this Division shall be construed:

(a)  as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Division,

(b)  as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings,

(c)  as affecting the extent (if any) to which the breach of a duty imposed by or under the associated occupational health and safety legislation is actionable, or

(d)  as affecting the extent (if any) to which the breach of a duty imposed by or under the regulations is actionable.

(2)  Despite subsection (1) (a), if the operation of a provision of this Division has been adapted by a regulation made under section 46 to meet the circumstances of any specified class of case, nothing in this Division is taken to affect the extent (if any) to which the breach of a duty imposed by the adapted provision is actionable in relation to any such case.

s 22: Am 1994 No 5, Sch 1 (3).

Division 2 Occupational health and safety committees

23 Establishment of occupational health and safety committees in workplaces

(1)  An occupational health and safety committee shall be established at a place of work in accordance with this section if:

(a)  there are 20 or more persons employed at the place of work and a majority of the persons so employed requests the establishment of such a committee, or

(b)  the WorkCover Authority directs the establishment of such a committee at the place of work.

(2)  The composition of any such occupational health and safety committee, the election or appointment of persons to the committee and any other matter relating to the establishment or procedure of the committee shall be as prescribed.

(3)  The regulations made for the purposes of subsection (2) shall provide for:

(a)  the election of members of any such occupational health and safety committee by the persons who are employed at the place of work at which the committee is established and the appointment of other members of the committee by the employer of those persons, and

(b)  the election of a presiding member and convener of the committee by and from the members so elected.

(4)  A person shall not fail to do anything the person is required to do pursuant to this section for the purposes of establishing an occupational health and safety committee at a place of work.

Maximum penalty: 150 penalty units in the case of a corporation or 100 penalty units in any other case.

s 23: Am 1987 No 80, Sch 1 (4); 1989 No 121, Sch 1; 1990 No 121, Sch 1 (3).

24 Functions of occupational health and safety committees

(1)  An occupational health and safety committee established at a place of work pursuant to section 23:

(a)  shall keep under review the measures taken to ensure the health and safety of the persons at the place of work,

(b)  shall investigate any matter at the place of work:

(i)  which a member of the committee or a person employed thereat considers is not safe or is a risk to health, and

(ii)  which has been brought to the attention of the employer,

(c)  shall attempt to resolve any such matter but, if unable to do so, shall request an inspector to undertake an inspection of the place of work for the purpose, and

(d)  shall have such other functions as are prescribed.

(2)  An inspection by an inspector to resolve a matter pursuant to subsection (1) (c) shall be undertaken forthwith after the request made by the occupational health and safety committee.

s 24: Am 1995 No 89, Sch 2 (18).

25 Powers of members of occupational health and safety committees

(1)  A member of an occupational health and safety committee established at a place of work pursuant to section 23 shall, for the purposes of the committee, have power:

(a)  to carry out such inspections of the place of work,

(b)  to obtain such information relating to the place of work, or

(c)  to do such other things in relation to the place of work,

as may be prescribed.

(2)  A member of any such occupational health and safety committee shall be provided with training to assist the member to exercise his or her functions as such a member, being training of such kind and provided by such persons as may be prescribed.

(3)  A person who is required by the regulations to provide any such training shall not fail or refuse to provide the training.

Maximum penalty: 100 penalty units.

s 25: Am 1987 No 80, Sch 1 (5); 1990 No 121, Sch 1 (4); 1995 No 89, Sch 2 (19).

26 Unlawful dismissal etc of employee

(1)  An employer shall not dismiss an employee or injure an employee in his or her employment or alter his or her position to his or her detriment by reason of the fact that the employee:

(a)  makes a complaint about a matter which he or she considers is not safe or is a risk to health,

(b)  is a member of an occupational health and safety committee established pursuant to section 23, or

(c)  exercises any of his or her functions as such a member.

Maximum penalty: 250 penalty units in the case of a corporation or 150 penalty units in any other case.

(2)  In proceedings for an offence under subsection (1), if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge shall lie on the defendant.

(3)  Where an employer is convicted by a court of an offence under subsection (1), the court may order:

(a)  the employer to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and

(b)  that the employee be reinstated in his or her old or a similar position.

(4)  An employer shall give effect to an order of the court under subsection (3).

Maximum penalty: For each day the order is not given effect to, 10 penalty units.

s 26: Am 1987 No 80, Sch 1 (4) (6); 1990 No 121, Sch 1 (3) (5); 1993 No 46, Sch 2; 1995 No 89, Sch 2 (20)–(22).

Division 3 Notification of accidents and other matters

27 Notification of accidents and other matters

(1)  Where:

(a)  an accident occurs at a place of work, whether or not it causes the death of, or bodily injury to, any person, or

(b)  any other matter occurs at or in relation to a place of work which affects the health or safety of any person,

being an accident or other matter which is required by the regulations to be notified under this section:

(c)  except as provided by paragraph (d), the occupier of the place of work, or

(d)  such other person as is prescribed,

shall give notice of the accident or other matter in accordance with subsection (2).

Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case.

(2)  A notice of an accident or other matter referred to in subsection (1) shall be given to such persons, within such time and in such manner as are prescribed.

s 27: Am 1987 No 80, Sch 1 (4); 1990 No 121, Sch 1 (3); 1995 No 89, Sch 2 (23) (24).

27A Notification of certain proposed work

(1)  A person must not commence to carry out work of a kind prescribed by the regulations at a place of work unless the person has given notice of the proposed work in accordance with this section.

Maximum penalty: 100 penalty units.

(2)  The regulations may prescribe the following kinds of work for the purposes of subsection (1):

(a)  construction work,

(b)  demolition work,

(c)  the setting up or erection of cranes, hoists, scaffolding, conveyors, escalators, lifts or moving walks,

(d)  any other work (whether or not of the same kind).

(3)  Any notice under this section:

(a)  is to be in the form approved by the WorkCover Authority, and

(b)  is to be given at least 7 days before the commencement of the proposed work, and

(c)  is to be given to the WorkCover Authority by leaving it at, or by sending it by post or by facsimile transmission to, an office of the WorkCover Authority.

(4)  The regulations may:

(a)  require a notice to be given in a different manner, or within a different time, from that prescribed by subsection (3), and

(b)  require a notice to be given by a person other than the person proposing to carry out the work.

(5)    (Repealed)

s 27A: Ins 1990 No 121, Sch 1 (7). Am 1996 No 107, Sch 1.9.

28 Notification under associated occupational health and safety legislation

A provision of the associated occupational health and safety legislation which requires notice to be given of an accident or other matter shall, if the regulations so provide, not have any effect.

Division 4 Appointment and powers of inspectors

pt 3, div 4: Subst 1994 No 5, Sch 1 (4).

29 Definitions

In this Division:

occupier includes a person for the time being having (or appearing to have) the charge, management or control of premises or a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises.

relevant legislation means the provisions of this Act, the Construction Safety Act 1912 and the Factories, Shops and Industries Act 1962 (other than Parts 4 and 6) and regulations made under those provisions.

s 29: Rep 1989 No 121, Sch 1. Ins 1994 No 5, Sch 1 (4).

30 Application of Division

This Division does not apply to a mine within the meaning of the Mines Inspection Act 1901 or the Coal Mines Regulation Act 1982.

s 30: Subst 1987 No 80, Sch 2 (3); 1994 No 5, Sch 1 (4).

30A (Repealed)

s 30A: Ins 1987 No 80, Sch 2 (3). Am 1991 No 92, Sch 2. Rep 1994 No 5, Sch 1 (4).

31 Appointment of inspectors

The WorkCover Authority may appoint as inspectors for the purposes of the relevant legislation any of the following persons:

(a)  a statutory officer,

(b)  a public servant,

(c)  a person employed by a public or local authority,

(d)  a person belonging to a class of persons prescribed by the regulations.

s 31: Subst 1994 No 5, Sch 1 (4).

31A Powers of entry for places of work

For the purposes of the relevant legislation, an inspector may enter any premises the inspector has reason to believe is a place of work.

s 31A: Ins 1994 No 5, Sch 1 (4).

31B Notice of entry

(1)  An inspector authorised to enter premises under this Division may enter the premises without notice.

(2)  The inspector must notify the occupier of the premises of the inspector’s presence on the premises as soon as reasonably practicable after entering the premises, unless:

(a)  to do so would defeat the purpose for which the premises were entered or would unreasonably delay the inspector in a case of urgency, or

(b)  the occupier is already aware that the inspector has entered the premises or was notified in advance of when the inspector would enter the premises.

s 31B: Ins 1994 No 5, Sch 1 (4). Subst 1995 No 89, Sch 2 (25).

31C Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the occupier of the premises.

(2)  The authority must be a written authority that is issued by the WorkCover Authority and that:

(a)  states that it is issued under this Act, and

(b)  gives the name of the person to whom it is issued, and

(c)  describes the nature of the powers conferred and the source of the powers, and

(d)  states the date (if any) on which it expires, and

(e)  describes the kind of premises to which the power extends, and

(f)  bears the signature of the General Manager of the WorkCover Authority or an officer approved by the General Manager for the purposes of this paragraph.

(3)  Entry may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on.

(4)  This section does not apply to a power conferred by a search warrant.

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31D Use of force on entry

(1)  Reasonable force may be used for the purpose of gaining entry to premises (other than domestic premises) under a power conferred by this Division, but only if authorised by the WorkCover Authority in accordance with this section or in cases of emergency.

(2)  The authority of the WorkCover Authority:

(a)  must be in writing, and

(b)  must be given in respect of the particular entry concerned, and

(c)  must specify the circumstances that are required to exist before force may be used.

(3)  This section does not apply to a power conferred by a search warrant and does not affect section 17 of the Search Warrants Act 1985 (Use of force to enter premises etc).

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31E Notification of use of force on entry

(1)  An inspector authorised to enter premises under this Division who uses force for the purpose of gaining entry to the premises must promptly advise the WorkCover Authority of the use of force.

(2)  The WorkCover Authority must give written notice of the entry to such persons or authorities as appear to the Authority to be appropriate in the circumstances.

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31F Compensation

The WorkCover Authority must pay compensation for any loss or damage caused by any inspector in the exercise of any power to enter premises under this Division, but not if that loss or damage is caused because the occupier obstructed, hindered or restricted the inspector in the exercise of the power of entry.

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31G Entry to domestic premises

The powers of entry conferred by this Division are not exercisable in relation to domestic premises except:

(a)  with the permission of the occupier of the premises, or

(b)  under the authority conferred by a search warrant.

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31H Search warrant

(1)  An inspector may apply to an authorised justice for a search warrant if the inspector has reasonable grounds for believing that a provision of the relevant legislation has been or is being or is about to be contravened in or about any premises.

(2)  An authorised justice to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of the relevant legislation.

(3)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(4)  In this section, authorised justice has the same meaning as it has in the Search Warrants Act 1985.

ss 31C–31H: Ins 1994 No 5, Sch 1 (4).

31I Powers available on entry

For the purposes of the relevant legislation, an inspector who enters premises under this Division may do any of the following:

(a)  make searches, inspections, examinations and tests (and take photographs and make video and audio records),

(b)  take for analysis a sample of any substance or thing which in the inspector’s opinion may be, contain or be contaminated by, a substance (or a degradation product of a substance) prescribed by the regulations,

(b1)  dismantle any plant or thing on the premises for the purpose of examination, if the inspector believes on reasonable grounds that the plant or thing has been used in the commission of an offence against the relevant legislation,

(b2)  take any plant, substance or thing (or any sample of a substance) from the premises, if the inspector believes on reasonable grounds that the plant, substance or thing has been used in the commission of an offence against the relevant legislation,

(b3)  keep any plant, substance, sample or thing taken under paragraph (b2) that:

(i)  may reasonably be required as evidence in proceedings for an offence against the relevant legislation, or

(ii)  might, if not so kept, be used to continue or repeat the offence,

(c)  in the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined,

(d)  carry out biological tests in such manner and in such circumstances as may be prescribed by the regulations,

(e)  require any person in or about those premises to answer questions or otherwise furnish information,

(f)  require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector’s functions,

(g)  require the production of and inspect any records in or about those premises,

(h)  take copies of or extracts from any such records,

(i)  exercise all other functions that are conferred by or are reasonably necessary for the purposes of the relevant legislation.

s 31I: Ins 1994 No 5, Sch 1 (4). Am 1995 No 89, Sch 2 (26) (27).

31J Care to be taken

In the exercise of a function under this Division, an inspector must do as little damage as possible.

ss 31J–31K: Ins 1994 No 5, Sch 1 (4).

31K Inspector may request assistance

(1)  A police officer may accompany and take all reasonable steps to assist an inspector in the exercise of the inspector’s functions under this Division:

(a)  in executing a search warrant issued under section 31H, or

(b)  if the inspector reasonably believes that he or she may be obstructed in the exercise of those functions.

(2)  Any person whom an inspector believes to be capable of providing assistance in the exercise of the inspector’s functions under this Division may accompany the inspector and take all reasonable steps to assist the inspector in the exercise of the inspector’s functions.

(3)  Nothing in subsection (1) is to be taken to limit the generality of section 18 of the Search Warrants Act 1985.

ss 31J–31K: Ins 1994 No 5, Sch 1 (4).

31KA Power of inspectors to obtain information, documents and evidence

(1)  An inspector may, by notice in writing served on a person who is, on reasonable grounds, believed by the inspector to be capable of giving information, producing documents or giving evidence in relation to a possible contravention of the relevant legislation require the person to do any one or more of the following things:

(a)  to give an inspector, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,

(b)  to produce to an inspector, in accordance with the notice, any such documents,

(c)  to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.

(2)  A notice under this section must contain a warning that a failure to comply with the notice is an offence.

(3)  An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.

(4)  An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.

(5)  A certified copy provided under subsection (4) is receivable in all courts as if it were the original.

(6)  Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.

s 31KA: Ins 1996 No 120, Sch 2.5 [4].

31L Attendance of inspector at coronial inquest

An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of any employee while employed at a place of work.

s 31L: Ins 1994 No 5, Sch 1 (4).

31M Protection from incrimination

(1)  A person is not excused from making a statement, giving or furnishing information or evidence or producing a document in accordance with a requirement under this Division on the ground that the statement, information, document or evidence may tend to incriminate the person.

(2)  However, any statement, information, document or evidence obtained from a person pursuant to a requirement under this Division is not admissible in evidence against the person in criminal proceedings (other than proceedings for an offence under section 31N) if:

(a)  the person claims before making the statement or giving, furnishing or producing the information, document or evidence that it might tend to incriminate the person, or

(b)  the person’s entitlement to make a claim of the kind referred to in paragraph (a) was not drawn to the person’s attention before the statement was made or the information, document or evidence was given, furnished or produced.

(3)  Subsection (2) does not prevent the admission in evidence in proceedings against a body corporate of any statement, information, document or evidence obtained pursuant to a requirement under this Division from a person as a competent officer of the body corporate.

s 31M: Ins 1994 No 5, Sch 1 (4). Subst 1996 No 120, Sch 2.5 [5].

31N Offence: obstruction and compliance

A person must not:

(a)  obstruct, hinder or impede an inspector in the exercise of the inspector’s functions under this Division, or

(b)  prevent or attempt to prevent any other person from assisting an inspector in the exercise of the inspector’s functions under this Division, or

(c)  directly or indirectly intimidate or threaten or attempt to intimidate an inspector or a person assisting an inspector in the exercise of the inspector’s functions under this Division, or

(d)  without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division, or

(e)  in purported compliance with a requirement under this Division, or in answer to a question of an inspector asked in accordance with this Division, give or furnish information or evidence or produce a document knowing it to be false or misleading in a material particular.

Maximum penalty: 100 penalty units.

s 31N: Ins 1994 No 5, Sch 1 (4). Am 1996 No 120, Sch 2.5 [6].

31O Offence: impersonating an inspector

A person must not impersonate, or falsely represent that the person is, an inspector.

Maximum penalty: 100 penalty units.

s 31O: Ins 1994 No 5, Sch 1 (4).

31P Disclosure of information

(1)  A person who is, or was at any time, an inspector must not disclose any information relating to any manufacturing or commercial secrets or working processes that was obtained by the inspector in connection with the administration or execution of the relevant legislation.

Maximum penalty: 20 penalty units.

(2)  Subsection (1) does not operate to prevent the disclosure of information where that disclosure is:

(a)  made in connection with the administration or execution of the relevant legislation, or

(b)  made with the prior permission of the Minister, or

(c)  ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing and determination by that court, body or person of any matter or thing.

(3)  The Minister may grant the permission referred to in subsection (2) (b) only if the Minister is satisfied that to do so would be in the public interest.

s 31P: Ins 1994 No 5, Sch 1 (4).

31Q Power of employees’ representative to accompany inspector

(1)  An inspector who is proposing to undertake an inspection of a place of work with respect to a matter that may affect the health, safety or welfare of employees at the place of work:

(a)  must, to the extent that it is practicable, consult a representative of the employees or an industrial organisation of employees whose members are employed at the place of work, and

(b)  must, if requested to do so by the representative, take the representative on any such inspection.

(2)  In this section, inspector means an inspector appointed under this Division or under any associated occupational health and safety legislation.

s 31Q: Ins 1994 No 5, Sch 1 (4). Am 1996 No 17, Sch 5.

31R Inspector may issue improvement notices

(1)  If an inspector is of the opinion that any person:

(a)  is contravening any provision of this Act or the regulations, or

(b)  has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated,

the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice.

(2)  The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention must be at least 7 days after the issue of the notice.

(3)  However, an inspector may specify a period that is less than 7 days after the issue of the improvement notice if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of that period.

(4)  An improvement notice must:

(a)  state that the inspector is of the opinion referred to in subsection (1), and

(b)  state the reasons for that opinion, and

(c)  specify the provision of the Act or the regulations in respect of which that opinion is held, and

(d)  include information about obtaining a review of the notice under section 31U.

(5)  A person who, without reasonable excuse, fails to comply with a requirement imposed by an improvement notice is guilty of an offence.

Maximum penalty:

(a)  500 penalty units in the case of a corporation, or

(b)  250 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or

(c)  15 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee.

ss 31R–31T: Ins 1995 No 89, Sch 2 (28).

31S Inspector may issue prohibition notices

(1)  If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk to the health or safety of any person, the inspector may issue to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters which give or will give rise to the risk are remedied.

(2)  A prohibition notice must:

(a)  state that the inspector is of the opinion referred to in subsection (1), and

(b)  state the reasons for that opinion, and

(c)  specify the activity in respect of which that opinion is held, and

(d)  if in the inspector’s opinion the activity involves a contravention or likely contravention of any provision of the Act or the regulations—specify that provision and state the reasons for that opinion, and

(e)  include information about obtaining a review of the notice under section 31U.

(3)  A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence.

Maximum penalty:

(a)  1,000 penalty units in the case of a corporation, or

(b)  500 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or

(c)  30 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee.

ss 31R–31T: Ins 1995 No 89, Sch 2 (28).

31T Notices may include directions

(1)  An inspector may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remedy any contravention or matter to which the notice relates.

(2)  Any such direction may:

(a)  adopt, by reference, the requirements of any industrial or other code of practice, and

(b)  offer the person to whom it is issued a choice of ways in which to remedy the contravention or matter.

ss 31R–31T: Ins 1995 No 89, Sch 2 (28).

31U Review of notices

(1)  A person who is issued with a notice under section 21B, 21C or 31Z, an improvement notice or a prohibition notice may apply in writing to the WorkCover Authority for a review of the notice.

(2)  The application for review must be made within 7 days after the notice is issued or, if the regulations prescribe a different period, within the period so prescribed.

(3)  An application for review may be made only once in respect of any particular notice.

(4)  The WorkCover Authority is to review a notice that is the subject of a duly made application for review. The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the WorkCover Authority until the WorkCover Authority gives notice to the applicant of the result of the review. If the notice is a prohibition notice it can be stayed as provided by section 31UA.

(5)  The WorkCover Authority may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant.

(6)  An applicant who is not satisfied with the result of a review may appeal against the notice concerned to a Local Court constituted by an Industrial Magistrate sitting alone.

(7)  An appeal to a Local Court under this section does not operate to stay the notice the subject of the appeal except as otherwise ordered by the Court.

(8)  Regulations may be made with respect to reviews and appeals under this section, including as to the time and manner in which an application for such a review or appeal is to be made.

s 31U: Ins 1995 No 89, Sch 2 (28). Am 1996 No 120, Sch 2.5 [7].

31UA Application to Industrial Magistrate for stay of prohibition notice

(1)  If a person duly applies under section 31U for review of a prohibition notice, the person may apply to a Local Court constituted by an Industrial Magistrate for a stay of the notice.

(2)  A stay may be granted for such period as the court considers appropriate but not so as to extend past the time when notice of the result of the review is given to the applicant by the WorkCover Authority.

(3)  A stay may be granted on such conditions as the court considers appropriate and may be revoked or amended by the court.

s 31UA: Ins 1996 No 120, Sch 2.5 [8].

31V Withdrawal of notices

(1)  A notice under section 21C or 31Z or an improvement notice or a prohibition notice may be withdrawn at any time by the inspector who issued the notice or by the WorkCover Authority if the inspector or the WorkCover Authority is satisfied that the notice was issued in error or is incorrect in some respect.

(2)  The withdrawal has effect when notice of the withdrawal is given to the person to whom the notice was issued.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31W Revocation or withdrawal of notice does not prevent issue of another notice

The revocation or withdrawal of a notice under section 21C or 31Z or an improvement notice or a prohibition notice does not prevent the issue of any other notice.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31X Service and exhibition of notices

(1)  A notice under section 21B, 21C or 31Z or an improvement notice or prohibition notice, or a notice confirming, revoking or withdrawing such a notice may be issued or given to a person:

(a)  by delivering it personally to the person, or

(b)  by leaving it with some other person at, or sending it by post to, the person’s place of residence or business or the place of work to which the notice relates.

(2)  This section does not affect the operation of any provision of a law or the rules of a court authorising a notice or other document to be served in a manner not authorised by this section.

(3)  An inspector may cause a notice containing a copy of or extract from a notice referred to in subsection (1), or of the matter contained in the notice, to be exhibited at the place of work concerned in a manner approved by the WorkCover Authority.

(4)  A person must not destroy, damage or remove a notice exhibited under subsection (3) except with the approval of the WorkCover Authority or an inspector.

Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31Y Proceedings for offences not affected by notices

The issue, variation, revocation or withdrawal of a notice under section 21C or 31Z or a prohibition notice or improvement notice does not affect any proceedings for an offence against this Act, the regulations or the associated occupational health and safety legislation in connection with any matter in respect of which the notice was issued.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31Z Notice of taking or dismantling

(1)  Before exercising any of the powers under section 31I (b1)–(b3), an inspector must give notice to the occupier of a place of work where the relevant plant, substance or thing is situated of the inspector’s intention to exercise that power.

(2)  The notice must specify the date and time when the inspector proposes to exercise the powers as well as the plant, substance or thing in relation to which the powers are to be exercised.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31AA Powers supporting taking

(1)  Having taken a thing under section 31I (b2), an inspector may:

(a)  move the thing from the place where it was taken, or

(b)  leave the thing at the place but take reasonable action to restrict access to it, or

(c)  if the thing is plant—dismantle it.

(2)  The following are examples of restricting access to a thing:

(a)  sealing a thing and marking it to show access to it is restricted,

(b)  sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted.

(3)  If an inspector restricts access to a thing taken, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector’s approval.

Maximum penalty: 40 penalty units.

(4)  To enable a thing to be taken under section 31I (b2), an inspector may require the person in control of it:

(a)  to take it to a stated reasonable place by a stated reasonable time, and

(b)  if necessary, to remain in control of it at the stated place for a reasonable time.

(5)  The requirement:

(a)  must be made by notice in the approved form, or

(b)  if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice in the approved form as soon as practicable.

(6)  The person must comply with the requirement unless the person has a reasonable excuse for not complying.

Maximum penalty: 40 penalty units.

(7)  A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31AB Receipt for things taken

(1)  As soon as reasonably practicable after an inspector takes a thing under section 31I (b2), the inspector must give a receipt for it to the person from whom it was taken.

(2)  However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place where the thing was taken.

(3)  The receipt must describe generally each thing taken and its condition.

(4)  This section does not apply to a thing if it is impracticable or would be unreasonable to give the notice required by the section (given the thing’s nature, condition and value).

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31AC Forfeiture of things taken

(1)  A thing taken under section 31I (b2) is forfeited to the State if the inspector who took the thing:

(a)  cannot find its owner after making reasonable inquiries, or

(b)  cannot return it to its owner, after making reasonable efforts, or

(c)  reasonably believes it is necessary to retain the thing to prevent it being used to commit an offence against this Act.

(2)  Subsection (1) (a) does not require the inspector to make inquiries if it would be unreasonable to make inquiries to find the owner, and subsection (1) (b) does not require the inspector to make efforts if it would be unreasonable to make efforts to return the thing to its owner.

(3)  If the inspector decides to forfeit a thing under subsection (1) (c), the inspector must tell the owner of the decision by written notice.

(4)  Subsection (3) does not apply if:

(a)  the inspector cannot find its owner, after making reasonable inquiries, or

(b)  it is impracticable or would be unreasonable to give the notice.

(5)  The notice must state:

(a)  the reasons for the decision, and

(b)  that the owner may apply within 28 days for the decision to be reviewed, and

(c)  how the owner may apply for the review, and

(d)  that the owner may apply for a stay of the decision if the owner applies for a review.

(6)  In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing’s nature, condition and value.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31AD Return of things taken

(1)  If a thing taken under section 31I (b2) has not been forfeited, the inspector must return it to its owner at the end of:

(a)  6 months, or

(b)  if a proceeding for an offence involving it is started within 6 months—the proceeding and any appeal from the proceeding.

(2)  Despite subsection (1), unless the thing has been forfeited, the inspector must immediately return a thing taken as evidence to its owner if the inspector stops being satisfied its continued retention as evidence is necessary.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

31AE Access to things taken

(1)  Until a thing taken under section 31I (b2) is forfeited or returned, an inspector must allow its owner to inspect it and, if it is a document, to copy it.

(2)  Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

ss 31V–31AE: Ins 1995 No 89, Sch 2 (28).

Division 5 Entry and inspection powers of employees’ representatives

pt 3, div 5: Ins 1995 No 89, Sch 2 (28).

31AF Definitions

authorised officer of an industrial organisation of employees, means an officer of that organisation (including any person who is concerned in, or takes part in, the management of that organisation) who is authorised under Part 7 of Chapter 5 of the Industrial Relations Act 1996.

occupier has the same meaning as in Division 4.

s 31AF: Ins 1995 No 89, Sch 2 (28). Am 1996 No 17, Sch 5.

31AG Powers of entry of places of work

An authorised officer of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, enter any premises the officer has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.

s 31AG: Ins 1995 No 89, Sch 2 (28).

31AH Notice of entry

(1)  An authorised officer authorised to enter premises under this Division may enter the premises without notice.

(2)  The authorised officer must notify the occupier of the premises of the authorised officer’s presence on the premises as soon as reasonably practicable after entering the premises, unless:

(a)  to do so would defeat the purpose for which the premises were entered or would unreasonably delay the authorised officer in a case of urgency, or

(b)  the occupier is already aware that the authorised officer has entered the premises or was notified in advance of when the authorised officer would enter the premises.

s 31AH: Ins 1995 No 89, Sch 2 (28).

31AI Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority issued by the Industrial Registrar under Part 7 of Chapter 5 of the Industrial Relations Act 1996 and produces the authority if required to do so by the occupier of the premises.

(2)  Entry may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on.

s 31AI: Ins 1995 No 89, Sch 2 (28). Am 1996 No 17, Sch 5.

31AJ Entry to domestic premises

The powers of entry conferred by this Division are not exercisable in relation to domestic premises except with the permission of the occupier of the premises.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AK Powers available on entry

For the purpose of investigating any suspected breach of the occupational health and safety legislation, an authorised officer who enters premises under this Division may do any of the following:

(a)  make searches and inspections (and take photographs),

(b)  require the occupier of those premises to provide the authorised officer with such assistance and facilities as is or are reasonably necessary to enable the officer to exercise the officer’s functions under this Division,

(c)  require the production of and inspect any records in or about those premises that directly affect or directly deal with the occupational health and safety of employees working at those premises,

(d)  take copies of or extracts from any such records.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AL Care to be taken

In the exercise of a function under this Division, an authorised officer must do as little damage as possible.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AM Authorised officer may request assistance from inspector

An inspector may accompany and take all reasonable steps to assist an authorised officer in the exercise of the officer’s functions under this Division if the officer reasonably believes that the officer may be obstructed in the exercise of those functions.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AN Offence of obstructing authorised officer

A person must not:

(a)  obstruct, hinder or impede an authorised officer in the exercise of the officer’s functions under this Division, or

(b)  directly or indirectly intimidate or threaten or attempt to intimidate an authorised officer in the exercise of the officer’s functions under this Division, or

(c)  without reasonable excuse, refuse or fail to comply with a requirement made by an authorised officer in accordance with this Division.

Maximum penalty: 20 penalty units.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AO Offence of impersonating an authorised officer

A person must not impersonate, or falsely represent that the person is, an authorised officer.

Maximum penalty: 100 penalty units.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

31AP Disclosure of information

(1)  A person who is, or was at any time, an authorised officer must not disclose any information relating to any manufacturing or commercial secrets or working processes that was obtained by the officer in connection with the exercise of functions under this Division.

Maximum penalty: 20 penalty units.

(2)  Subsection (1) does not operate to prevent the disclosure of information where that disclosure is:

(a)  made with the prior permission of the Minister, or

(b)  ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing and determination by that court, body or person of any matter or thing.

(3)  The Minister may grant the permission referred to in subsection (2) (a) only if the Minister is satisfied that to do so would be in the public interest.

ss 31AJ–31AP: Ins 1995 No 89, Sch 2 (28).

Division 6 Miscellaneous

pt 3, div 6 (s 31AQ): Ins 1995 No 89, Sch 2 (28).

31AQ Minister may require and publish special reports into accidents and dangerous occurrences

(1)  The Minister may direct the WorkCover Authority to prepare a special report for the Minister with respect to:

(a)  any accident that occurred at a place of work and that caused the death of or bodily injury to any person, or

(b)  any occurrence at a place of work that constituted a danger to any person.

(2)  The Minister may, if the Minister thinks fit, cause such a report or any part of such a report to be made public, whether by causing the report or part of the report to be published or otherwise. The Minister may table a copy of the report in Parliament.

(3)  No liability is incurred by the Crown and no personal liability is incurred by, or by any person acting at the direction of, the Minister or the WorkCover Authority in respect of anything done in good faith in connection with the preparation or making public of a report under this section.

(4)  No liability is incurred by a person for publishing in good faith:

(a)  a report made public under this section, or

(b)  a fair report or summary of such a report.

(5)  In this section liability includes liability in defamation.

pt 3, div 6 (s 31AQ): Ins 1995 No 89, Sch 2 (28).

Part 4 Associated occupational health and safety legislation

Division 1 Preliminary

32 Saving

Subject to this Division, the provisions of the associated occupational health and safety legislation shall be observed in addition to the provisions of this Act and the regulations.

33 This Act to prevail

(1)  Except as provided by subsection (2), where any provision of the associated occupational health and safety legislation is inconsistent with a provision of this Act or the regulations, the provision of this Act or the regulations shall prevail.

(2)  A person is not guilty of an offence under Part 3 in respect of any act or omission which is expressly required or permitted to be done or omitted by or under the associated occupational health and safety legislation.

34 Double jeopardy

Where an act or omission constitutes an offence:

(a)  under this Act or the regulations, and

(b)  under the associated occupational health and safety legislation,

the offender shall not be liable to be punished twice in respect of the offence.

Division 2 Factories, shops and industries legislation

35 Factories, Shops and Industries Act 1962

The provisions of the Factories, Shops and Industries Act 1962 (Parts 4–9 excepted) and the regulations and orders made thereunder shall, for the purposes of this Act, be associated occupational health and safety legislation.

36 (Repealed)

s 36: Rep 1999 No 85, Sch 4.

Division 3 Construction safety legislation

37 Construction Safety Act 1912

The provisions of the Construction Safety Act 1912 and the regulations made thereunder shall, for the purposes of this Act, be associated occupational health and safety legislation.

38 (Repealed)

s 38: Rep 1999 No 85, Sch 4.

Division 4 Mining legislation

39 Mines Inspection Act 1901 etc

The provisions of the Mines Inspection Act 1901, the Mines Rescue Act 1994 and the Coal Mines Regulation Act 1982 and the regulations and rules made thereunder shall, for the purposes of this Act, be associated occupational health and safety legislation.

s 39: Am 1994 No 13, Sch 4.

40 (Repealed)

s 40: Rep 1999 No 85, Sch 4.

Division 5 Dangerous goods legislation

41 Dangerous Goods Act 1975

The provisions of the Dangerous Goods Act 1975 and the regulations made thereunder shall, for the purposes of this Act, be associated occupational health and safety legislation.

42 (Repealed)

s 42: Rep 1999 No 85, Sch 4.

Division 6 Rural workers accommodation legislation

43 Rural Workers Accommodation Act 1969

The provisions of the Rural Workers Accommodation Act 1969 and the regulations made thereunder shall, for the purposes of this Act, be associated occupational health and safety legislation.

44 (Repealed)

s 44: Rep 1999 No 85, Sch 4.

Part 4A Industry codes of practice

pt 4A: Ins 1987 No 80, Sch 2 (4).

44A Industry codes of practice

(1)  For the purpose of providing practical guidance to employers, self-employed persons and employees, the WorkCover Authority may formulate and prepare industry codes of practice.

(2)  The Minister may, having regard to any recommendation of the WorkCover Authority, approve an industry code of practice.

(3)  An industry code of practice may:

(a)  consist of any code, standard, rule, specification or provision relating to occupational health, safety or welfare approved by the Minister, or

(b)  apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the industry code of practice is approved or as amended, formulated or published from time to time.

(4)  The Minister may, having regard to any recommendation of the WorkCover Authority, approve any amendment of the whole or any part of an industry code of practice or revoke the approval of an industry code of practice.

(5)  The Minister shall cause to be published in the Gazette:

(a)  an approved industry code of practice,

(b)  an approved amendment of an industry code of practice, and

(c)  the revocation of approval of an industry code of practice.

(6)  The Minister shall cause:

(a)  a copy of every approved industry code of practice,

(b)  if an approved industry code of practice has been amended, a copy of every approved industry code of practice as so amended, and

(c)  if an approved industry code of practice applies, incorporates or refers to any other document, a copy of every such document,

to be made available for inspection by members of the public without charge at the office of the WorkCover Authority during normal office hours.

(7)  An approved industry code of practice commences on the day when the code is published in the Gazette or, if a later commencement date is specified in the code, on that date.

(8)  An approved amendment of an industry code of practice commences on the day when the amendment is published in the Gazette or, if a later commencement date is specified in the amendment, on that date.

(9)  An approved revocation of an industry code of practice commences on the day when the revocation is published in the Gazette or, if a later commencement date is specified in the revocation, on that date.

(10)  A person shall not be liable to any civil or criminal proceedings by reason only that the person has failed to observe any provision of an approved industry code of practice.

s 44A: Ins 1987 No 80, Sch 2 (4). Am 1989 No 121, Sch 1; 1994 No 5, Sch 1 (5); 1995 No 89, Sch 2 (29).

44B Use of industry codes of practice

In any proceedings under this Act in which it is alleged that a person contravened or failed to comply with a provision of this Act or the regulations:

(a)  an approved industry code of practice which is relevant to any matter which it is necessary for the prosecution to prove in order to establish the alleged contravention or failure is admissible in evidence in those proceedings, and

(b)  the person’s failure at any material time to observe the approved industry code of practice is evidence of the matter to be established in those proceedings.

s 44B: Ins 1987 No 80, Sch 2 (4).

Part 5 Regulations

45 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the objects of this Act.

(1A)  Without limiting the generality of subsection (1), the Governor may make regulations for or with respect to:

(a)  regulating or prohibiting:

(i)  the manufacture, supply or use of any plant,

(ii)  the manufacture, supply, storage, transport or use of any substance, and

(iii)  the carrying on of any process or the carrying out of any operation,

(a1)  requiring persons to identify hazards arising from work (including those arising from any premises or other place of work or from any plant or substance for use at work),

(a2)  requiring persons to assess the risks to the health and safety of persons associated with any such hazards and to deal with those risks,

(a3)  designating the persons (whether employers, self-employed persons, principal contractors or other persons) who are to be responsible for compliance with the obligations imposed by the regulations,

(b)  requiring any person to hold a permit, or any business, plant, substance or workplace to be licensed or registered, in any circumstances or as a condition of the carrying on of any activity or the doing of any thing,

(c)  the granting, renewal, cancellation or suspension of a permit, licence or certificate of registration,

(d)  prohibiting the carrying out of any activity by a person unless the person holds a permit or the use of any plant, substance or workplace unless it is licensed or registered,

(e)  the establishment, terms and conditions of membership, functions and procedure of a body which grants, renews, cancels or suspends permits, licences or certificates of registration,

(f)  the circumstances in which permits, licences or certificates of registration may be cancelled or suspended,

(g)  the manner of application for granting or renewal of permits, licences or certificates of registration,

(h)  the terms and conditions upon which permits, licences or certificates of registration may be granted,

(i)  appeals against a decision of a body not to grant or renew or to cancel or suspend a permit, licence or certificate of registration,

(j)  requiring persons, in any circumstances involving risk of absorption of any substance or risk of injury or poisoning arising out of the use of any substance, to undergo a biological test,

(k)  requiring persons to abstain from eating, drinking or smoking in any circumstances involving risk of absorption of any substance or risk of injury or poisoning arising out of the use of any substance,

(l)  measures for detecting and investigating cases in which absorption of any substance or injury or poisoning arising out of the use of any substance has occurred, including medical examinations, the making of biological tests and the notification of absences from work,

(m)  the making, keeping and inspection of records of matters relating to the risk of absorption of, or risk of injury or poisoning arising out of the use of, any substance and the furnishing of returns and information relating to those matters including returns and information relating to medical examinations, biological tests and injury or poisoning,

(n)  the analysis of any substance,

(o)  the fees chargeable or payable for doing any act or providing any service for the purposes of the regulations,

(p)  forms for the purposes of this Act and the regulations,

(q)  the manner of serving notices under this Act,

(r)  appeals against a determination of an inspector,

(s)  prohibiting disclosure of information obtained by a person in the course of implementing this Act or the regulations,

(t)  any information to be provided by an inspector to any person, and

(u)  any matter relating to occupational health and safety with respect to which regulations may be made under the associated occupational health and safety legislation.

(1B)  A reference in subsection (1A) to a permit includes a reference to a certificate of competency.

(2)  Without limiting the generality of subsection (1), the Governor may make regulations for or with respect to conferring power on inspectors under this Act or any associated occupational health and safety legislation:

(a)  to require any contravention, or likely contravention, of this Act or the regulations to be remedied, and

(b)  to prohibit any activity at a place of work which is not safe or which is a risk to health.

(3)    (Repealed)

(3A)  A regulation may apply, adopt or incorporate any publication as in force from time to time.

(4)  A regulation may impose a penalty not exceeding 250 penalty units for any offence against a regulation.

s 45: Am 1987 No 80, Schs 1 (7), 2 (5); 1990 No 121, Sch 1 (6); 1991 No 94, Sch 1; 1994 No 5, Sch 1 (6); 1995 No 89, Sch 2 (30); 1997 No 51, Sch 1 [8] [9].

46 Adaptation of Part 3

The regulations may adapt the provisions of Part 3 to meet the circumstances of any specified class of case.

46A Regulations may prescribe decisions that are to be reviewable by Administrative Decisions Tribunal

(1)  A person aggrieved by a decision made under the regulations that belongs to a class of decisions prescribed by the regulations for the purposes of this subsection may apply to the Administrative Decisions Tribunal for a review of the decision.

(2)  Despite subsection (1), a regulation referred to in that subsection may limit the class of persons who may make an application for a review of a decision referred to in that subsection.

(3)  A regulation referred to in subsection (1) cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997.

s 46A: Ins 1998 No 48, Sch 2.15.

Part 6 Offences

47 Summary procedure for offences

(1)  Proceedings for an offence against this Act or the regulations shall be dealt with summarily:

(a)  before a Local Court constituted by a Magistrate sitting alone, or

(b)  before the Industrial Relations Commission in Court Session.

(c)    (Repealed)

(1A)  If a person is convicted of an offence against this Act, the convicting court may order the offender to pay to the WorkCover Authority the reasonable cost of examining or testing any plant, substance or thing to which the conviction relates.

(1B)  That cost may be recovered by the WorkCover Authority as a judgment debt against the person convicted.

(2)  The maximum penalty that may be imposed in those proceedings by a Local Court is 500 penalty units or 2 years imprisonment (or both), or the maximum penalty provided in respect of the offence, whichever is the lesser.

(3)  The maximum penalty that may be imposed in those proceedings by the Industrial Relations Commission in Court Session is the maximum penalty provided in respect of the offence.

(4)  The provisions of section 197 of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session apply to proceedings before a Local Court for offences against this Act or the regulations.

s 47: Subst 1987 No 80, Sch 1 (8). Am 1991 No 34, Sch 3; 1992 No 112, Sch 1; 1995 No 89, Sch 2 (31) (32); 1996 No 17, Sch 5; 1998 No 137, Sch 2.20.

47A Court may order cause of offence to be remedied

(1)  If a court convicts a person of an offence against this Act or the regulations in respect of a matter which appears to the court to be within the person’s power to remedy, the court may, in addition to imposing a penalty provided with respect to the offence, order the person to take such steps as may be specified in the order for remedying that matter within the period specified in the order.

(2)  A person must not, without reasonable excuse, fail to comply with an order under this section.

Maximum penalty: 1,000 penalty units in the case of a corporation and 250 penalty units in any other case.

(3)  The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if application for such an extension is made before the end of that period.

s 47A: Ins 1995 No 89, Sch 2 (33).

48 Authority to prosecute

(1)  Proceedings for an offence against this Act or the regulations may be instituted only:

(a)  with the written consent of the Minister or a prescribed officer, or

(b)  by an inspector, or

(c)  by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.

(2)  In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of that consent without proof of the signature of the Minister or prescribed officer, as the case may be.

s 48: Am 1987 No 80, Sch 1 (9); 1988 No 131 Sch 15; 1992 No 57, Sch 2; 1994 No 5, Sch 1 (7); 1996 No 17, Sch 5.

49 Time for instituting proceedings for offences

(1)  Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence.

(2)  Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1):

(a)  within 2 years after the act or omission alleged to constitute the offence, or

(b)  within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred,

whichever provides the longer time for proceedings to be instituted.

(3)  Proceedings for an offence against section 27 (Notification of accidents and other matters) may be instituted, despite subsection (1):

(a)  within 2 years after the act or omission alleged to constitute the offence, or

(b)  within 6 months after the WorkCover Authority first becomes aware of the act or omission alleged to constitute the offence,

whichever provides the longer time for proceedings to be instituted.

(4)  If a coroner’s inquest or inquiry is held and it appears from the coroner’s report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

s 49: Am 1995 No 89, Sch 2 (34).

49A Multiple contraventions of Part 3

(1)  More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2)  This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence.

(3)  A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence.

s 49A: Ins 1997 No 51, Sch 1 [11].

50 Offences by corporations

(1)  Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that:

(a)    (Repealed)

(b)  he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c)  he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2)  A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3)  Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4)  In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

s 50: Am 1990 No 121, Sch 1 (8); 1995 No 89, Sch 2 (35).

51 Aiding and abetting etc

(1)  A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in or a party to, the commission of an offence against this Act or the regulations shall be deemed to have committed that offence and is punishable accordingly.

(2)  Subsection (1) does not apply to a person who is acting in the ordinary course of his or her duties as an officer of an industrial union of employees or employers.

51A Additional penalty for further offence against the Act

(1)  A Court that convicts a person of an offence (the current offence) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties:

(a)  if the current offence is an offence against section 15, 16, 17 or 18 of this Act—2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or

(b)  if the current offence is any other offence against this Act—50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section).

(2)  For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section.

(3)  This section applies even if the previous offence concerned was committed before the commencement of this section.

s 51A: Ins 1987 No 80, Sch 1 (10). Subst 1995 No 89, Sch 2 (36).

51B Penalty notices for certain offences

(1)  An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence under this Act (or the regulations under this Act) or a provision of the associated occupational health and safety legislation, being an offence prescribed by the regulations.

(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter dealt with by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

(3)  A penalty notice may be served personally or by post.

(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(5)  Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way as affecting or prejudicing, any civil claim, action or proceedings arising out of the same occurrence.

(6)  The regulations may:

(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and

(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and

(c)  prescribe different amounts of penalties for different offences or classes of offences.

(7)  The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.

(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.

(9)  In this section:

authorised officer means a person declared by the regulations to be an authorised officer for the purposes of this section.

s 51B: Ins 1990 No 121, Sch 1 (9).

51C Requirement to give name and address

(1)  An authorised officer (within the meaning of section 51B) or an inspector may require a person whom the officer or inspector reasonably suspects has committed an offence against this Act or the associated occupational health and safety legislation or any regulation under this Act or that legislation to state the person’s residential address and full name and to provide reasonable proof of the person’s identity.

(2)  A person who, without reasonable excuse, fails to comply with a requirement of an officer or inspector under this section is guilty of an offence.

Maximum penalty: 15 penalty units.

(3)  A person does not commit an offence against this section if:

(a)  the officer or inspector does not, at the time when the officer or inspector makes the requirement, show the person proof of the officer’s or inspector’s authority, or

(b)  the officer or inspector does not, at the time when the officer or inspector makes the requirement, warn the person that it would be an offence not to comply with the requirement.

s 51C: Ins 1995 No 89, Sch 2 (37).

52 Offence: obstruction or hindering persons in exercise of powers

(1)  A person shall not wilfully hinder or obstruct any person in the exercise of a power conferred by or under this Act.

Maximum penalty: 500 penalty units in the case of a corporation or 150 penalty units in any other case.

(2)  If an act or omission constitutes an offence under this section and section 31N, the offender is not liable to be punished twice in respect of the offence.

s 52: Am 1987 No 80, Sch 1 (4); 1990 No 121, Sch 1 (3); 1994 No 5, Sch 1 (8); 1995 No 89, Sch 2 (38) (39).

52A Offence: disruption of workplace by creating health or safety fears

(1)  A person must not deliberately create a risk (or the appearance of a risk) to the health or safety of persons at a place of work with the intention of causing a disruption of work at that place.

Maximum penalty: 50 penalty units.

(2)  It is a defence to any proceeding for an offence against this section if the person who contravened the section had a reasonable excuse or lawful authority for creating the risk or the appearance of the risk.

s 52A: Ins 1994 No 5, Sch 1 (9).

53 Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a)  it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b)  the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

54 Evidentiary statements

In a prosecution for an offence against this Act or the regulations, a statement, purporting to be signed by the General Manager of the WorkCover Authority, relating to:

(a)  a document or record, being:

(i)  notification of an accident or other matter required by the regulations to be notified under section 27 or required to be notified under any provision of the associated occupational health and safety legislation or regulations made under that legislation,

(ii)    (Repealed)

(iii)  a certificate of competency issued under section 17 or 17A of the Construction Safety Act 1912, or

(iv)  a certificate, licence or permit issued under a provision of the regulations, or

(b)  any other prescribed matter contained in a prescribed official document or record concerning occupational health and safety,

and certifying that the contents of the statement are in accordance with the particulars contained in the document or record, is admissible in any proceedings and is evidence of the matters contained in the statement without proof of the signature of the person by whom the statement purports to have been signed.

s 54: Am 1987 No 80, Sch 2 (6); 1989 No 121, Sch 1.

55 Savings and transitional provisions

Schedule 8 has effect.

s 55: Ins 1994 No 5, Sch 1 (10).

Part 7 Sentencing guidelines

Division 1 Interpretation

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

56 Definitions

In this Part:

Full Bench means the Full Bench of the Industrial Relations Commission in Court Session.

guideline judgment means a judgment of the Full Bench containing guidelines to be taken into account by the Industrial Relations Commission in Court Session, a Local Court, the District Court or the Supreme Court in sentencing persons convicted of an offence being:

(a)  guidelines that apply generally, or

(b)  guidelines that apply to particular courts (or the Industrial Relations Commission in Court Session) or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of persons convicted of an offence (but not to particular persons).

guideline proceedings means proceedings under section 57 on an application for a guideline judgment referred to in that section.

offence means an offence under this Act, the regulations or the associated occupational health and safety legislation.

State peak council has the meaning that it has in the Dictionary to the Industrial Relations Act 1996.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

sch 1: Rep 1989 No 121, Sch 1.

sch 2: Rep 1999 No 85, Sch 4.

sch 3: Rep 1999 No 85, Sch 4.

sch 4: Am 1984 No 153, Sch 16. Rep 1999 No 85, Sch 4.

schs 5–7: Rep 1999 No 85, Sch 4.

Division 2 Applications for sentencing guidelines

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

57 Guideline judgments on application of Attorney General

(1)  The Full Bench may give a guideline judgment on application of the Attorney General.

(2)  An application for a guideline judgment may include submissions with respect to the framing of the guidelines.

(3)  An application is not to be made in any proceedings before the Full Bench with respect to any particular person.

(4)  The powers and jurisdiction of the Full Bench to give a guideline judgment in proceedings under this section in relation to an offence are the same as the powers and jurisdiction that the Court of Criminal Appeal has to give a guideline judgment in a pending proceeding relating to an offence apart from section 37 of the Crimes (Sentencing Procedure) Act 1999.

(5)  A guideline judgment under this section may be given separately or may be included in any judgment of the Full Bench that it considers appropriate.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

58 Peak councils may intervene

(1)  A State peak council, or a representative of a State peak council who is a legal practitioner, may appear in guideline proceedings.

(2)  Without limiting subsection (1), a State peak council or its representative may do either or both of the following:

(a)  make submissions with respect to the framing of the guidelines,

(b)  assist the Full Bench with respect to any relevant matter.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

59 Full Bench may give persons or organisations leave to appear

(1)  The Full Bench may grant leave to any person, organisation or government department or agency (or a representative of any person, organisation, department or agency who is a legal practitioner) to appear in guideline proceedings.

(2)  Without limiting subsection (1), any person, organisation, government department or agency that is granted leave to appear (or its representative, if any) may do either or both of the following:

(a)  make submissions with respect to the framing of the guidelines,

(b)  assist the Full Bench with respect to any relevant matter.

(3)  This section does not apply to State peak councils.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

60 Alteration of guideline judgments

A guideline judgment given in proceedings under section 57 may be reviewed, varied or revoked in a subsequent guideline judgment of the Full Bench, whether made under that section or apart from it.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

61 Discretion of Full Bench preserved

Nothing in this Part:

(a)  limits any power or jurisdiction of the Full Bench to give a guideline judgment that the Full Bench has apart from section 57, or

(b)  requires the Full Bench to give any guideline judgment under section 57 if it considers it inappropriate to do so.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

62 Rules of Industrial Relations Commission

Rules of the Industrial Relations Commission may be made under the Industrial Relations Act 1996 with respect to applications, and proceedings to determine applications, under this Part.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

Division 3 Miscellaneous

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

63 Use of evidence in giving guideline judgments

(1)  Nothing in section 12 of the Criminal Appeal Act 1912 or in section 163 (2) of the Industrial Relations Act 1996 limits the evidence or other matters that the Full Bench may take into consideration in giving a guideline judgment (whether or not on an application under this Part) and the Full Bench may inform itself as it sees fit.

(2)  The Full Bench must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Full Bench in giving a guideline judgment in the appeal but was not given in the original proceedings.

pt 7, divs 1–3 (ss 56–63): Ins 2000 No 9, Sch 1.

Schedules 1–7 (Repealed)

Schedule 8 Savings and transitional provisions

(Section 55)

Part 1 Savings and transitional provisions consequent on enactment of certain Acts

1 Regulations

(1)  The regulations may make regulations containing provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

Occupational Health and Safety Legislation (Amendment) Act 1994

WorkCover Legislation Amendment Act 1995

Occupational Health and Safety Amendment Act 1997

(2)  Any such provision may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 Provisions consequent on enactment of the Occupational Health and Safety Legislation (Amendment) Act 1994

Division 1 General

2 Definition

In this Part:

amending Act means the Occupational Health and Safety Legislation (Amendment) Act 1994.

3 Existing inspectors

(1)  An existing inspector is taken to be appointed under Division 4 of Part 3 of this Act as amended by the amending Act.

(2)  A reference in any other Act, in an instrument made under any Act or in any document of any kind to an existing inspector is to be read as a reference to an inspector appointed under this Act as amended.

(3)  In this section:

existing inspector means:

(a)  an inspector appointed under the Factories, Shops and Industries Act 1962 and holding office immediately before the commencement of Schedule 3 (2) to the amending Act, or

(b)  an inspector appointed under the Construction Safety Act 1912 and holding office immediately before the commencement of Schedule 2 (2) to the amending Act.

Division 2 Transitional provisions relating to fumigations and pesticides

4 Restriction on use of dangerous substance for fumigation

(1)  In this Division:

dangerous substance includes:

(a)  hydrocyanic acid, or

(b)  any other substance prescribed by the regulations to be a dangerous substance for the purposes of this Division.

(2)  A person who uses any dangerous substance for the purpose of fumigating premises is guilty of an offence unless:

(a)  the person is the holder of a licence (a fumigation licence) issued by the WorkCover Authority for the purposes of this Division, or

(b)  the fumigation is carried out under the personal supervision of the holder of the fumigation licence.

(3)  The holder of a fumigation licence must observe and comply with the licence conditions when using any dangerous substance for the purpose of fumigating premises.

Maximum penalty: 40 penalty units.

(4)  This clause has effect until the repeal or expiry of the Occupational Health and Safety (Fumigations and Pesticides) Regulation referred to in clause 5 (2) (b).

5 Revival of Part 12 of Public Health Regulations

(1)  The repeal of Part 12 of the Public Health Regulations by section 10 of the Subordinate Legislation Act 1989 on 1 September 1992 is taken to have been postponed on 2 occasions under that Act and, accordingly, that Part as in force immediately before its repeal did not expire on that date.

(2)  Part 12 of the Public Health Regulations (as continued in force by subclause (1)):

(a)  is taken to have been made under this Act and may be amended or repealed accordingly, and

(b)  may be cited as the Occupational Health and Safety (Fumigations and Pesticides) Regulation.

6 Proclamations under section 71A of Public Health Act 1902

Any proclamation made by the Governor under section 71A of the Public Health Act 1902 that was in force immediately before the repeal of that section is taken to have continued in force since that repeal and is taken, on the commencement of this clause, to have been made under clause 4.

7 Validation—section 71B of Public Health Act 1902 and Part 12 of Public Health Regulations

Any act or thing done or purporting to be done before the commencement of this clause:

(a)  under section 71B of the Public Health Act 1902 since the repeal of that section, or

(b)  under Part 12 of the Public Health Regulations since the repeal of that Part,

and that would have been validly done if that section or Part had continued in force is validated.

8 Repeal of clause 89 of Public Health Regulation 1991

Clause 89 of the Public Health Regulation 1991 is repealed.

Part 3 Provisions consequent on enactment of the WorkCover Legislation Amendment Act 1995

9 Definition

In this Part:

amending Act means the WorkCover Legislation Amendment Act 1995.

10 Alternative convictions (section 15 and 16)

(1)  The amendments made to sections 15 and 16 by the amending Act do not apply in respect of proceedings against a person for an offence against section 15 or 16 that were commenced in a court before the commencement of those amendments.

(2)  In respect of any proceedings against a person that are commenced in a court on or after the commencement of those amendments, the amendments apply whether the offence is alleged to have been committed before or after the commencement of those amendments.

11 Increase in penalty that may be imposed by Local Court

(1)  The amendment made to section 47 of this Act (Summary procedure for offences) by the amending Act does not apply in respect of proceedings for an offence against this Act or the regulations that were commenced in a Local Court before the commencement of that amendment.

(2)  In respect of proceedings commenced on or after the commencement of that amendment, the amendment applies whether the offence was committed before or after the commencement of the amendment.

12 Power of court to order that contravention of Act or regulations be remedied

Section 47A of this Act (which was inserted by the amending Act) applies in respect of any person convicted of an offence against this Act or the regulations on or after the commencement of that section, even if the offence was committed before the commencement of that section.

13 Increase in time limit for institution of offence proceedings

Section 49 (2), (3) and (4) of this Act (as inserted by the amending Act) extend to apply in respect of an act or omission constituting an offence against this Act or the regulations which occurred within 2 years before the commencement of those subsections.

14 Change in defences available to directors and managers

The amendment made to section 50 of this Act by the amending Act does not apply in respect of a contravention of this Act or the regulations that occurred before the commencement of that amendment.

15 Increased penalty for additional offence

(1)  The amendment made to section 51A of this Act by the amending Act does not apply in respect of proceedings for an offence against this Act which was committed before the commencement of that amendment.

(2)  Section 51A, as in force immediately before that amendment, continues to apply in respect of such proceedings as if the amendment had not been made.

Part 4 Provisions consequent on enactment of Occupational Health and Safety Amendment Act 1997

16 Definition

In this Part, amending Act means the Occupational Health and Safety Amendment Act 1997.

17 Temporary preservation of regulation-making powers under repealed associated legislation

Until the end of the period of 3 years after the repeal of the provisions of the former associated occupational health and safety legislation referred to in Schedule 2 to the amending Act, regulations may be made under this Act for or with respect to any matter contained in that legislation or any matter that could have been prescribed by regulation under that legislation (but for its repeal).

18 Staged repeal under Subordinate Legislation Act 1989 of regulations to be repealed by amending Act

A regulation that is to be repealed by the amending Act is taken not to be repealed by section 10 of the Subordinate Legislation Act 1989.

19 Saving of existing certificates of competency

(1)  This clause applies to any certificate of competency or other permit that is required to be held under the regulations made under this Act.

(2)  A certificate of competency or other permit under an Act or regulation (or a provision of an Act or regulation) repealed by the amending Act that:

(a)  was held immediately before that repeal, and

(b)  is of a similar kind to a certificate of competency or other permit to which this clause applies,

is taken to be a certificate of competency or other permit to which this clause applies.

(3)  This clause is subject to the provisions of the regulations under this Act.

20 Application of amendments to section 18

The amendments made to section 18 by the amending Act:

(a)  apply to any plant or substance designed or manufactured after (but not before) the commencement of those amendments, and

(b)  apply to any plant or substance supplied after (but not before) the commencement of those amendments, irrespective of when it was designed or manufactured.

21 Application of section 46 (2) (relationship of regulations with Part 3)

Section 46 (2) (as inserted by the amending Act) does not apply to proceedings instituted before the commencement of section 46 (2).

22 Application of section 49A (Multiple contraventions of Part 3)

Section 49A (as inserted by the amending Act) applies to charges made after the commencement of that section, whether the offence to which the charge relates was committed before or after that commencement.

Part 5 Provisions consequent on enactment of Occupational Health and Safety Amendment (Police Officers) Act 2000

23 Pending proceedings

Section 4 (3A), as inserted by the Occupational Health and Safety Amendment (Police Officers) Act 2000, extends to acts, matters or things that are the subject of proceedings commenced, but not finally determined, before the commencement of that Act.

sch 8: Ins 1994 No 5, Sch 1 (11). Am 1995 No 89, Sch 2 (40) (41); 1997 No 51, Sch 1 [15] [16]; 2000 No 11, Sch 1 [2].