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MAGISTRATES COURT (WORK HEALTH AND SAFETY INFRINGEMENT NOTICES) AMENDMENT REGULATION 2018 (NO 1) (NO 7 OF 2018)
2018
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
MAGISTRATES COURT (WORK HEALTH AND SAFETY INFRINGEMENT NOTICES) AMENDMENT REGULATION 2018 (No 1)
SL2018-7
EXPLANATORY STATEMENT
Presented by
Gordon Ramsay
MLA
Attorney-General
Magistrates Court (Work Health and Safety Infringement Notices) Amendment Regulation 2018 (No 1)
Outline
Part 3.8 of the Magistrates Court Act 1930 provides for the
issuing of infringement notices for offences listed in regulation. The
Magistrates Court (Work Health and Safety Infringement Notices)
Regulation 2011 (WHS Infringement Notice Regulation) enables
infringement notices to be issued for certain offences under the Work Health
and Safety Act 2011 (WHS Act) and Work Health and Safety
Regulation 2011 (WHS Regulation).
The WHS Act provides a
balanced and nationally consistent framework to secure the health and safety of
workers and workplaces. The WHS Regulation prescribes procedural or
administrative requirements and sets out detailed requirements to support the
duties under the WHS Act.
On 22 February 2018, a Bill to enact the
Work Health and Safety Legislation Amendment Act 2018 (WHS Amendment
Act) was passed in the Legislative Assembly. On commencement of the WHS
Amendment Act, the associated Work Health and Safety Amendment Regulation
2018 (WHS Amendment Regulation) adopted the remaining chapters of the
national model Work Health and Safety Regulations, chapter 7 (Hazardous
Chemicals) and chapter 9 (Major Hazard Facilities), into the Territory’s
WHS Regulation.
The Magistrates Court (Work Health and Safety
Infringement Notices) Amendment Regulation 2018 (No 1) amends schedule 1,
part 1.2 of the WHS Infringement Notice Regulation by providing that the
Magistrates Court Act 1930, part 3.8 also applies to particular offences
introduced by the WHS Amendment Regulation.
The infringement notice
system is intended to provide an alternative to prosecution where it is deemed
appropriate to impose a monetary fine rather than taking the matter before the
court. Under the Magistrates Court Act, a person authorised to issue an
infringement notice for an offence has discretion to decide whether to issue a
notice and are appropriately trained to be able issue such a
notice.
Section 6A of the WHS Regulation provides that, unless otherwise
specified, the physical elements of an offence are strict liability. For the
offences in the Regulation, the prosecution is required to prove only the
conduct of the accused. However, where the accused produces evidence of an
honest and reasonable, but mistaken, belief in the existence of certain facts
which, if true, would have made the conduct innocent, it will be incumbent on
the prosecution to establish that there was not an honest and reasonable mistake
of fact.
The rationale for these strict liability offences is that people
who owe work health and safety duties can be expected to be aware of their
duties and obligations to the wider public. Breaches should be apparent without
the need for further inquiry, or the need to weigh up competing or contradictory
evidence.
Failure to comply with any requirement in the Regulation is an
offence. As these offences arise in the regulatory context where public safety
is paramount, there is an interest in ensuring regulatory schemes are observed,
and in this context the sanction of criminal penalties is justified.
All
offences have been set consistent with the existing penalties applied under the
WHS Infringement Notice Regulation and are less than 20% of the maximum penalty
for the offence. This is consistent with ACT Government policy. As a result
infringement notices penalties range from $144 to $720 for an individual and
$720 to $3600 for a body corporate.
Magistrates Court (Work Health and Safety Infringement Notices) Amendment Regulation 2018 (No 1)
Detail
Notes on clauses
Clause 1—Name of regulation—provides that the
regulation is called the Magistrates Court (Work Health and Safety
Infringement Notices) Amendment Regulation 2018 (No
1).
Clause 2—Commencement—provides that the
regulation commences the day after its notification.
Clause
3—Legislation amended—provides that this regulation will amend
the Magistrates Court (Work Health and Safety Infringement Notices)
Regulation 2011.
Clause 4—Schedule 1, part 1.2, new items
18A to 18D—amends schedule 1, part 1.2 to insert new items for
which infringement notices may be issued in relation to section 79 and 80
(offences in relation to the risk of falls from heights) of the Work Health
and Safety Regulation 2011.
Clause 5—Schedule 1, part 1.2,
new items 100A to 100L— amends schedule 1, part 1.2 to insert new
items for which infringement notices may be issued in relation to chapter 7
(hazardous chemicals) of the Work Health and Safety Regulation
2011.
Clause 6—Schedule 1, part 1.2, new items 134 to
140— amends schedule 1, part 1.2 to insert new items for which
infringement notices may be issued in relation to chapter 9 (major hazard
facilities) of the Work Health and Safety Regulation 2011.