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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WORK HEALTH AND SAFETY AMENDMENT BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Honourable Tony Burke MP)
WORK HEALTH AND SAFETY AMENDMENT BILL 2022
OUTLINE
The Work Health and Safety Amendment Bill 2022 (the Bill) would amend the Work Health
and Safety Act 2011 (WHS Act) to adopt recent amendments to the model Work Health and
Safety Bill published by Safe Work Australia. Minor technical amendments are made to
model provisions for implementation in the Commonwealth.
Work health and safety in Australia is legislated and regulated separately by each of
Australia's state, territory and Commonwealth jurisdictions. Work health and safety laws are
largely harmonised across these jurisdictions through a set of uniform laws (the model Work
Health and Safety laws). These model Work Health and Safety laws are developed and
administered by an independent statutory body, Safe Work Australia, through a tripartite
process involving all jurisdictions as well as employer and worker representatives.
The model Work Health and Safety laws were independently reviewed in 2018 by Ms Marie
Boland in the Review of the model Work Health and Safety laws - Final report (Boland
Review) and 34 legislative and non-legislative recommendations were made. As a result of
the Boland Review recommendations, Safe Work Australia undertook tripartite consultation
seeking feedback on implementing key recommendations of the Boland Review in the model
Work Health and Safety Laws and published a Decision Regulatory Impact Statement in
December 2019. In May 2021, Ministers responsible for work health and safety reached
agreement on a path forward for all Boland Review recommendations. In June 2022, the
model Work Health and Safety Bill was amended in line with this process.
This Bill would harmonise the WHS Act with the recent changes to the model Work Health
and Safety Bill. Specifically, the Bill:
• amends the Category 1 offence to include negligence as a fault element
• clarifies that a work group is negotiated with workers who are proposed to form
the work group
• amends the obligation to train health and safety representatives to provide that
health and safety representatives are entitled to choose a course of training
• aligns the process for the issuing and service of notices under the WHS Act to
provide clarity and consistency
• provides an inspector may within 30 days of entering a workplace issue a written
notice requiring the production of documents, written answers to specified
questions, or attendance at an interview, provided the request is related to the
reason for entry
• clarifies that Comcare may share information with other persons including
corresponding regulators for the purpose of performing functions under relevant
laws
Work Health and Safety 1 House of Representatives
Amendment Bill 2022
• extends the 12-month deadline, to 18-months, for a person to make a request to
the regulator to bring a prosecution for a Category 1 or 2 offence
• prohibits a person from entering into a contract of insurance to provide coverage
over liability for monetary penalties which may be imposed under the WHS Act,
and
• creates a new offence in relation to officers of bodies corporate which contravene
the prohibition on entering into contracts of insurance to cover liability for
monetary penalties.
The Bill would also amend the Safe Work Australia Act 2008 (SWA Act) to clarify, for the
avoidance of doubt, that information necessary to support Safe Work Australia's data and
evidence functions may be provided to Safe Work Australia.
Safe Work Australia is the national policy body for work health and safety and workers'
compensation. Its members represent the interests of Commonwealth, states and territories, as
well as employers and workers.
As part of its role in developing these national policies and strategies, Safe Work Australia
maintains and publishes national data sets, for example the Traumatic Injury Fatalities
database and the National Data Set for Compensation-Based Statistics. Safe Work Australia
uses its data to produce research on work health and safety and workers' compensation policy
and practice.
Maintaining national data sets and developing evidence-based research relies on input from a
range of sources including jurisdictional authorities. The amendments will ensure that
persons with relevant information, including work health and safety regulators and workers'
compensation bodies, are able to provide that information to Safe Work Australia.
FINANCIAL IMPACT
The Bill has no financial impact.
House of Representatives 2 Work Health and Safety
Amendment Bill 2022
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
WORK HEALTH AND SAFETY AMENDMENT BILL 2022
1. The Work Health and Safety Amendment Bill 2022 (the Bill) is compatible with the
human rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. This Bill would amend both the Work Health and Safety Act 2011 (WHS Act) and the
Safe Work Australia Act 2008 (SWA Act).
3. The Bill would amend the WHS Act to adopt recent amendments to the model Work
Health and Safety Bill published by Safe Work Australia. The amendments were
recommended in the Review of the model Work Health and Safety laws - Final report.
4. The proposed amendments have minor technical differences to the model provisions.
These differences are included to ensure the adopted provisions work as intended in the
Commonwealth context. An additional amendment is included to update references to
state and territory laws in section 4 of the WHS Act.
5. The Bill would also amend the SWA Act to clarify, for the avoidance of doubt, that
information necessary to support Safe Work Australia's data and evidence functions
may be provided to Safe Work Australia.
Human rights implications
6. The Bill engages the following human rights:
• The right to just and favourable conditions of work under Article 7 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR); and
• The right to privacy under article 17 of the International Covenant on Civil and
Political Rights (ICCPR).
7. The content of the right to just and favourable conditions of work can be informed by
specific obligations in treaties of the International Labour Organization (ILO), such as
the Occupational Safety and Health Convention 1981 (No. 155) which requires the
adoption of a coherent national policy on occupational safety, occupational health and
the working environment.
Right to just and favourable conditions of work
8. Article 7 of the ICESCR provides that everyone has the right to the 'enjoyment of just
and favourable conditions of work, which ensure, in particular ... [s]afe and healthy
working conditions'.
9. The prevention of occupational accidents and diseases is a fundamental aspect of the
right to just and favourable conditions of work. Its realisation requires the adoption of a
Work Health and Safety 3 House of Representatives
Amendment Bill 2022
national policy for the prevention of accidents and work-related injury by minimising
hazards in the working environment and ensuring broad participation in its formulation,
implementation and review, in particular of workers and employers and their
representative organisations.
10. The policy should also promote the collection and dissemination of reliable and valid
data on the fullest possible range of occupational accidents and disease, and include
appropriate enforcement provisions and adequate penalties for violations.
11. The Bill promotes the right to safe and healthy working conditions and a coherent
national work health and safety policy by:
• clarifying duties under the WHS Act which will assist duty holders to meet their
obligations under the WHS Act;
• improving access to training for health and safety representatives which will assist
in promoting worker participation in safety policies and procedures; and
• strengthening work health and safety regulatory powers and ensuring the most
serious category of offence for non-compliance extends to grossly negligent
conduct.
12. The Bill also promotes Article 7 through facilitating Safe Work Australia's data
collection, analysis and publication functions to inform the development and evaluation
of national work health and safety and workers' compensation policies and strategies.
Right to privacy
13. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy, family, home and correspondence. This includes the
respect for informational privacy, including in respect of storing, using and sharing
private information and the right to control dissemination of personal and private
information. Privacy guarantees a right to secrecy from the publication of personal
information. It also prohibits unlawful attacks on a person's reputation.
Item 1- Amendments to the SWA Act
14. Item 1 would amend the SWA Act to provide for the Chief Executive Officer of Safe
Work Australia to request information from a person in certain circumstances and an
express permission for a person to provide the requested information.
15. In particular, new subsections 66B(5)-(6) would provide an express permission that a
person can rely on to provide the requested information, if they consider the disclosure
to Safe Work Australia is appropriate. This express permission would not compel a
person to provide information when requested. New subsection 66B(6) provides that a
person may disclose information to Safe Work Australia in response to a request
despite anything in a law of the Commonwealth (other than the SWA Act) or a law of a
state or territory. This means that a non-disclosure provision in other legislation that
would otherwise prevent information being disclosed to Safe Work Australia, does not
prevent its disclosure. For example, section 271 in the WHS Act which may in some
House of Representatives 4 Work Health and Safety
Amendment Bill 2022
circumstances restrict the ability of Comcare to disclose information gathered as part of
an investigation.
16. This amendment engages the right to privacy because information that may be
disclosed could include personal information; non-disclosure provisions that otherwise
apply may be overridden.
17. To the extent that the right to privacy is limited by the amendment it is considered the
limitation is necessary for a legitimate objective. The purpose of the amendment is to
clarify, for the avoidance of doubt, that information necessary to support Safe Work
Australia's data and evidence functions may be provided to Safe Work Australia.
18. Safe Work Australia is the national policy body for work health and safety and
workers' compensation. Its members represent the interests of Commonwealth, states
and territories, as well as employers and workers. As part of its role in developing these
national policies and strategies, Safe Work Australia maintains and publishes national
data sets, for example the Traumatic Injury Fatalities database and the National Data
Set for Compensation-Based Statistics. Safe Work Australia uses its data to produce
research on work health and safety and workers' compensation policy and practice.
19. Maintaining national data sets and developing evidence-based research relies on input
from a range of sources including jurisdictional authorities. The amendments will
ensure that persons with relevant information, including work health and safety
regulators and workers' compensation bodies, are able to provide that information to
Safe Work Australia.
20. The amendment is reasonable and proportionate, as information must be necessary for
the performance of Safe Work Australia's data and evidence functions. Currently, this
involves for example fatality data which identifies the relevant industry where the
fatality occurred. It would not include for example, a person's medical record as this is
not necessary for the performance of Safe Work Australia's functions. Failing to fulfil a
request would not be an offence and broad discretion will be retained by the person
holding information. There could be a range of legitimate reasons as to why a request
may not be fulfilled, including for example if the information requested would reveal
sensitive information about an individual's health, it may be necessary to remove
identifying details before it is provided.
21. Safe Work Australia is subject to a range of obligations to ensure that the information it
obtains is handled appropriately:
• Information collected by Safe Work Australia that is personal information is
subject to the requirements of the Privacy Act 1988 which governs its collection,
use, disclosure, storage and disposal.
• As Australian Public Service (APS) employees, Safe Work Australia employees
are bound by the APS Code of Conduct, including regulation 2.1 (duty not to
disclose information) which applies to information obtained by Safe Work
Australia related to the performance of its statutory functions. A breach of the
Work Health and Safety 5 House of Representatives
Amendment Bill 2022
Code of Conduct by an APS employee may lead to the imposition of sanctions up
to and including termination of employment.
• The Commonwealth Criminal Code Act 1995 contains a variety of offences
relating to the unauthorised disclosure of information by current (and former)
Commonwealth officers, including APS employees, punishable by terms of
imprisonment (of between two and seven years depending on the circumstances of
the offence).
Item 12- new subsection 171(2A)
22. The Bill would also, under new subsection 171(2A) permit the inspector, within 30
days after the inspector has entered the workplace, or any other inspector within this
timeframe, to give written notice to a person requiring the person to:
• produce specified documents within a specified period
• give written answers to specified questions within a specified period, or
• require the person to attend before the inspector at a specified time and place to
answer any questions put by the inspector, including via audio or audiovisual link.
23. Proposed subsection 171(2A) engages the right to privacy because information or
documents produced or given to an inspector, may include personal and sensitive
information, such as identifying information and information about a person's health.
For example, an inspector may wish to seek information or documents, after entering a
workplace, to:
• Confirm the identity of persons involved in a workplace incident
• Obtain other workplace records which may contain personal and sensitive
information, such as information about a worker's health.
24. To the extent that these provisions may limit the right to privacy, it would be a
permissible limitation. Disclosure of information would only be permitted to the extent
that it is necessary or required for the purposes of work health and safety regulators
performing legislated functions and enforcing work health and safety laws. New
subsection 171(2A) also builds on existing powers under subsection 171(1) of the WHS
Act, which already permits an inspector to require a person to provide information or
documents while the inspector is at a workplace.
25. Requiring information or documents to be provided under new subsection 171(2A)
would be reasonable, necessary and proportionate to achieving the legitimate object of
maintaining safe and healthy working conditions under the harmonised work health and
safety scheme, as described in article 7 of the ICESCR above.
Item 24- new section 271A
26. The Boland Review identified that there is a need to provide clarity about the capacity
of work health and safety regulators to share information with corresponding work
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Amendment Bill 2022
health and safety regulators. Work health and safety in Australia is legislated and
regulated in each state and territory and Commonwealth jurisdiction. Businesses and
workers operate across multiple jurisdictions and regulators work together to secure
health and safety and undertake enforcement action where appropriate.
27. New section 271A would set out circumstances in which the regulator, or a person
authorised by the regulator, may disclose information or give access to a document to
any other person, including a corresponding regulator, or otherwise use the information
or document where section 271 applies to the information or document.
28. The Bill would provide that information sharing under section 271A must be necessary
or required in the express and limited circumstances listed in paragraphs 271A(3)(a),
(b), (c), (d) and (e). These are in circumstances where the regulator reasonably believes
the disclosure, access or use of the information or document is:
• necessary for administering, or monitoring or enforcing compliance with, the
WHS Act, or for the administration or enforcement of another Act prescribed by
the Work Health and Safety Regulations 2011
• necessary for the administration or enforcement of another Act or law, if
necessary to lessen or prevent a serious risk to public health or safety
• necessary for the recognition of authorisations under a corresponding WHS law,
or
• required for the exercise of a power or function under a corresponding WHS law.
29. Proposed paragraphs 271A(3)(a), (b), (c), (d) and (e) engage the right to privacy
because information held by regulators will include personal information including
sensitive personal information, such as identifying information and information about a
person's health. For example:
• The regulator may need to disclose details about an incident which occurred in
their jurisdiction when a joint investigation with a corresponding work health and
safety regulator is underway. This disclosure would be necessary to enforce
relevant work health and safety laws.
• The regulator may need to confirm the validity of a high-risk work licence, this
may include providing a person's name and date of birth to a corresponding work
health and safety regulator to verify that the person holds a valid licence. This
would be necessary to ensure that work is performed by workers with relevant
training and qualifications to do the work safely.
30. To the extent that these provisions may limit the right to privacy, it would be a
permissible limitation. Disclosure of information would only be permitted to the extent
that it is necessary or required for the purposes of work health and safety regulators
performing legislated functions and enforcing work health and safety laws.
Work Health and Safety 7 House of Representatives
Amendment Bill 2022
31. The limited circumstances in which information can be shared may be further confined
by the relevant state and territory privacy laws that require work health and safety
regulators to comply with privacy obligations.
32. Any permitted disclosure of personal information as clarified under
paragraphs 271A(3)(d) and (e) would be reasonable, necessary and proportionate to
achieving the legitimate object of maintaining safe and healthy working conditions
under the harmonised work health and safety scheme, as described in article 7 of the
ICESCR above.
Conclusion
33. The Bill is compatible with human rights because it promotes the right to safe and
healthy working conditions. To the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate.
Minister for Employment and Workplace Relations, the Hon Tony Burke MP
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Amendment Bill 2022
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used.
Bill Work Health and Safety Amendment Bill 2022
SWA Act Safe Work Australia Act 2008
WHS Act Work Health and Safety Act 2011
Boland Review of the model Work Health and Safety laws - Final report
Review
Clause 1 Short title
1. This is a formal provision specifying the short title of the Act, when enacted.
Clause 2 Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
Clause 3 Schedule
3. This clause gives effect to the provisions in the Schedule to the Bill.
Work Health and Safety 9 House of Representatives
Amendment Bill 2022
SCHEDULE 1 - AMENDMENTS
Safe Work Australia 2008
Item 1 - After Part 7
4. Item 1 would insert new Part 7A into the SWA Act.
5. New section 66A would provide a simplified outline of new Part 7A.
6. New section 66B would provide for the Chief Executive Officer (CEO) of Safe Work
Australia to request information from a person in certain circumstances and an express
permission for a person to provide the requested information. The CEO would be able
to delegate the power to make such a request to senior employees of Safe Work
Australia under section 68 of the SWA Act.
• The requested information must be relevant to Safe Work Australia's data and
research function. New subsection 66B(1) would provide that new section 66B
applies to a person if the CEO believes on reasonable grounds that the person has
information that is relevant to the performance of the functions of Safe Work
Australia set out in item 4 of the table in section 6 of the SWA Act.
• The request would need to be made in writing. New subsection 66B(2) provides
that the CEO may, by written notice given to the person, request the person to
give to the CEO within the period and in the manner and form specified in the
notice any such information.
• The period specified in the notice must not be less than 14 days. New subsection
66B(3) would provide that the period specified under new subsection 66B(2) must
not be shorter than 14 days after the notice is given (new subsection 66B(3)).
• The manner specified in the notice must also include the use of a service to which
paragraph 51(v) of the Constitution applies, for example a notice could specify
that information is provided by email or mail (new subsection 66B(4)). New
subsection 66B(4) has been included because new Part 7A would be supported by
paragraph 51(v) of the Constitution (which is the power of the Parliament to make
laws with respect to postal, telegraphic, telephonic, and other like services).
7. New subsections 66B(5)-(6) would provide an express permission that a person can
rely on to provide the requested information, if they consider the disclosure to Safe
Work Australia is appropriate. In particular, new subsection 66B(6) provides that a
person may disclose information to Safe Work Australia in response to a request
despite anything in a law of the Commonwealth (other than the SWA Act) or a law of
a state or territory. This means that a non-disclosure provision in other legislation that
would otherwise prevent information being disclosed to Safe Work Australia, does
not prevent its disclosure. For example, section 271 in the Commonwealth WHS Act
which may in some circumstances restrict the ability of Comcare to disclose
information gathered as part of an investigation. This express permission would not
House of Representatives 10 Work Health and Safety
Amendment Bill 2022
compel a person to provide information when requested. Nor would a person be
required to justify a decision not to provide requested information. It is not an offence
for a person not to provide information in response to a request.
8. Currently, Safe Work Australia collects information from a range of sources to perform
its evidence function. There could be a range of legitimate reasons as to why a request
may not be fulfilled, for example:
• A document may not be disclosed because it is subject to legal professional
privilege;
• If the information requested would reveal sensitive information about an
individual's health, it may be necessary to remove identifying details before it
is provided.
• Fulfilling the request may be an unreasonable imposition on resources; or
• Providing the information might impede an ongoing investigation or
prosecution.
9. Safe Work Australia is subject to a range of obligations to ensure that the information it
obtains is handled appropriately:
• Information collected by Safe Work Australia that is personal information is
subject to the requirements of the Privacy Act 1988 which governs its collection,
use, disclosure, storage and disposal.
• As Australian Public Service (APS) employees, Safe Work Australia employees
are bound by the APS Code of Conduct, including regulation 2.1 (duty not to
disclose information) which applies to information obtained by Safe Work
Australia related to the performance of its statutory functions. A breach of the
Code of Conduct by an APS employee may lead to the imposition of sanctions up
to and including termination of employment.
• The Commonwealth Criminal Code Act 1995 contains a variety of offences
relating to the unauthorised disclosure of information by current (and former)
Commonwealth officers, including APS employees, punishable by terms of
imprisonment (of between two and seven years depending on the circumstances of
the offence).
Work Health and Safety 11 House of Representatives
Amendment Bill 2022
Work Health and Safety Act 2011
Item 2 - Section 4 (paragraph (d) of the definition of corresponding WHS law)
10. Item 2 is a technical amendment and it would repeal paragraph 4(d) 'the Occupational
Safety and Health Act 1984 of Western Australia;' and substitute '(d) the Work Health
and Safety Act 2020 of Western Australia;'.
Item 3 - Section 31 (heading)
Item 4 - Paragraph 31(1)(c)
11. These items would broaden the Category 1 offence to apply to offences of negligence
as well as recklessness. The definition of negligence under section 5.5 of the Criminal
Code Act 1995 (Cth) is used for this offence, which reflects the common law meaning
of "gross negligence". This amendment would implement recommendation 23a of the
Boland Review, which recommended that a duty holder commits a Category 1 offence
if the duty holder is grossly negligent in exposing an individual to a risk of serious
harm or death.
12. The Category 1 offence would involve conduct where the fault element is negligence or
recklessness that exposes an individual to a risk of death or serious injury or serious
illness without reasonable excuse. The prosecution will be required to prove either the
fault element of negligence or recklessness in addition to proving the physical elements
of the Category 1 offence. Unlike recklessness, the fault element of negligence does not
require the prosecution to prove that the offender had a subjective awareness that their
conduct posed a substantial risk of death or serious injury or illness and continued on
with their conduct regardless. Providing an alternative fault element of negligence is
intended to lower the threshold for conviction for the Category 1 offence.
Item 5 - Paragraph 52(1)(b)
13. Item 5 is a clarifying amendment and it would omit 'will' and substitute 'are proposed
to' in paragraph 52(1)(b) of the WHS Act.
14. This amendment would clarify that work groups are negotiated and agreed between the
relevant parties, that is, between the person conducting a business or undertaking and
the workers who are proposed to form the work group or their representatives. A
worker's representative could be a union delegate or official, or any other person the
worker authorises to represent them (see the definition of 'representative' in section 4
of the WHS Act).
15. This amendment would implement recommendation 7b of the Boland Review, which
recommended that the WHS Act be amended to provide that a work group is negotiated
with workers who are proposed to form the work group.
Item 6 - Paragraph 72(1)(c)
16. Item 6 would make amendments to paragraph 72(1)(c) to provide that a health and
safety representative is able to choose their own course of training. It removes the
House of Representatives 12 Work Health and Safety
Amendment Bill 2022
requirement for the health and safety representative to make this decision 'in
consultation with the PCBU'.
17. This amendment would implement recommendation 10 of the Boland Review, which
recommended that section 72 of the WHS Act be amended to ensure a health and safety
representative is entitled to choose their course of training.
Item 7 - Subsection 72(5)
18. Item 7 is a consequential amendment to Item 6.
Item 8 - After subsection 155(2)
19. Item 8 would insert new subsection 155(2A) which provides that a written notice may
be served using any of the methods set out in section 209 of the WHS Act (which
include, for example, personal delivery, by post or facsimile). New subsection 155(2A)
aligns notice methods under section 155 with the methods set out in section 209. The
written notice may also be served in accordance with other applicable legislation, such
as using a method permitted by the Acts Interpretation Act 1901 (Cth).
20. This amendment would implement recommendation 16 of the Boland Review, which
recommended that section 155 be amended to align service notice provisions and
ensure clarity and consistency across the WHS Act.
Item 9 - Paragraph 155(3)(b)
21. Item 9 is a technical amendment and would repeal and replace paragraph 155(3)(b) of
the WHS Act. The new paragraph makes it clear that it is only an offence to fail to
comply with a notice without reasonable excuse. Existing paragraph 155(3)(b) requires
a notice to state that failing to comply is an offence but does not make it clear that
reasonable excuse is available.
Item 10 - Subsection 171(1)
Item 11 - Paragraph 171(1)(b)
22. Items 10 and 11 are consequential amendments to Item 12. Item 12 inserts new
subsections 171(2A), (2B), (2C) and (2D) which provide powers that an inspector may
exercise following their entry to a workplace. Existing provisions have been amended
for clarity.
Item 12 - After subsection 171(2)
23. Item 12 would insert new subsections 171(2A), (2B), (2C), (2D) and (2E).
24. New subsection 171(2A) would permit the inspector, within 30 days after the inspector
has entered the workplace under this Division, or any other inspector within this
timeframe, to give written notice to a person requiring the person to:
• produce specified documents within a specified period
• give written answers to specified questions within a specified period, or
Work Health and Safety 13 House of Representatives
Amendment Bill 2022
• require the person to attend before the inspector at a specified time and place to
answer any questions put by the inspector, including via audio or audiovisual link.
25. If an inspector gives a written notice requiring a person to attend before the inspector in
person, new subsection 171(2B) would allow the person to ask to attend before the
inspector by audio or audiovisual link. The inspector must agree to the request if it
would be reasonable in the circumstances. It may be reasonable, for example, because
the person will be in a geographically remote location at the time notified by the
inspector for attendance.
26. If an inspector gives a written notice requiring a person to attend before the inspector
by audio or audiovisual link, new subsection 171(2C) would allow the person to ask to
attend before the inspector in person. The inspector must agree to the request if it would
be reasonable in the circumstances.
27. New subsection 171(2D) would clarify that a requirement under new
subsection 171(2A) may only relate to a document or question relevant to the purpose
for which the workplace was entered. Section 164 of the WHS Act requires that an
inspector notify various persons of the purpose of the entry.
28. New subsection 171(2E) would provide that written notices under new
subsection 171(2A) may be served using any of the methods set out in section 209
(which specifies how notices under the Bill may be served). New subsection 171(2D)
would not apply to written notices under subsection 171(2).
29. The Bill would not specify the period of time to be given for compliance with a notice,
but it is intended that the time allowed must be reasonable taking into consideration all
of the circumstances giving rise to the request and the actions required by the notice.
30. The required information must be provided in a form that is capable of being
understood by the inspector, particularly in relation to electronically stored documents
(see for example section 25A of the Acts Interpretation Act 1901 (Cth)).
31. This amendment would implement recommendation 17 of the Boland Review, which
recommended that section 171 be amended to ensure the powers to require production
of documents and answers to questions can be exercised by any inspector within 30
days following an inspector's entry to that workplace.
Item 13 - Subsection 171(3)
32. Item 13 is a consequential amendment to Item 12 and would insert a reference to new
subsection 171(2A)(c).
Item 14 - At the end of section 172
33. Item 14 is a technical amendment.
34. New subsection 172(3) would clarify that section 172 (abrogation of privilege against
self-incrimination) does not apply to answering a question or providing information or
a document in response to a requirement made under a corresponding WHS law. The
purpose of this subsection is to remove doubt that, if a requirement arises under the
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Amendment Bill 2022
corresponding WHS law of a jurisdiction, it is section 172 of that corresponding WHS
law that applies. For example, if the regulator in New South Wales issues a notice
under section 155 of the New South Wales law to a person who is a worker under the
WHS Act, section 172 of the New South Wales law applies to the requirement.
Item 15 - Subsection 173(1)
35. Item 15 is a consequential amendment to Item 12 and would provide that the
requirement in subsection 173(1) does not apply to a notice issued under the new
subsection 171(2A).
36. Subsection 173(1) of the WHS Act sets out the steps an inspector must take before
requiring a person to produce a document or answer a question under Part 9 when they
are exercising powers at a workplace. An inspector must formally identify themselves
and warn the person that failing to answer a question or produce a document may
constitute an offence. These requirements would not apply to written notices issued
under new subsection 171(2A), which provides for an inspector to issue a written notice
within 30 days of entry to a workplace.
Item 16 - Paragraph 173(1)(b)
37. Item 16 is a technical amendment which aligns the wording in current 173(1)(b) with
wording of amendments in Item 9.
Item 17 - After subsection 173(1)
38. New subsection 173(1A) would set out requirements for a written notice issued under
new subsection 171(2A), which would be inserted by Item 12. A written notice under
this subsection must:
• state that the notice is given under subsection 171(2A)
• state the purpose of the entry to the workplace to which the notice relates
• contain a statement to the effect that it is an offence to refuse or fail to comply
with a requirement in the notice without reasonable excuse
• contain a statement about the effect of section 172 on the abrogation of
privilege against self-incrimination and section 269 which provides that the
WHS Act does not affect legal professional privilege, and
• if the notice requires the person to attend before an inspector--state that the
person may attend with a legal practitioner or other representative.
Item 18 - Subsection 173(2)
39. Item 18 is a consequential amendment to Item 12. It would not be an offence for an
individual to refuse to answer questions put to them in a notice issued under new
section 171(2A) if the notice does not include the warning mentioned in new subsection
173(1A)(d). Notices must include a statement about self-incrimination and legal
professional privilege.
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Amendment Bill 2022
Item 19 - Subsection 231(1)
Item 20 - After subsection 231(2)
40. Items 19 and 20 would implement recommendation 24 of the Boland Review, which
recommended that the 12-month deadline in which a person must make a request that a
regulator bring a prosecution in response to a Category 1 or 2 offence be removed. This
would allow a person to make a request within 18 months after the act, matter or thing
occurs, or within 6 months after a coronial report is made or the coronial inquest or
inquiry ends.
41. Section 231 provides for the review of a regulator's decision not to prosecute a serious
offence, that is, a Category 1 or Category 2 offence.
42. New subsections 231(1) and (1A) would allow a person who reasonably considers that
a Category 1 or 2 offence has been committed, or reasonably considers from a coronial
report or proceedings at a coronial inquiry or inquest that a Category 1 or 2 offence has
been committed, but where no prosecution has been brought to ask the regulator, in
writing, to bring a prosecution. Subsection 231(7) of the WHS Act clarifies that an
application may be made about the occurrence of, or failure in relation to, an act, matter
or thing.
43. New subsection 231(1B) would set out the timeframes in which a request to the
regulator must be made. The request can be made if no prosecution has been brought
between six and 18 months after the occurrence of the act, matter or thing, or within six
months after the coronial report is made or the coronial inquiry or inquest ends. The
note beneath this subsection clarifies that section 232 sets out the limitation period for
prosecutions which is 2 years after the offence first comes to the notice of the regulator.
The outer limit of 18 months for a request for prosecution to be made reflects the fact
that the regulator would need some time to commence a prosecution where the
limitation period is 2 years.
44. Subsection 231(2) sets out how and when the regulator must respond to a request made
in new subsection 231(1A). In particular, the regulator must provide a written response
to a request within three months and must advise the person whether a prosecution will
be brought and, if the decision has been made to not bring a prosecution, the reasons for
that decision.
45. New subsection 231(2A) would provide that, if the regulator advises that the
investigation is not complete, the regulator must provide written updates on the
progress of the investigation every three months until the investigation is complete. The
regulator is to decide what information they consider appropriate to provide for the
update. Once the investigation is complete, the regulator must advise the person
whether a prosecution will be brought and, if the decision has been made to not bring a
prosecution, the reasons for that decision.
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Amendment Bill 2022
Item 21 - Subsection 231(3)
46. Item 21 is a consequential amendment to Item 20 and would insert a reference to new
subsection 231(2A) into subsection 231(3).
Item 22 - Paragraph 271(3)(c)
47. Item 22 is a consequential amendment to Item 24 and it would repeal subparagraph
271(3)(c) which currently sets out exceptions to confidentiality provisions. The
exceptions listed in (c) would be provided for in new section 271A (Item 24).
circumstances where information obtained by the exercise of a power or function under
the WHS Act.
Item 23 - Paragraph 271(3)(e)
48. Item 23 is a technical amendment included to clarify that state and territory laws should
be treated in the same way as Commonwealth laws for the purposes of exceptions to the
confidentiality provisions.
Item 24 - After section 271
49. Item 24 would insert new section 271A.
50. New section 271A would set out circumstances in which the regulator, or a person
authorised by the regulator, may disclose information or give access to a document to
any other person, including a corresponding regulator, or otherwise use the information
or document.
51. New subsections 271A(2) and 271A(3) would allow disclosure, access or use of the
information or document in circumstances where the regulator reasonably believes this
is:
• necessary for administering, or monitoring or enforcing compliance with, the
WHS Act, or for the administration or enforcement of another Act prescribed
by the Regulations
• necessary for the administration or enforcement of another Act or law, if
necessary to lessen or prevent a serious risk to public health or safety
• necessary for the recognition of authorisations under a corresponding WHS
law, or
• required for the exercise of a power or function under a corresponding WHS
law.
52. New subsection 271A(4) would clarify that the section does not limit the operation of
paragraphs 271(3)(a), (b), (d), (e) or (f) which set out other exceptions to the
prohibition on disclosure.
53. This amendment would implement recommendation 19 of the Boland Review, which
recommended that the WHS Act include a specific power enabling regulators to share
information between jurisdictions in situations where it would aid them in performing
their functions.
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Amendment Bill 2022
54. Additional subsections (271A(5) and 271A(6)) are included to clarify that state and
territory laws should be treated in the same way as Commonwealth laws for the
purposes of exceptions to the confidentiality provisions. A reference to an "Act" or
"law" is taken to be a reference to an act or law in the Commonwealth, a state or
territory.
Item 25 - After section 272
55. Item 25 would insert new sections 272A and 272B.
56. New section 272A would prohibit insurance and other similar arrangements that cover
the costs of a monetary fine or penalty imposed on a person under the Bill.
57. New subsection 272A(1) would prohibit a person:
• entering an insurance contract or other arrangement
• providing insurance or an indemnity, or
• taking the benefit of an insurance contract, other arrangement or indemnity to
cover all or part of a liability for a monetary penalty under the Bill.
58. It is a defence if the person can show they had a reasonable excuse for entering the
contract or arrangement, providing the insurance or indemnity, or taking the benefit of
the contract, arrangement or indemnity. For example, a reasonable excuse may be that
the person granted the indemnity under duress, or entered the insurance contract based
on negligent legal advice that led them to reasonably believe the contract did not cover
monetary penalties under the Act. New subsection 272A(2) would provide that if
criminal proceedings are brought against a person for a contravention of the provision
the evidential burden is on the person (the defendant) to show they had a reasonable
excuse.
59. New subsection 272A(3) would make void any insurance contract or other arrangement
to the extent that it purports to cover a person for all or part of a liability for a monetary
penalty under the Bill. This is to ensure that a person cannot rely on a contract or
agreement that has been entered contrary to new subsection 272A(1). Although such
contracts may be held by a court to be void or unenforceable as contrary to public
policy, this provision makes the legal status of such contracts or arrangements clear.
60. New section 272B would create an offence that applies to officers (as defined in section
4 of the WHS Act) of a body corporate. The inclusion of a separate offence for officers
of a body corporate is intended to ensure greater deterrence by targeting the conduct of
individuals that results in a body corporate contravening new section 272A.
61. Under new section 272B, an officer of a body corporate would commit an offence if:
• the body corporate contravenes new section 272A
• the person is an officer of that body corporate, and
• the person is involved in the body corporate's contravention.
62. New subsection 272B(2) would clarify that an officer will be 'involved' in a
contravention if they have engaged in one of the acts listed in paragraphs (a) to (d) of
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Amendment Bill 2022
subsection 256(2). For example, the officer will be 'involved' if they aid or abet the
contravention or conspire with others to effect the contravention.
63. This amendment would implement recommendation 26 of the Boland Review, which
recommended that the WHS Act prohibit insurance that cover work health and safety
fines, by making it an offence where a person enters into a contract of insurance or
other arrangement under which the person or another person is covered for liability for
a monetary penalty under the WHS Act, provides insurance or a grant of indemnity for
liability for a monetary penalty, and takes the benefit of such insurance or such an
indemnity.
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Amendment Bill 2022