OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 3 Occupational health and safety

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OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 3

Occupational health and safety

Note: See section 637.

Part 1 -- Introduction

1 Objects

The objects of this Schedule are, in relation to facilities located in Commonwealth waters:

(a) to secure the health, safety and welfare of persons at or near those facilities; and

(b) to protect persons at or near those facilities from risks to health and safety arising out of activities being conducted at those facilities; and

(c) to ensure that expert advice is available on occupational health and safety matters in relation to those facilities; and

(d) to promote an occupational environment for members of the workforce at such facilities that is adapted to their needs relating to health and safety; and

(e) to foster a consultative relationship between all relevant persons concerning the health, safety and welfare of members of the workforce at those facilities.

2 Simplified outline

The following is a simplified outline of this Schedule:

• This Schedule sets up a scheme to regulate occupational health and safety matters at or near facilities located in Commonwealth waters.

• Occupational health and safety duties are imposed on the following:

(a) the operator of a facility;

(b) a person in control of a part of a facility, or of any work carried out at a facility;

(d) a manufacturer of plant, or a substance, for use at a facility;

(e) a supplier of a facility, or of any plant or substance for use at a facility;

(f) a person who erects or installs a facility, or any plant at a facility;

(g) a person at a facility.

• A group of members of the workforce at a facility may be established as a designated work group.

• The members of a designated work group may select a health and safety representative for that designated work group.

• The health and safety representative may exercise certain powers for the purpose of promoting or ensuring the health and safety of the group members.

• A NOPSEMA inspector may conduct an inspection:

(a) to ascertain whether a listed OHS law is being complied with; or

(b) concerning an accident or dangerous occurrence that has happened at or near a facility.

• The powers that a NOPSEMA inspector may exercise for the purposes of an OHS inspection are in addition to the powers in relation to listed OHS laws that the inspector may exercise for the purposes of Division 1 of Part 6.5 of this Act.

• The operator of a facility must report accidents and dangerous occurrences to NOPSEMA.

3 Definitions

In this Schedule, unless the contrary intention appears:

"accident" includes the contraction of a disease.

"associated offshore place" , in relation to a facility, means any offshore place near the facility where activities (including diving activities) relating to the construction, installation, operation, maintenance or decommissioning of the facility take place, but does not include:

(a) another facility; or

(b) a supply vessel, offtake tanker, anchor handler or tugboat; or

"Commonwealth waters" has the same meaning as in Part 6.9 of this Act.

"contract" includes an arrangement or understanding.

"contractor" has the meaning given by clause 8.

"contravention" , if the contravention is an offence, includes an offence against:

(a) section 6 of the Crimes Act 1914 ; or

(b) section 11.1, 11.4 or 11.5 of the Criminal Code ;

that relates to the first - mentioned offence.

"dangerous occurrence" means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition.

"data" includes:

(a) information in any form; and

(b) any program (or part of a program).

"data held in a computer" includes:

(a) data held in any removable data storage device for the time being held in a computer; and

(b) data held in a data storage device on a computer network of which the computer forms a part.

"data storage device" means a thing containing, or designed to contain, data for use by a computer.

"derived" :

(a) in relation to a petroleum title--has the meaning given by clause 8A; or

(b) in relation to a greenhouse gas title--has the meaning given by clause 8B.

"designated work group" means:

(a) a group of members of the workforce at a facility that is established as a designated work group under clause 19 or 20; or

(b) that group as varied in accordance with clause 21 or 22.

"eligible premises" means premises (within the ordinary meaning of that expression), and includes the following:

(a) a structure or building;

(b) a place that is enclosed;

"employee" , in relation to an employer, means an employee of that employer.

"employer" means an employer who carries on an activity at a facility.

"enter" , when used in relation to a vessel, includes board.

"facility" means a facility as defined by clause 4, and:

(a) includes a facility (as defined by clause 4) that is being constructed or installed; and

(b) except in the definition of associated offshore place , includes an associated offshore place in relation to a facility (as defined by clause 4).

"greenhouse gas title" means:

(a) a greenhouse gas assessment permit; or

(b) a greenhouse gas holding lease; or

"group member" , in relation to a designated work group at a facility, means a person who is:

(a) a member of the workforce at that facility; and

(b) included in that designated work group.

"health and safety requirement" : see clause 16A.

"master" , in relation to a vessel, means the person having command or charge of the vessel.

"member of the workforce" , in relation to a facility, means an individual who does work at the facility:

(a) whether as an employee of the operator of the facility or of another person; or

(b) whether as a contractor of the operator or of another person.

"offence against a listed OHS law" includes an offence against section 6 of the Crimes Act 1914 that relates to an offence against a listed OHS law.

Note: For other ancillary offences, see section 11.6 of the Criminal Code .

"offshore greenhouse gas storage operations" has the same meaning as in Part 6.9 of this Act.

"offshore petroleum operations" has the same meaning as in Part 6.9 of this Act.

"OHS do not disturb notice" has the meaning given by subclause 76(1).

"OHS improvement notice" has the meaning given by subclause 78(1).

"OHS inspection" : see clause 49.

"OHS prohibition notice" has the meaning given by subclause 77(1).

"operator" , in relation to a facility or proposed facility, has the meaning given by clause 5.

"operator's representative at a facility" means a person present at the facility in compliance with the obligations imposed on the operator by clause 6.

"own" includes own jointly or own in part.

"petroleum title" means:

(a) a petroleum exploration permit; or

(b) a petroleum retention lease; or

"plant" includes any machinery, equipment or tool, or any component.

"premises" has the same meaning as in the Regulatory Powers Act. This definition does not apply to the definition of eligible premises .

"proposed facility" means a facility proposed to be constructed, installed or operated.

"recovery" , in relation to petroleum, includes all processes directly or indirectly associated with its recovery. This definition does not, by implication, limit the meaning of the expression recovery when used in a provision of this Act other than this Schedule.

"registered organisation" means an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 .

"regulated business premises" means:

(a) a facility; or

(b) eligible premises that are:

(ia) on land; and

(i) occupied by a person who is the operator of a facility; and

(ii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations or offshore greenhouse gas storage operations; or

(i) on land; and

(ii) occupied by a related body corporate of the operator of a facility; and

(iii) used, or proposed to be used, wholly or principally in connection with the performance by the operator of the operator's obligations under this Schedule or prescribed regulations, or a prescribed provision of regulations, made under this Act, in relation to the health and safety of persons at or near the facility; or

(d) eligible premises that are:

(i) on land; and

(ii) occupied by a person who, under a contract with the operator of a facility, has carried out, is carrying out, or is to carry out, activities in connection with the performance by the operator of the operator's obligations under this Schedule or prescribed regulations, or a prescribed provision of regulations, made under this Act, in relation to the health and safety of persons at or near the facility; and

(iii) used, or proposed to be used, wholly or partly in connection with those activities; and

(iv) not used as a residence; or

(e) eligible premises that are:

(i) on land; and

(ii) occupied by a person who, under a contract with a related body corporate of the operator of a facility, has carried out, is carrying out, or is to carry out, activities in connection with the performance by the operator of the operator's obligations under this Schedule or prescribed regulations, or a prescribed provision of regulations, made under this Act, in relation to the health and safety of persons at or near the facility; and

(iii) used, or proposed to be used, wholly or partly in connection with those activities; and

(iv) not used as a residence; or

(f) eligible premises that are:

(i) on land; and

(ii) occupied by the registered holder of a title; and

(iii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations or offshore greenhouse gas storage operations; or

(g) eligible premises that are:

(i) on land; and

(ii) occupied by a related body corporate of the registered holder of a title; and

(iii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations or offshore greenhouse gas storage operations; or

(h) eligible premises that are:

(i) on land; and

(ii) occupied by a person who, under a contract with the registered holder of a title, has carried out, is carrying out, or is to carry out, in Commonwealth waters, offshore petroleum operations or offshore greenhouse gas storage operations; and

(iii) used, or proposed to be used, wholly or partly in connection with those operations; and

(iv) not used as a residence; or

(i) eligible premises that are:

(i) on land; and

(ii) occupied by a person who, under a contract with a related body corporate of the registered holder of a title, has carried out, is carrying out, or is to carry out, in Commonwealth waters, offshore petroleum operations or offshore greenhouse gas storage operations; and

(iii) used, or proposed to be used, wholly or partly in connection with those operations; and

(iv) not used as a residence.

Note: See also the definition of contract .

"regulations" means regulations made for the purposes of this Schedule.

"reviewing authority" means the Fair Work Commission.

"title" means:

(a) a petroleum title; or

(b) a greenhouse gas title.

"titleholder" means the registered holder of:

(a) a petroleum title; or

(b) a greenhouse gas title.

"titleholder's representative" , in relation to a titleholder within the meaning of this Schedule, has the meaning given by section 602K.

"titleholder's well-related obligations" means the obligations of a titleholder to comply with:

(a) clause 13A of this Schedule (petroleum titleholder duty of care); or

(b) prescribed regulations, or a prescribed provision of regulations, made under this Act; or

"work" means work offshore that is directly or indirectly related to the construction, installation, operation, maintenance or decommissioning of a facility.

"workforce" representative means:

(a) in relation to a person who is a member of the workforce at a facility--an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 , of which that person is a member, if the person is qualified to be a member of that organisation or association because of the work the person performs at the facility; or

(b) in relation to a designated work group or a proposed designated work group--an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 , of which a person who is, or who is likely to be, in the work group is a member, if the person is qualified to be a member of that organisation or association because of the work the person performs, or will perform, at a facility as a member of the group.

"work group employer" , in relation to a designated work group at a facility, means an employer of one or more group members, but does not include the operator of the facility.

"workplace" , in relation to a facility, means the whole facility or any part of the facility.

4 Facilities

Vessels or structures that are facilities--offshore petroleum operations

(1) A vessel or structure is taken to be a facility for the purposes of this Schedule while that vessel or structure:

(a) is located at a site in Commonwealth waters; and

(b) is being used, or prepared for use, at that site:

(i) for the recovery of petroleum, for the processing of petroleum, or for the storage and offloading of petroleum, or for any combination of those activities; or

(ii) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or

(iii) for drilling or servicing a well for petroleum or doing work associated with the drilling or servicing process; or

(iv) for laying pipes for petroleum, including any manufacturing of such pipes, or for doing work on an existing pipe; or

(v) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph of this paragraph; or

(vi) for any other purpose related to offshore petroleum operations that is prescribed for the purposes of this subparagraph.

(2) Subclause (1) applies to a vessel or structure:

(a) whether it is floating or fixed; and

(b) whether or not it is capable of independent navigation.

(3) Subclause (1) has effect subject to subclauses (6) and (7).

(4) A vessel or structure used for a purpose referred to in subparagraph (1)(b)(i) includes:

(a) any wells and associated plant and equipment by means of which petroleum processed or stored at the vessel or structure is recovered; and

(b) any pipe or system of pipes through which petroleum is conveyed from a well to the vessel or structure; and

(5) For the purposes of subclause (1), a vessel or structure that is located offshore for the purpose of laying pipes as described in subparagraph (1)(b)(iv) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds.

Vessels or structures that are facilities--offshore greenhouse gas storage operations

(5A) A vessel or structure is taken to be a facility for the purposes of this Schedule while that vessel or structure:

(a) is located at a site in Commonwealth waters; and

(b) is being used, or prepared for use, at that site:

(i) for the injection of a greenhouse gas substance into the seabed or subsoil; or

(ii) for the storage of a greenhouse gas substance in the seabed or subsoil; or

(iii) for the compression of a greenhouse gas substance; or

(iv) for the processing of a greenhouse gas substance; or

(v) for the pre - injection storage of a greenhouse gas substance; or

(vi) for the offloading of a greenhouse gas substance; or

(vii) for the monitoring of a greenhouse gas substance stored in the seabed or subsoil; or

(viii) for any combination of activities covered by any of the preceding subparagraphs; or

(ix) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or

(x) for drilling or servicing a well for injecting a greenhouse gas substance into the seabed or subsoil or doing work associated with the drilling or servicing process; or

(xi) for laying pipes for conveying a greenhouse gas substance, including any manufacturing of such pipes, or for doing work on an existing pipe; or

(xii) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph of this paragraph; or

(xiii) for any other purpose related to offshore greenhouse gas storage operations that is prescribed for the purposes of this subparagraph.

(5B) Subclause (5A) applies to a vessel or structure:

(a) whether it is floating or fixed; and

(b) whether or not it is capable of independent navigation.

(5C) Subclause (5A) has effect subject to subclauses (6) and (7).

(5D) A vessel or structure used for a purpose referred to in subparagraph (5A)(b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) includes:

(a) any wells and associated plant and equipment by means of which a greenhouse gas substance processed or temporarily stored at the vessel or structure is injected into the seabed or subsoil; and

(b) any pipe or system of pipes through which a greenhouse gas substance is conveyed from the vessel or structure to a well; and

(5E) For the purposes of subclause (5A), a vessel or structure that is located offshore for the purpose of laying pipes as described in subparagraph (5A)(b)(xi) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds.

Vessels or structures that are not facilities

(6) Despite subclauses (1) and (5A), a vessel or structure is taken not to be a facility for the purposes of this Schedule if the vessel or structure is:

(a) an offtake tanker; or

(b) a tug or an anchor handler; or

(d) a vessel or structure used for any purpose such that it is declared by the regulations not to be a facility.

Use for a particular purpose

(7) In determining when a vessel or structure that has the potential to be used for one or more of the purposes referred to in paragraph (1)(b) or (5A)(b) is in fact being so used, the vessel or structure is taken:

(a) to commence to be so used only at the time when it arrives at the site where it is to be so used and any activities necessary to make it operational at that site are begun; and

(b) to cease to be so used when operations cease, and the vessel or structure has been returned either to a navigable form or to a form in which it can be towed to another place.

Pipelines that are facilities

(8) Each of the following is taken to be a facility for the purposes of this Schedule:

(a) a pipeline subject to a pipeline licence;

(b) if a pipeline subject to a pipeline licence conveys petroleum recovered from a well without the petroleum having passed through another facility--that pipeline, together with:

(i) that well and associated plant and equipment; and

(ii) any pipe or system of pipes through which petroleum is conveyed from that well to that pipeline;

(c) if a pipeline subject to a pipeline licence conveys a greenhouse gas substance to a well without the greenhouse gas substance having passed through another facility--that pipeline, together with:

(i) that well and associated plant and equipment; and

(ii) any pipe or system of pipes through which a greenhouse gas substance is conveyed to that well from that pipeline.

(9) In paragraph (8)(b):

"facility" does not include a pipeline.

5 Operator of a facility or proposed facility

(1) For the purposes of this Schedule, the operator , in relation to a facility or proposed facility, is the person who, under the regulations, is registered by NOPSEMA as the operator of that facility or proposed facility.

(2) The regulations may authorise NOPSEMA to cancel the registration of a person as the operator of a facility or proposed facility.

6 Operator must ensure presence of operator's representative

Basic requirements

(1) The operator of a facility must ensure that, at all times when one or more individuals are present at a facility, there is also present an individual (the operator's representative at the facility ) who has day - to - day management and control of operations at the facility.

(2) The operator of a facility must take all reasonably practicable steps to ensure that the name of the operator's representative at the facility is displayed in a prominent place at the facility.

Offence

(3) A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subclause (1) or (2); and

(b) the person omits to do an act; and

Penalty: 50 penalty units.

Note: For strict liability, see section 6.1 of the Criminal Code .

Civil penalty

(4A) A person is liable to a civil penalty if the person contravenes a requirement under subclause (1) or (2).

Civil penalty: 135 penalty units.

Continuing offences

(4B) A person who commits an offence against subclause (3) commits a separate offence in respect of each day (including a day of a conviction under this clause or any later day) during which the offence continues.

(4C) The maximum penalty for each day that an offence under subclause (3) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Continuing contraventions of civil penalty provisions

(4D) A person who contravenes subclause (4A) commits a separate contravention in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

(4E) The maximum civil penalty for each day that a contravention of subclause (4A) continues is 10% of the maximum civil penalty that can be imposed in respect of that contravention.

Operators who are individuals

(5) Subclause (1) does not imply that, if the operator is an individual, the operator's representative at the facility may not be, from time to time, the operator.

7 Health and safety of persons using an accommodation facility

For the avoidance of doubt, a reference in this Schedule to the occupational health and safety of a person includes a reference to the health and safety of a person using an accommodation facility provided for the accommodation of persons working on another facility.

8 Contractor

For the purposes of this Schedule, if an individual does work at a facility under a contract for services between:

(a) a person (the relevant person ); and

(b) either:

(i) the individual; or

(ii) the employer of the individual;

the individual is taken to be a contractor of the relevant person.

8A When a petroleum title is derived from another petroleum title

Petroleum production licences

(1) For the purposes of this Schedule, if a petroleum production licence was granted to the registered holder of:

(a) a petroleum retention lease; or

(b) a petroleum exploration permit;

that was in force over the block or blocks to which the licence relates, the licence is derived from:

(d) each petroleum title from which the lease or permit referred to in paragraph (c) was derived.

Petroleum retention leases

(2) For the purposes of this Schedule, if a petroleum retention lease was granted to the registered holder of:

(a) a petroleum exploration permit; or

(b) a petroleum production licence;

that was in force over the block or blocks to which the lease relates, the lease is derived from:

(d) each petroleum title from which the permit or licence referred to in paragraph (c) was derived.

Renewals

(3) For the purposes of this Schedule, if there is a series of one or more renewals of a petroleum title, each petroleum title in that series is derived from:

(a) each of the earlier petroleum titles in that series; and

(b) each petroleum title from which each of those earlier petroleum titles was derived.

For this purpose, the series includes the original petroleum title.

Application

(4) Subclauses (1) and (2) apply to a grant, whether occurring before, at or after the commencement of this clause.

(5) Subclause (3) applies to a renewal, whether occurring before, at or after the commencement of this clause.

(6) For the purposes of the application of this clause to the grant of:

(a) a petroleum production licence; or

(b) a petroleum retention lease;

that occurred before the commencement of Chapter 2, a reference to a registered holder is a reference to a registered holder (within the meaning of the repealed Petroleum (Submerged Lands) Act 1967 ).

8B When a greenhouse gas title is derived from another greenhouse gas title

Greenhouse gas injection licences

(1) For the purposes of this Schedule, if a greenhouse gas injection licence was granted to the registered holder of:

(a) a greenhouse gas holding lease; or

(b) a greenhouse gas assessment permit;

that was in force over the block or blocks to which the licence relates, the licence is derived from:

(d) each greenhouse gas title from which the lease or permit referred to in paragraph (c) was derived.

Greenhouse gas holding leases

(2) For the purposes of this Schedule, if a greenhouse gas holding lease was granted to the registered holder of a greenhouse gas assessment permit that was in force over the block or blocks to which the lease relates, the lease is derived from:

(a) the permit; and

(b) each greenhouse gas title from which the permit referred to in paragraph (a) was derived.

Renewals

(3) For the purposes of this Schedule, if there is a series of one or more renewals of a greenhouse gas title, each greenhouse gas title in that series is derived from:

(a) each of the earlier greenhouse gas titles in that series; and

(b) each greenhouse gas title from which each of those earlier greenhouse gas titles was derived.

For this purpose, the series includes the original greenhouse gas title.

Application

(4) Subclauses (1) and (2) apply to a grant, whether occurring before, at or after the commencement of this clause.

(5) Subclause (3) applies to a renewal, whether occurring before, at or after the commencement of this clause.

Part 2 -- Occupational health and safety

Division 1 -- Duties relating to occupational health and safety

9 Duties of operator

General duties

(1) The operator of a facility must take all reasonably practicable steps to ensure that:

(a) the facility is safe and without risk to the health of any person at or near the facility; and

(b) all work and other activities carried out on the facility are carried out in a manner that is safe and without risk to the health of any person at or near the facility.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Specific duties

(2) The operator of a facility is taken to be subject, under subclause (1), to each of the following requirements:

(a) to take all reasonably practicable steps to provide and maintain a physical environment at the facility that is safe and without risk to health;

(b) to take all reasonably practicable steps to provide and maintain adequate facilities for the welfare of all members of the workforce at the facility;

(c) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances at the facility are safe and without risk to health;

(d) to take all reasonably practicable steps to implement and maintain systems of work at the facility that are safe and without risk to health;

(e) to take all reasonably practicable steps to implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies at the facility;

(f) to take all reasonably practicable steps to provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the health and safety of persons at the facility;

(g) to take all reasonably practicable steps to monitor the health and safety of all members of the workforce and keep records of that monitoring;

(h) to take all reasonably practicable steps to provide appropriate medical and first aid services at the facility;

(i) to take all reasonably practicable steps to develop, in consultation with:

(i) members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in those consultations--that workforce representative;

a policy, relating to occupational health and safety, that:

(iii) will enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational health and safety of persons at the facility; and

(iv) will provide adequate mechanisms for reviewing the effectiveness of the measures; and

(v) provides for the making of an agreement that complies with subclauses (5) and (6).

(3) Subclause (2) does not limit subclause (1).

Agreement

(5) The agreement referred to in subparagraph (2)(i)(v) must be between:

(a) on the one hand--the operator; and

(b) on the other hand:

(i) the members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be a party to that agreement--that workforce representative.

(6) The agreement referred to in subparagraph (2)(i)(v) must provide appropriate mechanisms for continuing consultation between:

(a) on the one hand--the operator; and

(b) on the other hand:

(i) the members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in consultations on a particular occasion--that workforce representative.

The agreement must provide for such other matters (if any) as are agreed between the parties to the agreement.

10 Duties of persons in control of parts of facility or particular work

General duties

(1) A person who is in control of any part of a facility, or of any particular work carried out at a facility, must take all reasonably practicable steps to ensure that:

(a) that part of the facility, or the place where that work is carried out, is safe and without risk to health; and

(b) if the person is in control of particular work--the work is carried out in a manner that is safe and without risk to health.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Specific duties

(2) A person who is in control of any part of a facility, or of any particular work carried out at a facility, is taken to be subject, under subclause (1), to each of the following requirements:

(a) to take all reasonably practicable steps to ensure that the physical environment at that part of the facility, or at the place where the work is carried out, is safe and without risk to health;

(b) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances at or near that part of the facility or that place, or used in that work, are safe and without risk to health;

(c) to take all reasonably practicable steps to implement and maintain systems of work at that part of the facility, or in carrying out work at that place, that are safe and without risk to health;

(d) to take all reasonably practicable steps to ensure a means of access to, and egress from, that part of the facility or that place that is safe and without risk to health;

(e) to take all reasonably practicable steps to provide all members of the workforce located at that part of the facility or engaged on that work, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

(3) Subclause (2) does not limit subclause (1).

11 Duties of employers

General duties in relation to employees

(1) An employer must take all reasonably practicable steps to protect the health and safety of employees at a facility.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Specific duties in relation to employees

(2) An employer is taken to be subject, under subclause (1), to each of the following requirements:

(a) to take all reasonably practicable steps to provide and maintain a working environment that is safe for employees and without risk to their health;

(b) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances used in connection with the employees' work are safe and without risk to health;

(c) to take all reasonably practicable steps to implement and maintain systems of work that are safe and without risk to health;

(d) to take all reasonably practicable steps to provide a means of access to, and egress from, the employees' work location that is safe and without risk to health;

(e) to take all reasonably practicable steps to provide the employees, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

(3) An employer is taken to be subject, under subclause (1), to each of the following requirements:

(a) to take all reasonably practicable steps to monitor the health and safety of employees;

(b) to take all reasonably practicable steps to keep records of that monitoring.

(4) Subclauses (2) and (3) do not limit subclause (1).

Duties in relation to contractors

(6) A person has, in relation to a contractor of that person, the same obligations that an employer has under subclauses (1) and (2) in relation to an employee of that employer, but only in relation to:

(a) matters over which the first - mentioned person has control; or

(b) matters over which:

(i) the first - mentioned person would have had control apart from express provision to the contrary in a contract; and

(ii) the first - mentioned person would, in the circumstances, usually be expected to have had control.

12 Duties of manufacturers in relation to plant and substances

Duties of manufacturer of plant

(1) A manufacturer of any plant that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps:

(a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the plant; and

(i) the use for which it is designed and has been tested; and

(ii) details of its design and construction; and

(iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Duties of manufacturer of substance

(2) A manufacturer of any substance that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps:

(a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the substance; and

(c) to make available, in connection with the use of the substance at a facility, adequate written information concerning:

(i) the use for which it is manufactured and has been tested; and

(ii) details of its composition; and

(iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and

(iv) the first aid and medical procedures that should be followed if the substance causes injury.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Importer deemed to be manufacturer

(4) For the purposes of this clause, if:

(a) plant or a substance is imported into Australia by a person who is not its manufacturer; and

(b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia;

the first - mentioned person is taken to be the manufacturer of the plant or substance.

Other laws not affected

(5) This clause does not affect the operation of the Competition and Consumer Act 2010 , or of any other law of the Commonwealth, a State or a Territory that imposes an obligation on a manufacturer in relation to defective goods or in relation to information to be supplied in relation to goods.

13 Duties of suppliers of facilities, plant and substances

Duties of supplier

(1) A supplier of a facility, or of any plant or substance that the supplier ought reasonably to expect will be used by members of the workforce at a facility, must take all reasonably practicable steps:

(a) to ensure that, at the time of supply, the facility, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health or safety that may arise from the condition of the facility, plant or substance; and

(i) in the case of a facility--to the operator of a facility; and

(ii) in the case of plant or substance--to the person to whom the plant or substance is supplied;

adequate written information, in connection with the use of the facility, plant or substance, as the case requires, about:

(iii) the condition of the facility, plant or substance at the time of supply; and

(iv) any risk to the health and safety of members of the workforce at the facility to which the condition of the facility, plant or substance may give rise unless it is properly used; and

(v) the steps that need to be taken in order to eliminate such risk; and

(vi) in the case of a substance--the first aid and medical procedures that should be followed if the condition of the substance causes injury to a member of the workforce at the facility.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Financing arrangements

(3) For the purposes of subclause (1), if a person (the ostensible supplier ) supplies to a person either a facility, or any plant or substance that is to be used by members of the workforce at a facility, and the ostensible supplier:

(a) carries on the business of financing the acquisition or the use of goods by other persons; and

(b) has, in the course of that business, acquired an interest in the facility, or in the plant or substance, from another person (the actual supplier ), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and

(c) has not taken possession of the facility, plant or substance, or has taken possession of the facility, plant or substance solely for the purpose of passing possession of the facility, plant or substance to the person to whom it is finally supplied;

a reference in subclause (1) to a supplier is, in relation to the facility, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier.

Other laws not affected

(4) This clause does not affect the operation of the Competition and Consumer Act 2010 , or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in relation to the sale or supply of goods or in relation to the information to be supplied in relation to goods.

13A Duties of petroleum titleholders in relation to wells

(1) If:

(a) either:

(i) a well has been used, is being used, has been prepared for use, or is being prepared for use, in connection with operations authorised by a petroleum title (the current title ); or

(ii) a well has been used in connection with operations authorised by a petroleum title from which the current title is derived, and the well is wholly or partly situated in the title area of the current title; and

(b) the well is not suspended, abandoned or closed off;

the registered holder of the current title must ensure that the well is so designed, constructed, commissioned, altered, equipped, maintained and operated that risks to the health and safety of persons at or near a facility from:

(d) any unplanned escape of fluids from the well; or

(e) anything in the well; or

(f) anything in a geological formation, or a part of a geological formation:

(i) to which the well is connected; or

(ii) through which the well passes;

are as low as is reasonably practicable.

Note 1: For derived , see clause 8A.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

(2) If:

(a) either:

(i) a well has been used in connection with operations authorised by a petroleum title (the current title ); or

(b) the well has been, is being, or is to be, suspended, abandoned or closed - off;

then the registered holder of the current title must ensure that the well is so suspended, abandoned or closed - off that risks to the health and safety of persons at or near a facility from:

(d) any unplanned escape of fluids from the well; or

(e) anything in the well; or

(f) anything in a geological formation, or a part of a geological formation:

(i) to which the well is connected; or

(ii) through which the well passes;

are as low as is reasonably practicable.

Note 1: For derived , see clause 8A.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Diving operations

(6) For the purposes of this clause, if a person is engaged in diving operations that are:

(a) offshore petroleum operations; or

(b) offshore greenhouse gas storage operations;

the person is taken to be at or near a facility.

Definitions

(7) In this clause:

"construct" , in relation to a well, includes:

(a) drill, bore, or otherwise make, the well; and

(b) install any well - related equipment associated with the well.

"prepare" includes construct.

"title area" :

(a) in relation to a petroleum exploration permit--means the permit area; or

(b) in relation to a petroleum retention lease--means the lease area; or

"well" includes well - related equipment associated with a well.

13B Duties of greenhouse gas titleholders in relation to wells

(1) If:

(a) either:

(i) a well has been used, is being used, has been prepared for use, or is being prepared for use, in connection with operations authorised by a greenhouse gas title (the current title ); or

(ii) a well has been used in connection with operations authorised by a greenhouse gas title from which the current title is derived, and the well is wholly or partly situated in the title area of the current title; and

(b) the well is not suspended, abandoned or closed off;

(d) any unplanned escape of fluids from the well; or

(e) anything in the well; or

(f) anything in a geological formation, or a part of a geological formation:

(i) to which the well is connected; or

(ii) through which the well passes;

are as low as is reasonably practicable.

Note: For derived , see clause 8B.

(2) If:

(a) either:

(i) a well has been used in connection with operations authorised by a greenhouse gas title (the current title ); or

(b) the well has been, is being, or is to be, suspended, abandoned or closed - off;

the registered holder of the current title must ensure that the well is so suspended, abandoned or closed - off that risks to the health and safety of persons at or near a facility from:

(d) any unplanned escape of fluids from the well; or

(e) anything in the well; or

(f) anything in a geological formation, or a part of a geological formation:

(i) to which the well is connected; or

(ii) through which the well passes;

are as low as is reasonably practicable.

Note: For derived , see clause 8B.

Offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under subclause (1) or (2); and

(b) the person omits to do an act; and

Penalty: 200 penalty units.

(4) Absolute liability applies to paragraph (3)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code .

(5) The fault element for paragraphs (3)(b) and (c) is negligence.

Diving operations

(6) For the purposes of this clause, if a person is engaged in diving operations that are:

(a) offshore petroleum operations; or

(b) offshore greenhouse gas storage operations;

the person is taken to be at or near a facility.

Definitions

(7) In this clause:

"construct" , in relation to a well, includes:

(a) drill, bore, or otherwise make, the well; and

(b) install any well - related equipment associated with the well.

"prepare" includes construct.

"title area" :

(a) in relation to a greenhouse gas assessment permit--means the permit area; or

(b) in relation to a greenhouse gas holding lease--means the lease area; or

"well" includes well - related equipment associated with a well.

14 Duties of persons erecting facilities or installing plant

Duties

(1) A person who erects or installs a facility, or erects or installs any plant at a facility, must take all reasonably practicable steps to ensure that the facility or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to health.

Note 1: See also clause 16.

Note 2: Breach of a requirement under this subclause is an offence: see Division 1A.

Other laws not affected

(3) This clause does not affect the operation of the Competition and Consumer Act 2010 , or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in relation to the erection or installation of goods or the supply of services.

15 Duties of persons in relation to occupational health and safety

Duties of person at a facility

(1) A person at a facility must, at all times, take all reasonably practicable steps:

(a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of that person or of any other person at or near the facility; and

(b) in respect of any obligation imposed on the operator or on any other person by or under a listed OHS law--to cooperate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation; and

(i) supplied to the person by the operator, an employer of the person or any other person having control of work at a facility (the equipment supplier ); and

(ii) necessary to protect the health and safety of the person, or of any other person at or near the facility;

in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment.

Note: Breach of a requirement under this subclause is an offence: see Division 1A.

Agreements

(3) Despite subclause (1), the choice or manner of use of equipment of the kind referred to in subparagraph (1)(c)(ii) is a matter that may be, consistently with each listed OHS law:

(a) agreed on between the equipment supplier and any relevant health and safety representative; or

(b) agreed on by a health and safety committee.

(4) If an agreement of the kind referred to in paragraph (3)(a) or (b) provides a process for choosing equipment of a particular kind that is to be provided by the equipment supplier, action must not be taken against a person for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process.

(5) If an agreement of the kind referred to in paragraph (3)(a) or (b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against a person for failure to use, in the manner required by the equipment supplier, equipment of that kind that is so provided unless the manner has been determined in accordance with that process.

16 Reliance on information supplied or results of research

Clause 9, 10 or 11

(1) For the purpose of the application of clause 9, 10 or 11 to the use of plant or a substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to the use of the plant or substance, to the extent that:

(a) the person ensured, so far as practicable, that its use was in accordance with the information supplied by the manufacturer or the supplier of the plant or substance relating to health and safety in its use; and

(b) it was reasonable for the person to rely on that information.

(2) Subclause (1) does not limit the generality of what constitutes reasonably practicable steps as required by clause 9, 10 or 11.

Clause 12 or 13

(3) For the purpose of the application of clause 12 or 13 to carrying out research, testing and examining a facility, or any plant or substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to carrying out research, testing and examining the facility, plant or substance, to the extent that:

(a) the research, testing or examination has already been carried out by or on behalf of someone else; and

(b) it was reasonable for the person to rely on that research, testing or examination.

(4) Subclause (3) does not limit the generality of what constitutes reasonably practicable steps as required by clause 12 or 13.

Clause 14

(5) For the purpose of the application of clause 14 to the erection of a facility or the erection or installation of plant at a facility, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires to the extent that:

(a) the person ensured, so far as is reasonably practicable, that the erection of the facility, or the erection or installation of the plant, was:

(i) in accordance with information supplied by the manufacturer or supplier of the facility or plant relating to its erection or its installation; and

(ii) consistent with the health and safety of persons at the facility; and

(b) it was reasonable for the person to rely on that information.

(6) Subclause (5) does not limit the generality of what constitutes reasonably practicable steps as required by clause 14.

Division 1A -- Occupational health and safety duties: enforcement

16A Meaning of health and safety requirement

In this Schedule:

"health and safety requirement" means a requirement under any of the following provisions:

(a) subclause 9(1) (duties of operator);

(b) subclause 10(1) (duties of persons in control of facility or particular work);

(d) subclause 12(1) or (2) (duties of manufacturers in relation to plant and substances);

(e) subclause 13(1) (duties of suppliers of facilities, plant and substances);

(f) subclause 13A(1) or (2) (duties of petroleum titleholders in relation to wells);

(g) subclause 14(1) (duties of persons erecting facilities or installing plant);

(h) subclause 15(1) (duties of persons in relation to occupational health and safety).

16B Occupational health and safety duties offence--recklessness

Offence

(1) A person commits an offence if:

(a) the person is subject to a health and safety requirement; and

(b) the person omits to do an act; and

Penalty: 3,500 penalty units.

Fault elements

(2) Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code .

(3) Recklessness applies to paragraphs (1)(b) and (c).

Note: For recklessness, see section 5.4 of the Criminal Code .

16C Occupational health and safety duties offence--negligence

Offence

(1) A person commits an offence if:

(a) the person is subject to a health and safety requirement; and

(b) the person omits to do an act; and

Penalty: 1,750 penalty units.

Fault elements

(2) Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code .

(3) Negligence applies to paragraphs (1)(b) and (c).

Note: For negligence, see section 5.5 of the Criminal Code .

Division 2 -- Regulations relating to occupational health and safety

17 Regulations relating to occupational health and safety

(1) The regulations may make provision relating to any matter affecting, or likely to affect, the occupational health and safety of persons at a facility.

(2) Subclause (1) has effect subject to this Schedule.

(3) Regulations made for the purposes of subclause (1) may make provision for any or all of the following:

(a) prohibiting or restricting the performance of all work or specified work at a facility;

(b) prohibiting or restricting the use of all plant or specified plant at a facility;

(d) prohibiting or restricting the storage or use of all substances or specified substances at a facility;

(e) specifying the form in which information required to be made available under paragraph 12(1)(c) or (2)(c) or 13(1)(c) of this Schedule is to be so made available;

(f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances at a facility;

(g) providing for:

(i) the issue, variation, renewal, transfer, suspension and cancellation of such licences; and

(ii) the conditions to which the licences may be subject;

(h) regulating the maintenance and testing of plant used at a facility;

(i) regulating the labelling or marking of substances used at a facility;

(j) regulating the transport of specified plant or specified substances for use at a facility;

(k) prohibiting the performance, at a facility, of specified activities or work except:

(i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or

(ii) under the supervision specified in the regulations;

(l) requiring specified action to avoid accidents or dangerous occurrences;

(m) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences;

(n) providing for the employment at a facility of persons to perform specified duties relating to the maintenance of occupational health and safety at the facility;

(o) regulating the provision and use, at a facility, of protective clothing and equipment, safety equipment and rescue equipment;

(p) providing for monitoring the health of members of the workforce at a facility and the conditions at the facility;

(q) requiring employers to keep records of matters related to the occupational health and safety of employees;

(r) providing for the provision of first aid equipment and facilities at facilities.

(4) Subclause (3) does not limit subclause (1).

(5) Regulations made for the purposes of this clause may make different provision in respect of different classes of facility.

(6) Subclause (5) does not limit subsection 33(3A) of the Acts Interpretation Act 1901 .

Part 3 -- Workplace arrangements

Division 1 -- Introduction

18 Simplified outline

The following is a simplified outline of this Part:

• A group of members of the workforce at a facility may be established as a designated work group.

• The members of a designated work group may select a health and safety representative for that designated work group.

• The health and safety representative may exercise certain powers for the purpose of promoting or ensuring the health and safety of the group members.

• A health and safety committee may be established in relation to the members of the workforce at a facility.

• The main function of a health and safety committee is to assist the operator in relation to occupational health and safety matters.

Division 2 -- Designated work groups

Subdivision A -- Establishment of designated work groups

19 Establishment of designated work groups by request

Request

(1) A request to the operator of a facility to enter into consultations to establish designated work groups in relation to the members of the workforce at the facility may be made by:

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator--that workforce representative.

Consultations

(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with:

(a) if any member of the workforce made a request to establish designated work groups:

(i) that member of the workforce; and

(ii) if that member requests that the operator enter into consultations with a workforce representative in relation to the member--that workforce representative; and

(iii) each employer (if any) of members of the workforce; and

(b) if a workforce representative made a request to establish designated work groups:

(i) if a member of the workforce requests that the operator enter into consultations with that workforce representative--that workforce representative; and

(ii) each employer of members of the workforce.

Establishment

(3) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

20 Establishment of designated work groups at initiative of operator

Consultations

(1) If, at any time, the operator of a facility considers that designated work groups should be established, the operator must enter into consultations with:

(a) all members of the workforce; and

(b) if a member of the workforce requests that the operator enter into consultations with a workforce representative in relation to the member--that workforce representative; and

Establishment

(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

Subdivision B -- Variation of designated work groups

21 Variation of designated work groups by request

Request

(1) A request to the operator of a facility to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce at the facility may be made by:

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator--that workforce representative.

Consultations

(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with:

(a) if any member of the workforce made a request to vary designated work groups:

(i) that member of the workforce; and

(ii) the health and safety representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation; and

(b) if a workforce representative made a request to vary designated work groups:

(i) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group--that workforce representative; and

(ii) the health and safety representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation.

Variation

(3) If:

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified;

then, within 14 days after the completion of the consultations, the operator must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.

22 Variation of designated work groups at initiative of operator

Consultations

(1) If the operator of a facility believes the designated work groups should be varied, the operator may, at any time, enter into consultations about the variations with:

(a) the health and safety representative of each of the designated work groups affected by the proposed variation; and

(b) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group--that workforce representative; and

Variation

(2) If:

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified;

Subdivision C -- General

23 Referral of disagreement to reviewing authority

(1) If, in the course of consultations under clause 19, 20, 21 or 22, there is a disagreement between any of the parties to the consultation about the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority.

(2) If the matter of disagreement is referred to the reviewing authority, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority.

24 Manner of grouping members of the workforce

(1) Consultations about the establishment or variation of a designated work group must be directed principally towards the determination of the manner of grouping members of the workforce:

(a) that best and most conveniently enables their interests relating to occupational health and safety to be represented and safeguarded; and

(b) that best takes account of the need for any health and safety representative selected for that designated work group to be accessible to each group member.

(2) The parties to the consultations must have regard, in particular, to:

(a) the number of members of the workforce at the facility to which the consultation relates; and

(b) the nature of each type of work performed by such members; and

(d) the workplaces where each type of work is performed; and

(e) the nature of any risks to health and safety at each such workplace; and

(f) any overtime or shift working arrangement at the facility.

(3) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce at a facility is in a designated work group.

(4) All the members of the workforce at a facility may be in one designated work group.

Division 3 -- Health and safety representatives

Subdivision A -- Selection of health and safety representatives

25 Selection of health and safety representatives

(1) One health and safety representative may be selected for each designated work group.

(2) A person is not eligible for selection as the health and safety representative for a designated work group unless the person is a member of the workforce included in the group.

(3) A person is taken to have been selected as the health and safety representative for a designated work group if:

(a) all the members of the workforce in the group unanimously agree to the selection; or

(b) the person is elected as the health and safety representative of the group in accordance with clause 26.

26 Election of health and safety representatives

Nominations

(1) If:

(a) there is a vacancy in the office of health and safety representative for a designated work group; and

(b) within a reasonable time after the vacancy occurs, a person has not been selected under paragraph 25(3)(a) of this Schedule;

the operator of the facility must invite nominations from all group members for election as the health and safety representative of the group.

(2) If the office of health and safety representative is vacant and the operator has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, NOPSEMA may direct the operator to do so.

Election--more than one candidate

(3) If there is more than one candidate for election at the close of the nomination period, the operator must conduct, or arrange for the conduct of, an election at the operator's expense.

(4) An election conducted or arranged to be conducted under subclause (3) must be conducted in accordance with regulations made for the purposes of this subclause if this is requested by the lesser of:

(a) 100 members of the workforce normally in the designated work group; or

(b) a majority of the members of the workforce normally in the designated work group.

Election--only one candidate

(5) If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected.

Disqualified person cannot be a candidate

(6) A person cannot be a candidate in the election if he or she is disqualified under clause 32.

Voting

(7) All the members of the workforce in the designated work group are entitled to vote in the election.

Directions

(8) An operator conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by NOPSEMA.

27 List of health and safety representatives

The operator of a facility must:

(a) prepare and keep up to date a list of all the health and safety representatives of designated work groups comprising members of the workforce performing work at the facility; and

(b) ensure that the list is available for inspection, at all reasonable times, by:

(i) the members of the workforce at the facility; and

(ii) NOPSEMA inspectors.

28 Members of designated work group must be notified of selection etc. of health and safety representative

The operator of a facility must:

(a) notify members of a designated work group in relation to the facility of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and

(b) notify those members of the name of any person selected (whether under paragraph 25(3)(a) or (b) of this Schedule) as health and safety representative for the designated work group within a reasonable time after the selection is made.

29 Term of office

(1) A health and safety representative for a designated work group holds office:

(a) if, in consultations that took place under clause 19, 20, 21 or 22, the parties to the consultations agreed to the period for which the health and safety representative for the group was to hold office--for such a period; or

(b) in any other case--for 2 years;

beginning at the start of the day on which he or she was selected.

(2) However, the health and safety representative is eligible to be selected for further terms of office.

(3) Subclauses (1) and (2) have effect subject to this Part.

30 Training of health and safety representatives

(1) A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by NOPSEMA for the purposes of this clause.

(2) The operator of the facility concerned must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.

(3) If a person other than the operator is the employer of the representative, that person must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.

31 Resignation etc. of health and safety representatives

When person must cease to be health and safety representative

(1) A person ceases to be the health and safety representative for the designated work group if:

(a) the person resigns as the health and safety representative; or

(b) the person ceases to be a group member of that designated work group; or

(c) the person's term of office expires without the person having been selected, under clause 25, to be the health and safety representative for the designated work group for a further term; or

(d) the person is disqualified under clause 32.

Resignation

(2) A person may resign as the health and safety representative for a designated work group by written notice delivered to the operator and to each work group employer.

(3) If a person resigns as the health and safety representative for a designated work group, the person must notify the resignation to the group members.

Notification

(4) If a person has ceased to be the health and safety representative for a designated work group because of paragraph (1)(b), the person must notify in writing:

(a) the group members; and

(b) the operator and each work group employer;

that the person has ceased to be the health and safety representative for that designated work group.

32 Disqualification of health and safety representatives

Application for disqualification

(1) An application for the disqualification of a health and safety representative for a designated work group may be made to NOPSEMA by:

(a) the operator; or

(b) a work group employer; or

(c) at the request of a group member of the designated work group--a workforce representative in relation to the designated work group.

Grounds for disqualification

(2) An application under subclause (1) may be made on either or both of the following grounds:

(a) that action taken by the health and safety representative in the exercise or purported exercise of a power under subclause 34(1) or any other provision of this Schedule was taken:

(i) with the intention of causing harm to the operator or work group employer or to an undertaking of the operator or work group employer; or

(ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the health and safety representative;

(b) that the health and safety representative has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a health and safety representative, information acquired from the operator or work group employer.

Disqualification

(3) If, on an application under subclause (1), NOPSEMA is satisfied that the health and safety representative has acted in a manner referred to in subclause (2), NOPSEMA may, after having regard to:

(a) the harm (if any) that was caused to the operator or work group employer or to an undertaking of the operator or work group employer as a result of the action of the representative; and

(b) the past record of the representative in exercising the powers of a health and safety representative; and

(d) such other matters as the Authority thinks relevant;

disqualify the representative, for a specified period not exceeding 5 years, from being a health and safety representative for any designated work group.

33 Deputy health and safety representatives

(1) One deputy health and safety representative may be selected for each designated work group for which a health and safety representative has been selected.

(2) A deputy health and safety representative is to be selected in the same way as a health and safety representative under clause 25.

(3) If the health and safety representative for a designated work group:

(a) ceases to be the health and safety representative; or

(b) is unable (because of absence or for any other reason) to exercise the powers of a health and safety representative;

then:

(d) this Schedule (other than this clause) applies in relation to the deputy health and safety representative accordingly.

Subdivision B -- Powers of health and safety representatives

34 Powers of health and safety representatives

(1) A health and safety representative for a designated work group in relation to a facility may, for the purpose of promoting or ensuring the health and safety at a workplace of the group members:

(a) do any or all of the following:

(i) inspect the whole or any part of the workplace if there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or if there is an immediate threat of such an accident or dangerous occurrence;

(ii) inspect the whole or any part of the workplace if the health and safety representative has given reasonable notice of the inspection to the operator's representative at the facility and to any other person having immediate control of the workplace;

(iii) make a request to a NOPSEMA inspector or to NOPSEMA that an OHS inspection be conducted at the workplace;

(iv) accompany a NOPSEMA inspector during any OHS inspection at the workplace by the inspector (whether or not the inspection is being conducted as a result of a request made by the health and safety representative);

(v) if there is no health and safety committee in relation to the members of the workforce at the facility--represent group members in consultations with the operator and any work group employer about the development, implementation and review of measures to ensure the health and safety of those members at the workplace;

(vi) if a health and safety committee has been established in relation to the members of the workforce at the facility--examine any of the records of that committee; and

(b) investigate complaints made by any group member to the health and safety representative about the health and safety of any of the members of the workforce (whether in the group or not); and

(c) with the consent of a group member, be present at any interview about health and safety at work between that member and:

(i) a NOPSEMA inspector; or

(ii) the operator or a person representing the operator; or

(iii) a work group employer or a person representing that employer; and

(d) obtain access to any information under the control of the operator or any work group employer:

(i) relating to risks to the health and safety of any group member; and

(ii) relating to the health and safety of any group member; and

(e) issue provisional OHS improvement notices in accordance with clause 38.

(2) Subparagraph (1)(d)(ii) has effect subject to clause 36.

35 Assistance by consultant

Assistance by consultant

(1) A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.

(2) A health and safety representative for a designated work group may:

(a) be assisted by a consultant at a workplace at which work is performed; or

(b) provide to a consultant information that has been provided to the health and safety representative by an operator or work group employer under paragraph 34(1)(d) of this Schedule;

only if the operator or NOPSEMA has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.

Operator etc. not liable for consultant's remuneration etc.

(3) Neither the operator nor any workplace employer becomes, because of the agreement under subclause (2) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant's activities.

Consultant may be present at interviews

(4) If a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, about health and safety at work, between a group member and:

(a) a NOPSEMA inspector; or

(b) the operator or any work group employer or a person representing the operator or that employer;

if, and only if, the group member consents to the presence of the consultant.

36 Information

Legal professional privilege

(1) Neither:

(a) the health and safety representative; nor

(b) if the health and safety representative is assisted by a consultant--the consultant;

is entitled, under subparagraph 34(1)(d)(ii) of this Schedule, to have access to information in relation to which a group member is entitled to claim, and does claim, legal professional privilege.

Medical information

(2) Neither:

(a) the health and safety representative; nor

(b) if the health and safety representative is assisted by a consultant--the consultant;

is entitled, under subparagraph 34(1)(d)(ii) of this Schedule, to have access to information of a confidential medical nature relating to a person who is or was a group member unless:

(c) the person has delivered to the operator or any work group employer a written authority permitting the health and safety representative, or the health and safety representative and the consultant, as the case requires, to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

37 Obligations and liabilities of health and safety representatives

This Schedule does not:

(a) impose an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or

(b) render a person liable in civil proceedings because of:

(i) a failure to exercise such a power; or

(ii) the way such a power was exercised.

38 Provisional OHS improvement notices--issue and notification

Consultation

(1) If:

(a) a health and safety representative for a designated work group believes, on reasonable grounds, that a person:

(i) is contravening a provision of a listed OHS law; or

(ii) has contravened a provision of a listed OHS law and is likely to contravene that provision again; and

(b) the contravention affects or may affect one or more group members;

the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.

Issue of provisional OHS improvement notice

(2) If, in the health and safety representative's opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional OHS improvement notice to any or all of the persons (each of whom is in this clause called a responsible person ) responsible for the contravention.

(3) If a responsible person is the operator, the notice may be issued to the operator by giving it to the operator's representative at the facility.

(4) If it is not practicable to issue the notice to a responsible person (other than the operator or the supervisor) by giving it to that responsible person:

(a) the notice may be issued to that responsible person by giving it to the person who for the time being is, or may reasonably be presumed to be, on behalf of the responsible person, in charge of the activity to which the notice relates; and

(b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards.

Content of provisional OHS improvement notice

(5) The notice must:

(a) specify the contravention that, in the health and safety representative's opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and

(b) specify a period that:

(i) is not less than 7 days beginning on the day after the notice is issued; and

(ii) is, in the representative's opinion, reasonable;

within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.

(6) The notice may specify action that the responsible person is to take during the period specified in the notice.

Extension of period

(7) If, in the health and safety representative's opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice.

Copy of provisional OHS improvement notice

(8) On issuing the notice, the health and safety representative must give a copy of the notice to:

(a) if the operator is not a responsible person--the operator; and

(b) each work group employer other than a work group employer who is a responsible person; and

(d) if the notice relates to any plant, substance or thing that is owned by a person other than a responsible person or a person to whom a copy of the notice is given under paragraph (a), (b) or (c)--that owner.

39 Provisional OHS improvement notices--effect

Request for OHS inspection

(1) Within 7 days after a notice is issued under clause 38:

(a) the responsible person; or

(b) any other person to whom a copy of the notice has been given under subclause 38(8);

may make a request to NOPSEMA or to a NOPSEMA inspector that an OHS inspection of the matter be conducted.

(2) Upon the request being made, the operation of the notice is suspended pending the determination of the matter by a NOPSEMA inspector.

OHS inspection

(3) As soon as possible after a request is made, an OHS inspection must be conducted of the work that is the subject of the disagreement, and the NOPSEMA inspector conducting the inspection must:

(a) confirm, vary or cancel the notice and notify the responsible person, and any person to whom a copy of the notice has been given under subclause 38(8), accordingly; and

(b) make such decisions, and exercise such powers, under Part 4 of this Schedule, as the NOPSEMA inspector considers necessary in relation to the work.

Variation of notice

(4) If the NOPSEMA inspector varies a notice, the notice as so varied has effect:

(a) so far as the notice concerns obligations imposed on the responsible person that are unaffected by the variation--as if the notice as so varied resumed effect on the day of the variation; and

(b) so far as the notice concerns new obligations imposed by virtue of the variation--as if the notice as so varied were a new notice issued on the day of the variation.

Notification etc.

(5) If the notice is issued to a responsible person, the responsible person must:

(a) notify each group member who is affected by the notice of the fact of the issue of the notice; and

(b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed.

When the notice ceases to have effect

(6) The notice ceases to have effect if:

(a) it is cancelled by a NOPSEMA inspector or by the health and safety representative; or

(b) the responsible person:

(i) takes such action (if any) as is specified in the notice; or

(ii) if no action is so specified--takes the action necessary to prevent the further contravention, or likely contravention, concerned.

Compliance with notice

(7) The responsible person:

(a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and

(b) must take reasonable steps to inform the health and safety representative who issued the notice of the action taken to comply with the notice.

Appeals

(8) For the purposes of clause 81, if the NOPSEMA inspector confirms or varies the notice, the NOPSEMA inspector is taken to have decided, under clause 78, to issue an OHS improvement notice in those terms.

Subdivision C -- Duties of the operator and other employers in relation to health and safety representatives

40 Duties of the operator and other employers in relation to health and safety representatives

Duties

(1) The operator of a facility, in relation to which a designated work group having a health and safety representative has been established, must:

(a) on being requested to do so by the representative, consult with the representative on the implementation of changes at any workplace at which some or all of the group members perform work, where the changes may affect their health and safety; and

(b) in relation to a workplace at which some or all of the group members perform work:

(i) permit the representative to make such inspection of the workplace as the representative is entitled to make in accordance with subparagraph 34(1)(a)(i) of this Schedule and to accompany a NOPSEMA inspector during an OHS inspection at the workplace by the inspector; and

(ii) if there is no health and safety committee in relation to the members of the workforce--on being requested to do so by the representative, consult with the representative about the development, implementation and review of measures to ensure the health and safety of group members; and

(c) permit the representative to be present at any interview at which the representative is entitled to be present under paragraph 34(1)(c); and

(d) provide to the representative access to any information to which the representative is entitled to obtain access under subparagraph 34(1)(d)(i) or (ii) of this Schedule and to which access has been requested; and

(e) permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to exercise the powers of a health and safety representative; and

(f) provide the representative with access to such facilities as are:

(i) prescribed for the purposes of this paragraph; or

(ii) necessary for the purposes of exercising the powers of a health and safety representative.

(2) Paragraph (1)(d) has effect subject to subclauses (3) and (4).

Information

(3) The operator must not permit a health and safety representative in relation to a designated work group to have access to information that:

(a) is of a confidential medical nature under the control of the operator; and

(b) relates to a person who is or was a group member;

unless:

(c) the person has delivered to the employer a written authority permitting the representative to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator is not required to give a health and safety representative access to any information in relation to which the operator is entitled to claim, and does claim, legal professional privilege.

Employer and supervisor

(5) The duties imposed by this clause on the operator in relation to the health and safety representative for a designated work group apply equally, to the extent that the matters to which the duties relate are within the control of a work group employer or of a supervisor of particular work, to that employer and to that supervisor.

Division 4 -- Health and safety committees

41 Health and safety committees

Establishment

(1) A health and safety committee must be established in relation to the members of the workforce at a facility if:

(a) the number of those members normally present at the facility is not less than 50 (whether or not those members are all at work at the facility at the same time); and

(b) the members of the workforce are included in one or more designated work groups; and

(c) the operator is requested to establish the committee by the health and safety representative for the designated work group or for one of the designated work groups.

Constitution

(2) The health and safety committee consists of:

(a) the number of members specified in an agreement reached between the operator and the members of the workforce; or

(b) if there is no such agreement--an equal number of:

(i) members, chosen by the members of the workforce, to represent the interests of members of the workforce; and

(ii) members, chosen by the operator, to represent the interests of the operator and the employers (other than the operator) of members of the workforce.

(3) The agreement referred to in paragraph (2)(a) may:

(a) specify the persons who are to be members to represent the interests of the operator and employers (other than the operator) of members of the workforce; and

(b) provide for the way in which persons who are to be members to represent the interests of members of the workforce are to be chosen.

Selection of members

(4) If regulations made for the purposes of this clause specify procedures for the selection of persons as members of health and safety committees, to represent the interests of members of the workforce, an agreement referred to in paragraph (2)(a) must not provide for such members to be chosen in a way inconsistent with the regulations.

Meetings

(5) A health and safety committee must hold meetings at least once every 3 months.

(6) The procedure at meetings of a health and safety committee must, except to the extent provided for by the regulations, be the procedure agreed upon by the committee.

(7) A health and safety committee must cause minutes of its meetings to be kept, and must retain those minutes for a period of not less than 3 years.

Other committees

(8) This clause does not prevent an operator from establishing, in consultation with members of the workforce or any other persons, committees concerned with occupational health and safety in relation to undertakings carried on by the operator.

42 Functions of health and safety committees

(1) A health and safety committee has the following functions:

(a) to assist the operator of the facility concerned:

(i) to develop and implement measures designed to protect; and

(ii) to review and update measures used to protect;

the health and safety at work of members of the workforce;

(b) to facilitate cooperation between the operator of the facility, employers (other than the operator) of members of the workforce, and members of the workforce, in relation to occupational health and safety matters;

(c) to assist the operator to disseminate among members of the workforce, in appropriate languages, information relating to health and safety at work;

(d) such functions as are prescribed;

(e) such other functions as are agreed upon between the operator and the health and safety committee.

(2) A health and safety committee has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(3) This Schedule does not:

(a) impose an obligation on a person to do any act, because the person is a member of a health and safety committee, in connection with the performance of a function conferred on the committee; or

(b) render such a person liable in civil proceedings because of:

(i) a failure to do such an act; or

(ii) the manner in which such an act was done.

43 Duties of the operator and other employers in relation to health and safety committees

Duties

(1) If there is a health and safety committee, the operator and any employer (other than the operator) of a member of the workforce must:

(a) make available to the committee any information possessed by the operator or that employer relating to risks to health and safety to members of the workforce; and

(b) permit any member of the committee who is a member of the workforce to take such time off work, without loss of remuneration or other entitlements, as is necessary for the member adequately to participate in the performance by the committee of its functions.

(2) Paragraph (1)(a) has effect subject to subclauses (3) and (4).

Information

(3) The operator or any employer (other than the operator) of a member of the workforce must not make available to a health and safety committee information of a confidential nature relating to a person who is or was a member of the workforce, unless:

(a) the person has authorised the information to be made available to the committee; or

(b) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator or any employer (other than the operator) of a member of the workforce is not required to make available to a health and safety committee any information in relation to which the operator or employer is entitled to claim, and does claim, legal professional privilege.

Division 5 -- Emergency procedures

44 Action by health and safety representatives

Imminent and serious danger to health or safety

(1) If a health and safety representative for a designated work group has reasonable cause to believe that there is an imminent and serious danger to the health or safety of any person at or near the facility unless a group member or group members cease to perform particular work, the representative must:

(a) inform a person (a supervisor ) supervising the group member or group members in the performance of the work of the danger; or

(b) if no supervisor can be contacted immediately:

(i) direct the group member or group members to cease, in a safe manner, to perform the work; and

(ii) as soon as practicable, inform a supervisor that the direction has been given.

(2) If a supervisor is informed under paragraph (1)(a) of a danger to the health or safety of any person at or near the facility, the supervisor must take such action as he or she thinks appropriate to remove that danger, and any such action may include directing a group member or group members to cease, in a safe manner, to perform the work.

(3) If:

(a) a health and safety representative has informed a supervisor under paragraph (1)(a) of a danger; and

(b) the representative has reasonable cause to believe that, despite any action taken by the supervisor in accordance with subclause (2), there continues to be an imminent and serious danger to the health or safety of any person at or near the facility unless the group member or group members cease to perform particular work;

the representative must:

(d) as soon as practicable, inform the supervisor that the direction has been given.

OHS inspection

(4) If:

(a) a health and safety representative gives a direction under paragraph (1)(b), but is unable to agree with a supervisor whom the representative has informed under that paragraph that there is a need for a direction under that paragraph; or

(b) a health and safety representative gives a direction under paragraph (3)(c);

the representative or the supervisor may make a request to NOPSEMA or to a NOPSEMA inspector that an OHS inspection be conducted of the work that is the subject of the direction.

(5) As soon as possible after a request is made, an OHS inspection must be conducted of the work that is the subject of the direction, and the NOPSEMA inspector conducting the inspection must make such decisions, and exercise such powers, under Part 4 of this Schedule as the inspector considers necessary in relation to the work.

(6) This clause does not limit the power of a health and safety representative under subparagraph 34(1)(a)(iii) of this Schedule to make a request to NOPSEMA or to a NOPSEMA inspector that an OHS inspection be conducted at the workplace.

45 Direction to perform other work

Scope

(1) This clause applies if:

(a) a group member who is an employee has ceased to perform work, in accordance with the direction of a health and safety representative under paragraph 44(1)(b) or (3)(c); and

(b) the cessation of work does not continue after:

(i) the health and safety representative has agreed with a person supervising work at the workplace where the work was being performed that the cessation of work was not, or is no longer, necessary; or

(ii) a NOPSEMA inspector has, under subclause 44(5), made a decision to the effect that the employee should perform the work.

Direction to perform other work

(2) The employer may direct the employee to perform suitable alternative work, and the employee is to be taken, for all purposes, to be required to perform that other work under the terms and conditions of the employee's employment.

Division 6 -- Exemptions

46 Exemptions

(1) NOPSEMA may, in accordance with the regulations, make a written order exempting a specified person from any or all of the provisions of this Part (other than this clause).

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(2) NOPSEMA must not make an order under subclause (1) unless it is satisfied on reasonable grounds that it is impracticable for the person to comply with the provision or provisions.

(3) An order under subclause (1) is a legislative instrument.

Part 4 -- OHS inspections

Division 1 -- Introduction

47 Simplified outline

The following is a simplified outline of this Part:

• A NOPSEMA inspector may conduct an inspection (called an OHS inspection ):

(a) to monitor compliance with listed OHS laws; or

(b) concerning an accident or dangerous occurrence that has happened at or near a facility.

• A number of additional compliance powers are provided. The most significant of these are as follows:

(a) to issue an OHS do not disturb notice to deal with health and safety risks or to allow for measurements or tests to be carried out;

(b) to issue an OHS prohibition notice to remove an immediate threat to health or safety;

(c) to issue an OHS improvement notice specifying action to be taken to remove a risk to health or safety that may result from the continuation or recurrence of a contravention of a listed OHS law.

• A NOPSEMA inspector must prepare a report about an inspection and give the report to NOPSEMA.

Division 2 -- OHS inspections: general provisions

49 OHS inspections--nature of inspections

What is an OHS inspection ?

(1) An OHS inspection is an inspection under this Part. Such an inspection:

(a) includes an investigation or inquiry; and

(b) need not include a physical inspection of any facility, premises or thing.

Inspections--general power

(2) A NOPSEMA inspector may, at any time, conduct an OHS inspection:

(a) to determine whether a listed OHS law has been, or is being, complied with; or

(b) to determine whether information given in compliance, or purported compliance, with a listed OHS law is correct; or

The inspection may be conducted at the inspector's own initiative or in compliance with a direction under subclause (3).

Inspections--directed by NOPSEMA

(3) NOPSEMA may give a written direction to a NOPSEMA inspector to conduct an OHS inspection.

(4) The NOPSEMA inspector must conduct an OHS inspection as directed under subclause (3).

50 OHS inspections--facilities

Power to enter and search

(1) A NOPSEMA inspector may, for the purposes of an OHS inspection, at any reasonable time during the day or night:

(a) enter a facility to which the inspection relates and do any or all of the following:

(i) search the facility;

(ii) inspect, examine or measure, or conduct tests concerning, the facility (including any workplace at the facility and any plant, substance or thing at the facility);

(iii) take photographs of, make video recordings of, or make sketches of, the facility (including any workplace at the facility and any plant, substance or thing at the facility);

(iv) inspect, take extracts from, or make copies of, any documents at the facility that the inspector is satisfied on reasonable grounds relate, or are likely to relate, to the subject matter of the inspection;

(v) exercise the powers conferred by clause 74 in relation to the OHS inspection;

(vi) exercise the powers conferred by clause 75 in relation to the OHS inspection; and

(b) inspect the seabed and subsoil in the vicinity of a facility to which the inspection relates.

Notification of entry

(2) Immediately on entering a facility for the purposes of an OHS inspection, a NOPSEMA inspector must take reasonable steps to notify the purpose of the entry to each of the following (an occupier ):

(a) the operator's representative at the facility;

(b) if there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection--that representative;

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

(2A) The inspector must, on being requested to do so by an occupier, produce for inspection by the occupier:

(a) the inspector's identity card; and

(b) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and

Consultation with health and safety representative

(3) If there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection, the inspector must give the health and safety representative a reasonable opportunity to consult on the matter the subject of the inspection.

51 OHS inspections--regulated business premises (non - facilities)

Power to enter and search

(1) A NOPSEMA inspector may, for the purposes of an OHS inspection:

(a) at any reasonable time, enter any regulated business premises (other than a facility) if the inspector is satisfied on reasonable grounds that there are likely to be at those premises plant, substances, documents or things that relate to:

(i) a facility that is, or facility operations that are, the subject of the inspection; or

(ii) the titleholder's well - related obligations; and

(b) search those premises for any such plant, substances, documents or things at those premises; and

(d) inspect, examine or measure, or conduct tests concerning, any such plant, substances or things at those premises; and

(e) take photographs of, make video recordings of, or make sketches of, any such plant, substances or things at those premises; and

(f) exercise the powers conferred by clause 74 in relation to the OHS inspection; and

(g) exercise the powers conferred by clause 75 in relation to the OHS inspection.

Notification of entry

(2) Immediately on entering regulated business premises (other than a facility) for the purposes of an OHS inspection, a NOPSEMA inspector must take reasonable steps to notify the purpose of the entry to:

(a) in the case of an inspection at regulated business premises that are occupied by the operator of a facility--a person representing the operator; or

(b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--a person representing the related body corporate; or

(c) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(d) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (e)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(e) in the case of an inspection at regulated business premises that are occupied by the registered holder of a title--a person representing the registered holder; or

(f) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--a person representing the related body corporate; or

(g) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (h)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(h) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (i)(ii) of the definition of regulated business premises in clause 3--a person representing the person.

(3) The inspector must, on being requested to do so by the person required to be notified under subclause (2), produce for inspection by the person:

(a) the inspector's identity card; and

(b) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and

54 OHS inspections--obstructing or hindering NOPSEMA inspector

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct obstructs or hinders a NOPSEMA inspector in the exercise of the inspector's powers under clause 50 or 51.

Penalty: 60 penalty units.

(1A) A person is liable for a civil penalty if the person obstructs or hinders a NOPSEMA inspector in the exercise of the inspector's powers under clause 50 or 51.

Civil penalty: 135 penalty units.

(2) Subclause (1) or (1A) does not apply if the person has a reasonable excuse.

Note 1: In proceedings for an offence against subclause (1), the defendant bears an evidential burden in relation to the matter in subclause (2): see subsection 13.3(3) of the Criminal Code . The same applies in proceedings for a civil penalty under subclause (1A).

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

Note 3: The same conduct may be an offence against both subclause (1) of this clause and section 149.1 of the Criminal Code .

Division 3 -- OHS inspections: compliance powers

73 OHS inspections--power to require assistance

Requirement to provide assistance

(1) A NOPSEMA inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of an OHS inspection, require:

(a) the operator of a facility; or

(b) the person in charge of operations at a workplace in relation to a facility; or

(ca) a titleholder; or

(d) any person representing a person referred to in paragraph (a) or (b); or

(da) the titleholder's representative (if any) at a facility who is nominated for the inspection;

to provide the inspector with reasonable assistance and facilities:

(e) that is or are reasonably connected with the conduct of the inspection at or near the facility; or

(f) for the effective exercise of the inspector's powers in connection with the conduct of the inspection at or near the facility.

(2) The reasonable assistance referred to in subclause (1) includes, so far as the operator of the facility is concerned:

(a) appropriate transport to or from the facility for the inspector and for any equipment required by the inspector, or any thing of which the inspector has taken possession; and

(b) reasonable accommodation and means of subsistence while the inspector is at the facility.

Offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under this clause; and

(b) the person omits to do an act; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

(4) Subclause (3) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (4)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

Titleholders and their representatives--limitation on requirements

(5) Paragraphs (1)(ca) and (da), which give inspectors certain powers in relation to titleholders and their representatives, do not apply unless the inspection wholly or partly concerns the titleholder's well - related obligations.

74 OHS inspections--powers to require information, and the production of documents and things

Requirement to answer questions

(1) If:

(a) a NOPSEMA inspector is satisfied on reasonable grounds that a person is capable of answering a question that is reasonably connected with the conduct of an OHS inspection; and

(b) the person is:

(i) the operator of a facility; or

(ii) the person in charge of operations at a workplace in relation to a facility; or

(iii) a member of the workforce at a facility; or

(iiia) a titleholder; or

(iv) any person representing a person referred to in subparagraph (i) or (ii); or

(v) in the case of an inspection at a facility--the titleholder's representative (if any) at the facility who is nominated for the inspection, or anyone engaged in petroleum or greenhouse gas activities at the facility; or

(va) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--a person representing the related body corporate; or

(vb) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(vc) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (e)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(vd) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--a person representing the related body corporate; or

(ve) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (h)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(vf) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (i)(ii) of the definition of regulated business premises in clause 3--a person representing the person; or

(vi) in the case of an inspection at a place other than a facility--any person representing the titleholder;

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to answer the question put by the inspector.

(2) If, at the time when a requirement under subclause (1) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement:

(a) is in writing; and

(b) specifies the day on or before which the question is to be answered; and

The day specified under paragraph (b) must be at least 14 days after the day on which the requirement is imposed.

Requirement to produce documents or things

(3) If:

(a) a NOPSEMA inspector is satisfied on reasonable grounds that a person is capable of producing a document or thing that is reasonably connected with the conduct of an OHS inspection; and

(b) the person is:

(i) the operator of a facility; or

(ii) the person in charge of operations at a workplace in relation to a facility; or

(iii) a member of the workforce at a facility; or

(iiia) a titleholder; or

(iv) any person representing a person referred to in subparagraph (i) or (ii); or

(va) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--a person representing the related body corporate; or

(vi) in the case of an inspection at a place other than a facility--any person representing the titleholder;

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to produce the document or thing.

(4) If, at the time when a requirement under subclause (3) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement:

(a) is in writing; and

(b) specifies the day on or before which the document or thing is to be produced; and

The day specified under paragraph (b) must be at least 14 days after the day on which the requirement is imposed.

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under this clause; and

(b) the person omits to do an act; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

(6) Subclause (5) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (6)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

False information

(7) A person commits an offence if:

(a) the person gives information to another person; and

(b) the person does so knowing that the information is false or misleading in a material particular; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

Note: The same conduct may be an offence against both subclause (7) of this clause and section 137.1 of the Criminal Code .

Self - incrimination

(8) A person is not excused from answering a question or producing a document or thing when required to do so under subclause (1) or (3) on the ground that the answer to the question, or the production of the document or thing, may tend to incriminate the person or make the person liable to a penalty.

(9) However, in the case of an individual:

(a) the answer given or document or thing produced; or

(b) answering the question or producing the document or thing; or

(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or the production of the document or thing;

is not admissible in evidence against the individual:

(d) in any civil proceedings; or

(e) in any criminal proceedings other than:

(i) proceedings for an offence against this clause; or

(ii) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this clause.

Titleholders and their representatives--limitation on requirements

(10) Subparagraphs (1)(b)(v) and (vi) and (3)(b)(v) and (vi), which give inspectors certain powers in relation to titleholders and their representatives, do not apply unless the inspection wholly or partly concerns compliance with the titleholder's well - related obligations.

NOPSEMA inspector may retain documents

(11) A NOPSEMA inspector may take possession of a document produced under this clause, and retain it for as long as is reasonably necessary.

(12) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a NOPSEMA inspector to be a true copy.

(13) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(14) Until a certified copy is supplied, a NOPSEMA inspector must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, the document.

NOPSEMA inspector may retain other things

(15) A NOPSEMA inspector may take possession of a thing (other than a document) produced under this clause, and retain it for as long as is reasonably necessary.

Notice--taking possession at facility

(16) On taking possession of a thing under subclause (15) at a facility, the NOPSEMA inspector must, by written notice, inform:

(a) the operator of the facility; and

(b) the operator's representative at the facility; and

(c) if the inspection is wholly or partly in relation to the titleholder's well - related obligations--the titleholder; and

(d) if the inspection is wholly or partly in relation to the titleholder's well - related obligations--the titleholder's representative (if any) at the facility who is nominated for the inspection; and

(e) if the thing is used for the performance of work by an employer (other than the operator) of a member or members of the workforce at the facility--that employer; and

(f) if the thing is owned by a person other than a person mentioned in paragraph (a), (b), (c), (d) or (e)--that person; and

(g) if there is a health and safety representative for a designated work group that includes a member of the workforce who is affected by the matter to which the inspection relates--that representative;

of the taking of possession, and the reasons for it.

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

Display of notice at facility

(17) If the NOPSEMA inspector gives the notice to the operator of the facility to which the inspection relates, the operator's representative at the facility must cause the notice to be displayed in a prominent place at the workplace from which the thing was removed.

Notice--taking possession otherwise than at facility

(18) On taking possession of a thing under subclause (15) otherwise than at a facility, the NOPSEMA inspector must, by written notice, inform the owner of the thing of the taking of possession, and the reasons for it.

Inspection of thing

(19) If:

(a) a NOPSEMA inspector has taken possession of a thing (other than a document) produced under this clause; and

(b) it is reasonably necessary for the NOPSEMA inspector to retain the thing;

the NOPSEMA inspector must provide:

(d) the person who owns the thing; and

(e) a person authorised by a person covered by paragraph (c) or (d);

reasonable access to the thing for the purposes of inspecting the thing.

Return of thing

(20) If:

(a) a NOPSEMA inspector has taken possession of a thing (other than a document) produced under this clause; and

(b) it is no longer reasonably necessary for the NOPSEMA inspector to retain the thing;

the NOPSEMA inspector must return the thing to:

(d) the person who owns the thing; or

(e) a person authorised by a person covered by paragraph (c) or (d).

75 OHS inspections--power to take possession of plant and samples etc.

Power to take possession or samples

(1) In conducting an OHS inspection at regulated business premises, a NOPSEMA inspector may, to the extent that it is reasonably necessary for the purposes of inspecting, examining, taking measurements of, or conducting tests concerning, any plant, substance or thing at those premises in connection with the inspection:

(a) take possession of the plant, substance or thing and remove it from those premises; or

(b) take a sample of the substance or thing and remove that sample from those premises.

Notice

(2) On taking possession of plant, a substance or a thing, or taking a sample of a substance or thing, in connection with an OHS inspection at a facility, the inspector must, by written notice, inform:

(a) the operator of the facility; and

(b) if the plant, substance or thing is used for the performance of work by an employer (other than the operator) of a member or members of the workforce at the facility--that employer; and

(c) if the plant, substance or thing is owned by a person other than a person mentioned in paragraph (a) or (b)--that person; and

(d) if there is a health and safety representative for a designated work group that includes a member of the workforce who is affected by the matter to which the inspection relates--that representative; and

(e) the titleholder's representative (if any) at the facility who is nominated for the inspection;

of the taking of possession or the taking of the sample, and the reasons for it.

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

(2A) On taking possession of plant, a substance or a thing, or taking a sample of a substance or thing, in connection with an OHS inspection at regulated business premises (other than a facility), the inspector must, by written notice, inform:

(a) in the case of an inspection at regulated business premises that are occupied by the operator of a facility--a person representing the operator; or

(b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--a person representing the related body corporate; or

(e) in the case of an inspection at regulated business premises that are occupied by the registered holder of a title--a person representing the registered holder; or

(f) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--a person representing the related body corporate; or

(i) if the plant, a substance or a thing is owned by a person other than a person mentioned in any of the preceding paragraphs--that owner;

of the taking of possession or the taking of the sample, and the reasons for it.

Display of notice

(3) If the OHS inspection is at a facility, and the inspector gives the notice to the operator of the facility to which the inspection relates, the operator's representative at the facility must cause the notice to be displayed in a prominent place at the workplace from which the plant, substance or thing was removed.

Duties of inspector

(4) If the OHS inspection is at a facility, and the inspector takes possession of plant, a substance or a thing at a workplace for the purpose of inspecting, examining, taking measurements of, or conducting tests concerning, the plant, substance or thing, the inspector must:

(a) ensure that the inspection, examination, measuring or testing is conducted as soon as practicable; and

(b) return it to the workplace as soon as practicable afterwards.

(5) As soon as practicable after completing any such inspection, examination, measurement or testing, the inspector must give a written statement setting out the results to each person whom the inspector is required to notify under subclause (2).

(6) If the OHS inspection is at regulated business premises (other than a facility), and the inspector takes possession of plant, a substance or a thing at the premises for the purpose of inspecting, examining, taking measurements of, or conducting tests concerning, the plant, substance or thing, the inspector must:

(a) ensure that the inspection, examination, measuring or testing is conducted as soon as practicable; and

(b) return it to a representative of the occupier of the premises as soon as practicable afterwards.

(7) As soon as practicable after completing any such inspection, examination, measurement or testing, the inspector must give a written statement setting out the results to each person whom the inspector is required to notify under subclause (2A).

76 OHS inspections--OHS do not disturb notices (general)

When a notice may be issued

(1) A NOPSEMA inspector may issue a notice (an OHS do not disturb notice ), in writing, under this clause if, in conducting an OHS inspection in relation to a facility, the inspector is satisfied on reasonable grounds that it is reasonably necessary to issue the notice in order to:

(a) remove an immediate threat to the health or safety of any person; or

(b) allow the inspection, examination or measurement of, or the conducting of tests concerning:

(i) the facility; or

(ii) particular plant, or a particular substance or thing, at the facility.

Issue of notice

(2) The notice may be issued to either or both of the following persons (the responsible person ) as applicable:

(a) in any case--the operator;

(b) if the inspection wholly or partly concerns compliance with the titleholder's well - related obligations--the titleholder.

(3) Without limiting subclause (2), the notice may be issued to a responsible person as follows:

(a) if the operator is a responsible person--by being given to the operator's representative at the facility;

(b) if the titleholder is a responsible person--by being given to the titleholder's representative (if any) at the facility who is nominated for the inspection.

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

Contents of notice

(4) The notice must:

(a) direct the responsible person to take all reasonably practicable steps to ensure that one or more of the following are not disturbed for a period specified in the notice:

(i) a particular workplace;

(ii) particular plant, or a particular substance or thing, at the facility; and

(b) set out the reasons for the inspector's decision to issue the notice.

(5) The period specified in the notice must be a period that the inspector is satisfied on reasonable grounds is necessary in order to allow the inspection, examination, measuring or testing to take place.

Renewal of notice

(6) The notice may be renewed by another notice in the same terms.

Offence

(7) A person commits an offence if:

(a) the person is subject to an OHS do not disturb notice; and

(b) the person omits to do an act; and

Penalty for contravention of subclause (7): 300 penalty units.

76A OHS inspections--OHS do not disturb notices (notification and display)

Scope

(1) This clause applies if a NOPSEMA inspector issues an OHS do not disturb notice to a person (the responsible person ) under clause 76.

Notification to interested persons

(2) If the only responsible person for the notice is the titleholder, as soon as practicable after issuing the notice, the inspector must take reasonable steps to give a copy of the notice to:

(a) the operator; and

(b) if the inspector is at the facility when the notice is issued--the operator's representative at the facility.

(3) If the notice (or a copy of the notice) is not given to the operator's representative at the facility, the operator must give a copy of the notice to the operator's representative.

(4) The operator's representative at the facility must give a copy of the notice to the following persons:

(a) if the workplace, plant, substance or thing to which the direction relates is owned by a person other than the operator of the facility--that owner;

(b) if there is a health and safety representative for a designated work group that includes a group member performing work at a workplace, or involving the plant, substance or thing, to which the direction relates--that representative.

Display of notice

(5) The operator's representative at the facility must cause a copy of the notice to be displayed in a prominent place at the workplace:

(a) that is to be left undisturbed; or

(b) where the plant, substance or thing that is to be left undisturbed is located.

77 OHS inspections--OHS prohibition notices (issue)

When a notice may be issued

(1) A NOPSEMA inspector may issue a notice (an OHS prohibition notice ), in writing, under this clause if, in conducting an OHS inspection in relation to a facility, the inspector is satisfied on reasonable grounds that:

(a) either:

(i) an activity is occurring at the facility that involves an immediate threat to the health or safety of a person; or

(ii) an activity may occur at the facility that, if it occurred, would involve an immediate threat to the health or safety of a person; and

(b) it is reasonably necessary to issue the notice in order to remove the threat.

Note: The notice will be published on NOPSEMA's website (see clause 80AA).

Responsible person for the notice

(2) The notice may be issued to either or both of the following (the responsible person ), as applicable:

(a) in any case--the operator;

(b) if the inspection wholly or partly concerns compliance with the titleholder's well - related obligations--the titleholder.

(3) Without limiting subclause (2), the notice may be issued to a responsible person as follows:

(a) if the operator is a responsible person--by being given to the operator's representative at the facility;

(b) if the titleholder is a responsible person--by being given to the titleholder's representative (if any) at the facility who is nominated for the inspection.

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

Contents of notice

(4) The notice must:

(a) specify the activity mentioned in subparagraph (1)(a)(i) or (ii); and

(b) set out the reasons for the inspector's satisfaction about the circumstances mentioned in subparagraph (1)(a)(i) or (ii); and

(i) direct the operator to ensure that the activity is not conducted; or

(ii) direct the operator to ensure that the activity is not conducted in a specified manner; and

(d) if the responsible person is the titleholder--either:

(i) direct the titleholder to ensure that the activity is not conducted; or

(ii) direct the titleholder to ensure that the activity is not conducted in a specified manner.

(5) For paragraph (4)(c) or (d), a specified manner may relate to any one or more of the following:

(a) any workplace, or part of a workplace, at which the activity is not to be conducted;

(b) any plant, substance or thing that is not to be used in connection with the activity;

(6) The notice may specify action that may be taken to satisfy a NOPSEMA inspector that adequate action has been taken to remove the threat to health or safety.

Offence

(7) A person commits an offence if:

(a) the person is subject to an OHS prohibition notice; and

(b) the person omits to do an act; and

Penalty for contravention of subclause (7): 600 penalty units.

Continuing offences

(8) A person who commits an offence against subclause (7) commits a separate offence in respect of each day (including a day of a conviction under this clause or any later day) during which the offence continues.

(9) The maximum penalty for each day that an offence under subclause (7) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

77A OHS inspections--OHS prohibition notices (notification, display and compliance)

Scope

(1) This clause applies if a NOPSEMA inspector issues an OHS prohibition notice to a person (the responsible person ) under clause 77 in relation to a threat to health or safety at a facility.

Notification to interested persons

(2) If the only responsible person for an OHS prohibition notice is the titleholder, as soon as practicable after issuing the notice, the inspector must take reasonable steps to give a copy of the notice to:

(a) the operator; and

(b) if the inspector is at the facility when the notice is issued--the operator's representative at the facility.

(3) If the notice (or a copy of the notice) is not given to the operator's representative at the facility, the operator must give a copy of the notice to the operator's representative.

(4) The operator's representative at the facility must give a copy of the notice to the following persons:

(a) if the workplace, plant, substance or thing to which the notice relates is owned by a person other than the responsible person--that owner;

Display of notice

(5) The operator's representative at the facility must cause a copy of the notice to be displayed in a prominent place at the workplace:

(a) that is to be left undisturbed; or

(b) where the plant, substance or thing that is to be left undisturbed is located.

Inadequate action in response to notice

(6) If a NOPSEMA inspector is satisfied that action taken by the responsible person to remove the threat to health or safety is not adequate, the inspector must inform the responsible person accordingly.

(7) In making a decision under subclause (6), a NOPSEMA inspector may exercise such of the powers of a NOPSEMA inspector conducting an OHS inspection as the inspector considers necessary for the purposes of making the decision.

When notice ceases to have effect

(8) The notice ceases to have effect in relation to a responsible person when a NOPSEMA inspector notifies the responsible person that the inspector is satisfied that the responsible person, or another person, has taken adequate action to remove the threat to health or safety.

78 OHS inspections--OHS improvement notices (issue)

When a notice may be issued

(1) A NOPSEMA inspector may issue a notice (an OHS improvement notice ) to a person (the responsible person ), in writing, under this clause if, in conducting an OHS inspection in relation to a facility, the inspector is satisfied on reasonable grounds that:

(a) the responsible person:

(i) is contravening a provision of a listed OHS law; or

(ii) has contravened a provision of a listed OHS law and is likely to contravene that provision again; and

(b) as a result, there is, or may be, a risk to the health or safety of any person.

Note: The notice will be published on NOPSEMA's website (see clause 80AA).

How notice may be issued

(2) Without limiting subclause (1), the notice may be issued to a responsible person as follows:

(a) if the responsible person is the operator--by being given to the operator's representative at the facility;

(b) if the responsible person is an employer (other than the operator) of members of the workforce, but it is not practicable to give the notice to the employer--by being given to the operator's representative at the facility;

(c) if the responsible person is the titleholder--by being given to the titleholder's representative (if any) at the facility who is nominated for the inspection.

Note: A titleholder's representative is only required to be at the facility if the inspection concerns the titleholder's well - related obligations (see section 602K).

Contents of notice

(3) The notice must:

(a) specify the contravention that the NOPSEMA inspector is satisfied on reasonable grounds is occurring, or has occurred and is likely to occur again, and set out those grounds; and

(b) specify the risk to health or safety mentioned in paragraph (1)(b); and

(c) specify action that the inspector is satisfied on reasonable grounds is required to be taken by the responsible person to reduce or prevent the risk; and

(d) specify a period within which the responsible person is to take the action.

Period of notice and action to be taken

(4) The period specified in the notice must be reasonable.

(5) If the NOPSEMA inspector is satisfied on reasonable grounds that it is appropriate to do so, the NOPSEMA inspector may, in writing and before the end of the period, extend the period specified in the notice.

78A OHS inspections--OHS improvement notices (compliance)

Duty of responsible person

(1) A responsible person in relation to an OHS improvement notice must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control.

Offence

(2) A person commits an offence if:

(a) the person is subject to a requirement under subclause (1); and

(b) the person omits to do an act; and

Penalty: 300 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes a requirement under subclause (1).

Civil penalty: 400 penalty units.

Continuing offences and continuing contraventions of civil penalty provisions

(4) The maximum penalty for each day that an offence under subclause (2) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note: Subclause (2) is a continuing offence under section 4K of the Crimes Act 1914 .

(5) The maximum civil penalty for each day that a contravention of subclause (3) continues is 10% of the maximum civil penalty that can be imposed in respect of that contravention.

Note: Subclause (3) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

78B OHS inspections--OHS improvement notices (notification and display)

Scope

(1) This clause applies if a NOPSEMA inspector issues an OHS improvement notice to a person (the responsible person ) under clause 78 in relation to a contravention, or likely contravention, of a listed OHS law.

If notice not given to the operator's representative--representative to be notified

(2) If the notice is not issued by being given to the operator's representative at the facility, the responsible person (unless the responsible person is the titleholder) must cause a copy of the notice to be given to the operator's representative.

Note: If the responsible person is the titleholder, subclauses (4) and (5) provide for the operator and the operator's representative to be notified.

If responsible person is operator or employer--notification of health and safety representative

(3) If the responsible person is the operator or an employer (other than the operator) of members of the workforce, the operator's representative at the facility must give a copy of the notice to each health and safety representative for a designated work group having group members performing work that is affected by the notice.

If responsible person is titleholder--notification of operator and operator's representative

(4) If the responsible person is the titleholder, as soon as practicable after issuing the notice, the inspector must take reasonable steps to give a copy of the notice to:

(a) the operator; and

(b) if the inspector is at the facility when the notice is issued--the operator's representative at the facility.

(5) If the responsible person is the titleholder, but the inspector is not at the facility when the notice is issued, the operator must give a copy of the notice to the operator's representative at the facility.

Display of notice

(6) The operator's representative at the facility must cause a copy of the notice to be displayed in a prominent place at or near each workplace at which work affected by the notice is being performed.

NOPSEMA to notify employer, owner etc.

(7) As soon as practicable after issuing the notice, the NOPSEMA inspector must take reasonable steps to give a copy of the notice to:

(a) the employer of an employee who is a member of the workforce, if the notice is issued:

(i) to the employee; and

(ii) in connection with work performed by the employee; and

(b) the owner of any workplace, plant, substance or thing that the notice relates to, unless the owner is:

(i) the responsible person; or

(ii) an employer referred to in paragraph (a); and

(c) if the responsible person is the owner of any workplace, plant, substance or thing because of which the contravention has occurred, or is likely to occur:

(i) the operator of the facility; and

(ii) if the employer of employees who work in that workplace or who use that plant, substance or thing is a person other than the operator--that employer; and

(d) the titleholder, if:

(i) the responsible person is the operator; and

(ii) the contravention relates, or is likely to relate, to the titleholder's well - related obligations.

79 OHS inspections--tampering with and removal of notices

Tampering with notice

(1) A person must not tamper with any notice that has been displayed under subclause 74(17), 75(3), 76A(5), 77A(5) or 78B(6) while that notice is so displayed.

Removal of notice

(1A) If a notice has been displayed under subclause 74(17), a person must not remove the notice until the thing to which the notice relates is returned under subclause 74(20).

(2) If a notice has been displayed under subclause 75(3), a person must not remove the notice until the plant, substance or thing to which the notice relates is returned to the workplace from which it was removed.

(3) If a notice has been displayed under subclause 76A(5), 77A(5) or 78B(6), a person must not remove the notice before the notice has ceased to have effect in relation to each person subject to the notice.

Offence

(4) A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subclause (1), (1A), (2) or (3); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

Note: For strict liability, see section 6.1 of the Criminal Code .

(5) Subclause (4) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (5)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

80AA OHS inspections--publishing OHS prohibition notices and OHS improvement notices

(1) NOPSEMA must publish on its website an OHS prohibition notice or an OHS improvement notice within 21 days after the notice is issued.

(2) However, NOPSEMA must not publish the notice if it is aware that the decision to issue the notice is the subject of an application for an appeal to the reviewing authority or review by a court.

(3) If the notice is published on the NOPSEMA website and the decision to issue the notice is, or becomes, the subject of an application for an appeal to the reviewing authority or review by a court, NOPSEMA must remove the notice from the website as soon as practicable after becoming aware of the application.

(4) Subject to subsection (5), NOPSEMA must publish the notice on its website within 21 days after becoming aware that the decision to issue the notice has been affirmed or upheld and all appeal and review rights in relation to that decision have been exhausted.

(5) If the reviewing authority revokes the decision to issue the notice, and substitutes its own decision to issue a notice (the substituted notice ), NOPSEMA must publish the substituted notice on its website within 21 days after becoming aware that all appeal and review rights in relation to the decision to issue the substituted notice have been exhausted.

(6) If the notice contains personal information (within the meaning of the Privacy Act 1988 ), NOPSEMA must take such steps as are reasonable in the circumstances to ensure that the information is de - identified before the notice is published.

(7) Personal information is de - identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.

Division 4 -- Reports: OHS inspections etc.

80 Reports on listed OHS law inspections

Scope

(1A) This section applies if a NOPSEMA inspector has conducted either of the following inspections in relation to a listed OHS law:

(a) an OHS inspection (under this Part);

(b) an inspection for the purposes of Division 1 of Part 6.5 of this Act.

Report to be given to NOPSEMA

(1) The inspector must, as soon as practicable, prepare a written report relating to the inspection and give the report to NOPSEMA.

(2) The report must include:

(a) the inspector's conclusions from conducting the inspection and the reasons for those conclusions; and

(b) any recommendations that the inspector wishes to make arising from the inspection; and

Copies of report to be given to operator and owner etc.

(3) As soon as practicable after receiving the report, NOPSEMA must give a copy of the report, together with any written comments that it wishes to make:

(a) if the report relates to a facility--to the operator of the facility; and

(aa) if the report relates wholly or partly to a titleholder's well - related obligations--to the titleholder; and

(b) if the report relates to activities performed by an employee of another person--to that other person; and

Details of remedial action etc.

(4) NOPSEMA may, in writing, request the operator, the titleholder or any other person to whom a copy of the report is given to provide to NOPSEMA, within a reasonable period specified in the request, details of:

(a) any action proposed to be taken as a result of the conclusions or recommendations contained in the report; and

(b) if a notice has been issued under clause 77 or 78 in relation to work being performed for the operator, the titleholder or that other person--any action taken, or proposed to be taken, in respect of that notice;

and the operator, the titleholder or that other person must comply with the request.

Copies of report etc. to be given to health and safety committee etc.

(5) As soon as practicable after receiving a report, the operator of a facility must give a copy of the report, together with any written comment made by NOPSEMA on the report:

(a) if there is a least one health and safety committee in respect of some or all of the members of the workforce--to each such committee; and

(b) if there is no such committee in respect of some or all of the members of the workforce, but some or all of those members (in respect of which there is no such committee) are in at least one designated work group for which there is a health and safety representative--to each such health and safety representative.

Division 5 -- Appeals: OHS inspections etc.

80A Appeals concerning OHS inspections etc.--decisions subject to appeal

Scope

(1) The following table has effect in relation to a decision by a NOPSEMA inspector:

(a) in any case--in conducting an OHS inspection; or

(b) for items 4 to 8 of the table--in relation to the issue of an OHS do not disturb notice, an OHS prohibition notice or an OHS improvement notice under section 602E (after entering premises under Part 3 of the Regulatory Powers Act as applied under Division 1 of Part 6.5 of this Act).

Decisions subject to appeal
Item
If the inspector makes the following decision ...
the following persons may appeal against the decision to the reviewing authority by written notice ...
1
A decision to confirm or vary a provisional OHS improvement notice, under clause 39
(a) a person to whom the provisional OHS improvement notice was issued under subclause 38(2);
(b) the operator of the facility;
(c) a titleholder, if the notice relates to the titleholder's well - related obligations;
(d) an employer, if affected by the decision;
(e) a relevant health and safety representative;
(f) a relevant workforce representative, if requested by a member of the workforce affected by the decision;
(g) a person who owns any workplace, plant, substance or thing to which the decision relates.
2
A decision to cancel a provisional OHS improvement notice, under clause 39
(a) a relevant health and safety representative;
(b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
3
A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at a facility under clause 75
(a) the operator of the facility;
(b) a titleholder, if the reasons stated in the notice under subclause 75(2) relate to the titleholder's well - related obligations;
(c) an employer, if affected by the decision;
(d) a relevant health and safety representative;
(e) a relevant workforce representative, if requested by a member of the workforce affected by the decision;
(f) a person who owns the workplace, plant, substance or thing.
3A
A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at regulated business premises (other than a facility) under clause 75
(a) in the case of an inspection at regulated business premises that are occupied by the operator of a facility--the operator of the facility;
(b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--the related body corporate;
(c) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 3--the person;
(d) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (e)(ii) of the definition of regulated business premises in clause 3--the person;
(e) a titleholder, if the reasons stated in the notice under subclause 75(2A) relate to the titleholder's well - related obligations;
(f) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--the related body corporate;
(g) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (h)(ii) of the definition of regulated business premises in clause 3--the person;
(h) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (i)(ii) of the definition of regulated business premises in clause 3--the person;
(i) a person who owns the plant, substance or thing.
4
Either of the following:
(a) a decision to issue an OHS do not disturb notice, under clause 76;
(b) a decision to exercise the corresponding power under section 602E.
(a) the operator of the facility;
(b) a titleholder, if the notice is issued to the titleholder;
(c) an employer, if affected by the decision;
(d) a relevant health and safety representative;
(e) a relevant workforce representative, if requested by a member of the workforce affected by the decision;
(f) a person who owns the workplace, plant, substance or thing.
5
Either of the following:
(a) a decision to issue an OHS prohibition notice, under clause 77;
(b) a decision to exercise the corresponding power under section 602E.
(a) the operator of the facility;
(b) a titleholder, if the notice is issued to the titleholder;
(c) an employer, if affected by the decision;
(d) a relevant health and safety representative;
(e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
6
Either of the following:
(a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has not taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(6);
(b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.
(a) the operator of the facility;
(b) a titleholder, if the notice is issued to the titleholder;
(c) an employer, if affected by the decision;
(d) a relevant health and safety representative;
(e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
7
Either of the following:
(a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(8);
(b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.
(a) a relevant health and safety representative;
(b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
8
Either of the following:
(a) a decision to issue an OHS improvement notice, under clause 78;
(b) a decision to exercise the corresponding power under section 602E.
(a) the operator of the facility;
(b) the titleholder, if the notice is issued to the titleholder;
(c) any other person to whom the notice is issued;
(d) an employer, if affected by the decision;
(e) a relevant health and safety representative;
(f) a relevant workforce representative, if requested by a member of the workforce affected by the decision;
(g) a person who owns any workplace, plant, substance or thing to which the decision relates.

Decisions subject to appeal
1	A decision to confirm or vary a provisional OHS improvement notice, under clause 39	(a) a person to whom the provisional OHS improvement notice was issued under subclause 38(2); (b) the operator of the facility; (c) a titleholder, if the notice relates to the titleholder's well - related obligations; (d) an employer, if affected by the decision; (e) a relevant health and safety representative; (f) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (g) a person who owns any workplace, plant, substance or thing to which the decision relates.
2	A decision to cancel a provisional OHS improvement notice, under clause 39	(a) a relevant health and safety representative; (b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
3	A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at a facility under clause 75	(a) the operator of the facility; (b) a titleholder, if the reasons stated in the notice under subclause 75(2) relate to the titleholder's well - related obligations; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (f) a person who owns the workplace, plant, substance or thing.
3A	A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at regulated business premises (other than a facility) under clause 75	(a) in the case of an inspection at regulated business premises that are occupied by the operator of a facility--the operator of the facility; (b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--the related body corporate; (c) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 3--the person; (d) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (e)(ii) of the definition of regulated business premises in clause 3--the person; (e) a titleholder, if the reasons stated in the notice under subclause 75(2A) relate to the titleholder's well - related obligations; (f) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--the related body corporate; (g) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (h)(ii) of the definition of regulated business premises in clause 3--the person; (h) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (i)(ii) of the definition of regulated business premises in clause 3--the person; (i) a person who owns the plant, substance or thing.
4	Either of the following: (a) a decision to issue an OHS do not disturb notice, under clause 76; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (f) a person who owns the workplace, plant, substance or thing.
5	Either of the following: (a) a decision to issue an OHS prohibition notice, under clause 77; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
6	Either of the following: (a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has not taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(6); (b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
7	Either of the following: (a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(8); (b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.	(a) a relevant health and safety representative; (b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
8	Either of the following: (a) a decision to issue an OHS improvement notice, under clause 78; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) the titleholder, if the notice is issued to the titleholder; (c) any other person to whom the notice is issued; (d) an employer, if affected by the decision; (e) a relevant health and safety representative; (f) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (g) a person who owns any workplace, plant, substance or thing to which the decision relates.

(2) In this clause:

"relevant health and safety representative" , in relation to a decision, means the health and safety representative for a designated work group having a member affected by the decision.

"relevant workforce representative" , in relation to a member of the workforce affected by a decision, means:

(a) a workforce representative in relation to a designated work group, if the member of the workforce is a group member; or

(b) if there is no designated work group in relation to the member of the workforce--any workforce representative in relation to the member.

81 Appeals concerning OHS inspections etc.--associated rules and procedure

Appeal does not affect the operation of a decision

(3) Subject to this clause, the making of an appeal under this Division against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Suspension of OHS improvement notices

(4) If the decision appealed against is a decision to which item 8 of the table in subclause 80A(1) applies, the operation of the decision is suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

Note: Item 8 of the table in subclause 80A(1) applies to a decision to issue an OHS improvement notice, or to exercise a corresponding power under section 602E.

(5) If the decision appealed against is a decision of a NOPSEMA inspector, under clause 39, to confirm or vary a provisional OHS improvement notice whose operation has been suspended pending the inspection of the matter to which the notice relates, the operation of the notice is further suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

Reviewing authority's decision on appeal

(6) The reviewing authority may:

(a) affirm or revoke the decision appealed against under this Division; and

(b) if it revokes the decision--substitute such other decision as it thinks appropriate.

(7) If the decision is:

(a) varied; or

(b) revoked; or

the decision is taken to have effect, and always to have had effect, accordingly.

(7A) An appeal against a decision is to be determined on the basis of the circumstances which prevailed at the time the decision was made.

Inspector's duty to return plant etc. to the workplace

(8) If:

(a) the decision appealed against is a decision under clause 75 to take possession of plant, a substance or a thing at a workplace; and

(b) the decision is not affirmed;

the inspector who made the decision must ensure that, to the extent that the decision is not affirmed, the plant, substance or thing is returned to the workplace as soon as practicable.

Part 5 -- General provisions

82 Notifying and reporting accidents and dangerous occurrences

Duty of operator to notify accidents and dangerous occurrences

(1) If, at or near a facility, there is:

(a) an accident that causes the death of, or serious injury to, any individual; or

(b) an accident that causes a member of the workforce to be incapacitated from performing work for a period prescribed for the purposes of this paragraph; or

the operator must, in accordance with the regulations, give NOPSEMA notice of the accident or dangerous occurrence.

(2) Regulations made for the purposes of subclause (1) (other than regulations made for the purposes of paragraph (1)(b)) may prescribe:

(a) the time within which, and the manner in which, notice of an accident or dangerous occurrence is to be given; and

(b) the form of such a notice.

(3) Subclause (2) does not limit regulations that may be made for the purposes of subclause (1).

(4) A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subclause (1); and

(b) the person omits to do an act; and

Penalty: 250 penalty units.

Note: For strict liability, see section 6.1 of the Criminal Code .

Duty of operator to report accidents and dangerous occurrences

(6) If, at or near a facility, there is:

(a) an accident that causes the death of, or serious injury to, any individual; or

(b) an accident that causes a member of the workforce to be incapacitated from performing work for a period prescribed for the purposes of this paragraph; or

the operator must, in accordance with the regulations, give NOPSEMA a report about the accident or dangerous occurrence.

(7) Regulations made for the purposes of subclause (6) (other than regulations made for the purposes of paragraph (6)(b)) may prescribe:

(a) the time within which, and the manner in which, a report of an accident or dangerous occurrence is to be given; and

(b) the form of such a report.

(8) Subclause (7) does not limit regulations that may be made for the purposes of subclause (6).

Offence

(9) A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subclause (6); and

(b) the person omits to do an act; and

Penalty: 100 penalty units.

Note: For strict liability, see section 6.1 of the Criminal Code .

Continuing offences

(10) A person who commits an offence against subclause (4) or (9) commits a separate offence in respect of each day (including a day of a conviction under that subclause or any later day) during which the offence continues.

(11) The maximum penalty for each day that an offence under subclause (4) or (9) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

83 Records of accidents and dangerous occurrences to be kept

Duty of operator

(1) The operator of a facility must maintain, in accordance with the regulations, a record of each accident or dangerous occurrence in respect of which the operator is required by clause 82 to notify NOPSEMA.

Regulations

(2) Regulations made for the purposes of subclause (1) may prescribe:

(a) the nature of the contents of a record maintained under this clause; and

(b) the period for which such a record must be retained.

(3) Subclause (2) does not limit regulations that may be made for the purposes of subclause (1).

Offence

(4) A person commits an offence of strict liability if:

(a) the person is subject to a requirement under subclause (1); and

(b) the person omits to do an act; and

Penalty: 30 penalty units.

Note: For strict liability, see section 6.1 of the Criminal Code .

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes a requirement under subclause (1).

Civil penalty: 60 penalty units.

84 Codes of practice

(1) The regulations may prescribe codes of practice for the purpose of providing practical guidance to operators of facilities and employers (other than such operators) of members of the workforce at facilities.

(2) A person is not liable to any civil or criminal proceedings for contravening a code of practice.

85 Use of codes of practice in criminal proceedings

Scope

(1) This clause applies if, in any proceedings for an offence against a listed OHS law, it is alleged that a person contravened a provision of a listed OHS law in relation to which a code of practice was in effect at the time of the alleged contravention.

Admissibility

(2) The code of practice is admissible in evidence in those proceedings.

Presumption

(3) If the court is satisfied, in relation to any matter which it is necessary for the prosecution to prove in order to establish the contravention, that:

(a) any provision of the code of practice is relevant to that matter; and

(b) the person failed at any material time to comply with that provision of the code of practice;

that matter is treated as proved unless the court is satisfied that, in respect of that matter, the person complied with that provision of a listed OHS law otherwise than by complying with the code of practice.

86 Interference etc. with equipment etc.

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in the interference with, or the rendering ineffective of, any equipment or device provided for the health, safety or welfare of members of the workforce at a facility; and

(d) the person knew (or ought reasonably to have known) that the equipment or device was protective equipment or a safety device.

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

(2) Subclause (1) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

87 Members of workforce not to be levied

Offence

(1) A person commits an offence if:

(a) the person is:

(i) the operator of a facility; or

(ii) an employer (other than the operator) of members of the workforce at a facility; and

(b) the person levies, or permits to be levied, on any member of the workforce at the facility, any charge in relation to anything done or provided in accordance with a listed OHS law in order to ensure the health, safety or welfare of persons at or near the facility.

Penalty: 250 penalty units.

Civil penalty

(2) A person mentioned in paragraph (1)(a) is liable to a civil penalty if the person engages in the conduct mentioned in paragraph (1)(b).

Civil penalty: 350 penalty units.

88 Employer not to dismiss etc. employees on certain grounds

(1) An employer (whether the operator or another person) must not:

(a) dismiss an employee; or

(b) perform an act that results in injury to an employee in his or her employment; or

(c) perform an act that prejudicially alters the employee's position (whether by deducting or withholding remuneration or by any other means); or

(d) threaten to do any of those things;

because the employee:

(e) has complained or proposes to complain about a matter concerning the health, safety or welfare of employees at work; or

(f) has assisted or proposes to assist, by giving information or otherwise, the conduct of an OHS inspection or an inspection in relation to a listed OHS law for the purposes of Division 1 of Part 6.5 of this Act; or

(g) has ceased, or proposes to cease, to perform work, in accordance with a direction by a health and safety representative under paragraph 44(1)(b) or (3)(c), and the cessation or proposed cessation does not continue after:

(i) the health and safety representative has agreed with a person supervising the work that the cessation or proposed cessation was not, or is no longer, necessary; or

(ii) a NOPSEMA inspector has, under subclause 44(5), made a decision that has the effect that the employee should perform the work.

Offence

(2) A person commits an offence if:

(a) the person is subject to a requirement under subclause (1); and

(b) the person engages in conduct; and

Penalty: 600 penalty units.

(3) In proceedings for an offence against subclause (2), if all the relevant facts and circumstances, other than the reason for an action alleged in the charge, are proved, the defendant has the onus of establishing that the action was not taken for that reason.

Note: A defendant bears a legal burden in relation to the matter in subclause (3), see section 13.4 of the Criminal Code .

89 Institution of prosecutions

NOPSEMA or NOPSEMA inspector may institute prosecutions

(1) Proceedings for an offence against a listed OHS law may be instituted by NOPSEMA or by a NOPSEMA inspector.

Request to institute prosecutions

(2) A health and safety representative for a designated work group may request NOPSEMA to institute proceedings for an offence against a listed OHS law in relation to the occurrence of an act or omission if:

(a) a period of 6 months has elapsed since the act or omission occurred; and

(b) the health and safety representative considers that the occurrence of the act or omission constitutes an offence against a listed OHS law; and

(3) A workforce representative in relation to a designated work group may request NOPSEMA to institute proceedings for an offence against a listed OHS law in relation to the occurrence of an act or omission if:

(a) a period of 6 months has elapsed since the act or omission occurred; and

(b) the workforce representative considers that the occurrence of the act or omission constitutes an offence against a listed OHS law; and

(d) a group member included in the group requests the workforce representative to request NOPSEMA to institute the proceedings.

(4) A request under subclause (2) or (3) must be in writing.

(5) NOPSEMA must, within 3 months after receiving the request, advise the health and safety representative or the workforce representative, as the case may be, whether proceedings under subclause (1) have been or will be instituted and, if not, give reasons why not.

90 Conduct of directors, employees and agents

Scope

(1) This clause has effect for the purposes of a proceeding for an offence against a listed OHS law.

State of mind of a body corporate

(2) If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of actual or apparent authority; and

(b) that the director, employee or agent had the state of mind.

Conduct of a body corporate

(3) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of actual or apparent authority is taken to have been engaged in also by the body corporate unless it establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

State of mind of an individual

(4) If it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by an employee or agent of the individual within the scope of actual or apparent authority; and

(b) that the employee or agent had the state of mind.

Conduct of an individual

(5) Any conduct engaged in on behalf of an individual by an employee or agent of the individual within the scope of actual or apparent authority is taken to have been engaged in also by the individual unless the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

Limitation on imprisonment

(6) If:

(a) an individual is convicted of an offence; and

(b) he or she would not have been convicted of the offence if subclauses (4) and (5) had not been enacted;

he or she is not liable to be punished by imprisonment for that offence.

Extended meaning of state of mind

(7) A reference in subclause (2) or (4) to the state of mind of a person includes a reference to:

(a) the person's knowledge, intention, opinion, belief or purpose; and

(b) the person's reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(8) Part 2.5 of the Criminal Code does not apply to an offence against a listed OHS law.

91 Schedule not to give rise to other liabilities etc.

(1) This Schedule does not:

(a) confer a right of action in any civil proceeding in respect of any contravention of a provision of a listed OHS law; or

(b) confer a defence to an action in any civil proceeding or otherwise affect a right of action in any civil proceeding.

(2) However, subclause (1) does not apply in relation to the enforcement, for the purposes of Division 4 of Part 6.5 of this Act, of a listed OHS law that is a civil penalty provision.

92 Circumstances preventing compliance may be defence to prosecution

It is a defence to a prosecution for refusing or failing to do anything required by a listed OHS law if the defendant proves that it was not practicable to do that thing because of an emergency prevailing at the relevant time.

Note: A defendant bears a legal burden in relation to the matter in this clause--see section 13.4 of the Criminal Code .

93 Regulations--general

(1) The regulations may prescribe:

(a) procedures for the selection of persons, under clause 41, as members of health and safety committees, to represent the interests of members of the workforce at a facility; and

(b) procedures to be followed at meetings of health and safety committees; and

(d) forms for the purposes of this Schedule or the regulations.

(2) Subclause (1) does not limit the power to make regulations.

Exemptions

(3) If the Minister is satisfied that:

(a) a power, function or duty is conferred or imposed on a person under a law of the Commonwealth or of a State or Territory; and

(b) the proper exercise of the power or performance of the function or duty is or would be prevented by this Schedule or a provision of this Schedule;

regulations made for the purposes of this subclause may declare that this Schedule, or the provision, as the case may be, does not apply to that person, or does not apply to that person in the circumstances specified in the regulations.

(4) Regulations made for the purposes of subclause (3) do not remain in force for longer than 5 years after they commence, but this subclause does not prevent the making of further regulations of the same substance.

(5) In subclause (3):

"this Schedule" includes regulations made for the purposes of this Schedule.

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Decisions subject to appeal
Item	If the inspector makes the following decision ...	the following persons may appeal against the decision to the reviewing authority by written notice ...
1	A decision to confirm or vary a provisional OHS improvement notice, under clause 39	(a) a person to whom the provisional OHS improvement notice was issued under subclause 38(2); (b) the operator of the facility; (c) a titleholder, if the notice relates to the titleholder's well - related obligations; (d) an employer, if affected by the decision; (e) a relevant health and safety representative; (f) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (g) a person who owns any workplace, plant, substance or thing to which the decision relates.
2	A decision to cancel a provisional OHS improvement notice, under clause 39	(a) a relevant health and safety representative; (b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
3	A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at a facility under clause 75	(a) the operator of the facility; (b) a titleholder, if the reasons stated in the notice under subclause 75(2) relate to the titleholder's well - related obligations; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (f) a person who owns the workplace, plant, substance or thing.
3A	A decision to take possession of plant, a substance or thing, or to take a sample, in conducting an OHS inspection at regulated business premises (other than a facility) under clause 75	(a) in the case of an inspection at regulated business premises that are occupied by the operator of a facility--the operator of the facility; (b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the operator of a facility--the related body corporate; (c) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 3--the person; (d) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (e)(ii) of the definition of regulated business premises in clause 3--the person; (e) a titleholder, if the reasons stated in the notice under subclause 75(2A) relate to the titleholder's well - related obligations; (f) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the registered holder of a title--the related body corporate; (g) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (h)(ii) of the definition of regulated business premises in clause 3--the person; (h) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (i)(ii) of the definition of regulated business premises in clause 3--the person; (i) a person who owns the plant, substance or thing.
4	Either of the following: (a) a decision to issue an OHS do not disturb notice, under clause 76; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (f) a person who owns the workplace, plant, substance or thing.
5	Either of the following: (a) a decision to issue an OHS prohibition notice, under clause 77; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
6	Either of the following: (a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has not taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(6); (b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.	(a) the operator of the facility; (b) a titleholder, if the notice is issued to the titleholder; (c) an employer, if affected by the decision; (d) a relevant health and safety representative; (e) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
7	Either of the following: (a) a decision that an operator of a facility, or a titleholder, to whom an OHS prohibition notice has been issued has taken adequate action to remove a threat to health and safety, for the purposes of subclause 77A(8); (b) a corresponding decision in relation to the exercise of the corresponding power under section 602E.	(a) a relevant health and safety representative; (b) a relevant workforce representative, if requested by a member of the workforce affected by the decision.
8	Either of the following: (a) a decision to issue an OHS improvement notice, under clause 78; (b) a decision to exercise the corresponding power under section 602E.	(a) the operator of the facility; (b) the titleholder, if the notice is issued to the titleholder; (c) any other person to whom the notice is issued; (d) an employer, if affected by the decision; (e) a relevant health and safety representative; (f) a relevant workforce representative, if requested by a member of the workforce affected by the decision; (g) a person who owns any workplace, plant, substance or thing to which the decision relates.