Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Industrial manslaughter
Work Health and Safety Act 2011
1 After section 30
Insert:
(1) A person commits an offence if:
(a) the person is:
(i) a person conducting a business or undertaking; or
(ii) an officer of a person conducting a business or undertaking; and
(b) the person has a health and safety duty; and
(c) the person intentionally engages in conduct; and
(d) the conduct breaches the health and safety duty; and
(e) the conduct causes the death of an individual; and
(f) the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.
Note: There is no limitation period for bringing proceedings for an offence against this subsection (see subsection 232(2A)).
Penalty:
(a) In the case of an offence committed by an individual--25 years imprisonment.
(b) In the case of an offence committed by a body corporate--$18,000,000.
When conduct causes death
(2) For the purposes of subsection (1), a person's conduct causes a death if the conduct substantially contributes to the death.
No substitution of pecuniary penalty for imprisonment
(3) Subsection 4B(2) of the Crimes Act 1914 does not apply in relation to an offence against subsection (1) of this section.
Alternative verdicts
(4) If, in proceedings for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of the prosecuted offence; and
(b) is satisfied that the person is guilty of an offence (the alternative offence ) that is a Category 1 offence or a Category 2 offence;
the trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.
No limitation period in relation to alternative verdicts
(5) For the purposes of subsection (4), it does not matter whether the proceedings mentioned in that subsection were brought at a time when, or in circumstances in which, bringing proceedings for the alternative offence would have been permitted under section 232 (limitation period for prosecutions).
2 Subsection 216(2)
Omit "for a contravention", substitute "in relation to a contravention".
3 At the end of subsection 216(2)
Add "or an offence against subsection 30A(1) (industrial manslaughter)".
4 Subparagraphs 231(1)(a)(i) and (ii)
Omit "or a Category 2 offence", substitute ", a Category 2 offence or an offence against subsection 30A(1) (industrial manslaughter)".
5 Subsection 231(3)
Omit "a Category 1 or Category 2 offence", substitute "a Category 1 offence, a Category 2 offence or an offence against subsection 30A(1) (industrial manslaughter)".
6 Before subsection 232(2)
Insert:
Exceptions
7 After subsection 232(2)
Insert:
(2A) Despite subsection (1), proceedings for an offence against subsection 30A(1) (industrial manslaughter) may be brought at any time.
8 Before subsection 232(3)
Insert:
Definitions
9 Application provision
Section 30A of the Work Health and Safety Act 2011 , as inserted by this Part, applies in relation to conduct engaged in on or after the commencement of this Part.
Work Health and Safety Act 2011
10 Paragraph 31(1)(b)
Repeal the paragraph, substitute:
(b) the person, without reasonable excuse, engages in conduct that:
(i) exposes an individual to whom the duty is owed to a risk of death or serious injury or illness; or
(ii) if the person is an officer of a person conducting a business or undertaking--exposes an individual, to whom the person conducting a business or undertaking owes a health and safety duty, to a risk of death or serious injury or illness; and
Part 3 -- Corporate criminal liability
Work Health and Safety Act 2011
11 Section 4
Insert:
"authorised person " , for a body corporate, in Division 4 of Part 13--see section 244.
"board of directors " , of a body corporate, in Division 4 of Part 13--see section 244.
"fault element , in relation to an offence, has the same meaning as in the Criminal Code" .
"physical element , in relation to an offence, has the same meaning as in the Criminal Code" .
12 Before subsection 12F(1)
Insert:
Application of the Crimes Act 1914
13 Before subsection 12F(2)
Insert:
Application of the Criminal Code
14 At the end of section 12F
Add:
(4) Part 2.5 of the Criminal Code (which deals with corporate criminal responsibility) does not apply to an offence against this Act.
Note: For the purposes of this Act, corporate criminal responsibility is dealt with by Division 4 of Part 13 of this Act.
15 Section 244
Repeal the section, substitute:
In this Division:
"authorised person " , for a body corporate, means an officer, employee or agent of the body corporate acting within the officer's, employee's or agent's actual or apparent authority.
"board of directors " , of a body corporate, means the body, whatever it is called, exercising the executive authority of the body corporate.
The conduct constituting the physical element of an offence is taken to have been engaged in by a body corporate if the conduct is engaged in by:
(a) the body corporate's board of directors; or
(b) one or more authorised persons for the body corporate; or
(c) one or more persons acting at the direction of or with the express or implied agreement or consent of:
(i) an authorised person for the body corporate; or
(ii) the body corporate's board of directors.
244B Fault elements other than negligence
(1) If it is necessary to establish that a body corporate had a state of mind in relation to a physical element of an offence, it is sufficient to show that:
(a) the body corporate's board of directors:
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(b) an authorised person for the body corporate:
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(c) a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the conduct constituting the offence.
(1A) For the purposes of subsection (1), having a state of mind in relation to a physical element of an offence does not include being negligent with respect to that physical element.
Note: For how negligence applies in relation a body corporate, see section 244BA.
(2) For the purposes of subsection (1):
(a) paragraphs (1)(b) and (c) do not apply if the body corporate proves it took reasonable precautions to prevent the conduct constituting the offence; and
(b) subparagraph (1)(b)(ii) does not apply if the body corporate proves it took reasonable precautions to prevent the authorised person authorising or permitting the conduct constituting the offence.
(3) Factors relevant to the application of paragraph (1)(c) include:
(a) whether authority or permission to engage in the conduct constituting an offence, of the same or a similar character, had previously been given by a corporate officer of the body corporate; and
(b) whether the person who engaged in the conduct constituting the offence believed on reasonable grounds, or had a reasonable expectation, that a corporate officer of the body corporate would have authorised or permitted the conduct.
(4) In this section:
"corporate culture " , within a body corporate, means one or more attitudes, policies, rules, courses of conduct or practices existing within the body corporate generally or in the part of the body corporate in which the relevant activity takes place.
"corporate officer " , of a body corporate, means an officer of the body corporate within the meaning of section 9 of the Corporations Act 2001 .
(1) The test of negligence for a body corporate is that set out in section 5.5 of the Criminal Code .
(2) If:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element;
that fault element may exist on the part of the body corporate if the body corporate's conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate management, control or supervision of the conduct of one or more of the body corporate's employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
If mistake of fact is relevant to determining liability for an offence, a body corporate may rely on mistake of fact only if:
(a) the employee, agent or officer of the body corporate who engaged in the conduct constituting the offence was under a mistaken but reasonable belief about facts that, had they existed, would have meant the conduct would not have constituted the offence; and
(b) the body corporate proves it took reasonable precautions to prevent the conduct.
244D Failure to take reasonable precautions
For the purposes of subsection 244B(2) and paragraph 244C(b), a failure to take reasonable precautions may be evidenced by the fact that the conduct constituting the offence was substantially attributable to:
(a) inadequate management, control or supervision of the conduct of one or more of the body corporate's employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
244E How this Division applies to public authorities
If a body corporate is a public authority, this Division applies in relation to the body corporate in accordance with section 251.
Part 4 -- Commonwealth criminal liability
Work Health and Safety Act 2011
16 Section 4
Insert:
"authorised person " , for the Commonwealth, in Division 5 of Part 13--see section 245.
"executive " , of an agency of the Commonwealth, in Division 5 of Part 13--see section 245.
17 Section 4 (definition of officer )
Repeal the definition, substitute:
"officer " , of an entity, means:
(a) if the entity is the Commonwealth--an officer of the Commonwealth within the meaning of section 247; or
(b) if the entity is a public authority--an officer of the public authority within the meaning of section 252; or
(c) in Division 5 of Part 13, if the entity is an agency of the Commonwealth--an officer of the agency within the meaning of section 245; or
(d) if paragraphs (a), (b) and (c) of this definition do not apply--an officer of the entity within the meaning of section 9 of the Corporations Act 2001 other than, if the entity is a partnership, a partner in the partnership;
but does not include, if the entity is a local authority, an elected member of the local authority acting in that capacity.
18 Section 245
Repeal the section, substitute:
In this Division:
"authorised person " , for the Commonwealth, means an officer, employee or agent of the Commonwealth acting within the officer's, employee's or agent's actual or apparent authority.
"executive " , of an agency of the Commonwealth, means the person or body, whatever the person or body is called, exercising the executive authority of the agency.
"officer " , of an agency of the Commonwealth, means a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the agency.
245A Offences and the Commonwealth--physical elements
The conduct constituting the physical element of an offence is taken to have been engaged in by the Commonwealth if the conduct is engaged in by:
(a) the executive of an agency of the Commonwealth; or
(b) one or more authorised persons for the Commonwealth; or
(c) one or more persons acting at the direction of or with the express or implied agreement or consent of:
(i) an authorised person for the Commonwealth; or
(ii) the executive of an agency of the Commonwealth.
245B Offences and the Commonwealth--fault elements other than negligence
(1) If it is necessary to establish that the Commonwealth had a state of mind in relation to a physical element of an offence, it is sufficient to show that:
(a) the executive of an agency of the Commonwealth:
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(b) an authorised person for the Commonwealth:
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(c) a corporate culture existed within an agency of the Commonwealth that directed, encouraged, tolerated or led to the conduct constituting the offence.
(1A) For the purposes of subsection (1), having a state of mind in relation to a physical element of an offence does not include being negligent with respect to that physical element.
Note: For how negligence applies in relation to the Commonwealth, see section 245BA.
(2) For the purposes of subsection (1):
(a) paragraphs (1)(b) and (c) do not apply if the Commonwealth proves it took reasonable precautions to prevent the conduct constituting the offence; and
(b) subparagraph (1)(b)(ii) does not apply if the Commonwealth proves it took reasonable precautions to prevent the authorised person authorising or permitting the conduct constituting the offence.
(3) Factors relevant to the application of paragraph (1)(c) include:
(a) whether authority or permission to engage in the conduct constituting an offence, of the same or a similar character, had previously been given by an officer of the agency; and
(b) whether the person who engaged in the conduct constituting the offence believed on reasonable grounds, or had a reasonable expectation, that an officer of the agency would have authorised or permitted the conduct.
Definitions
(4) In this section:
"corporate culture " , within an agency of the Commonwealth, means one or more attitudes, policies, rules, courses of conduct or practices existing within the agency generally or in the part of the agency in which the relevant activity takes place.
245BA Offences and the Commonwealth--negligence
(1) The test of negligence for the Commonwealth is that set out in section 5.5 of the Criminal Code .
(2) If:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the Commonwealth has that fault element;
that fault element may exist on the part of the Commonwealth if the conduct of the Commonwealth is negligent when viewed as a whole (that is, by aggregating the conduct of any number of the employees, agents or officers of the Commonwealth).
(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate management, control or supervision of the conduct of one or more employees, agents or officers of the Commonwealth; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the Commonwealth.
245C Offences and the Commonwealth--mistake of fact
If mistake of fact is relevant to determining liability for an offence, the Commonwealth may rely on mistake of fact only if:
(a) the employee, agent or officer of the Commonwealth who engaged in the conduct constituting the offence was under a mistaken but reasonable belief about facts that, had they existed, would have meant the conduct would not have constituted the offence; and
(b) the Commonwealth proves it took reasonable precautions to prevent the conduct.
245D Offences and the Commonwealth--failure to take reasonable precautions
For the purposes of subsection 245B(2) and paragraph 245C(b), a failure to take reasonable precautions may be evidenced by the fact that the conduct constituting the offence was substantially attributable to:
(a) inadequate management, control or supervision of the conduct of one or more employees, agents or officers of the Commonwealth; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the Commonwealth.
245E Offences and the Commonwealth--penalties
If the Commonwealth is guilty of an offence against this Act, the penalty to be imposed on the Commonwealth is the penalty applicable to a body corporate.
Part 5 -- Criminal liability of public authorities
Work Health and Safety Act 2011
19 Section 251
Repeal the section, substitute:
251 Offences and public authorities
(1) Division 4 of this Part (which deals with offences by bodies corporate) applies in relation to a public authority that is a body corporate in the same way that the Division applies in relation to any other body corporate, subject to subsection (2) of this section.
(a) each reference in that Division to an officer of a body corporate is taken to be a reference to an officer of the public authority (within the meaning of section 252); and
(b) the references in paragraphs 244B(3)(a) and (b) to a corporate officer of the body corporate are taken to be references to an officer of the public authority (within the meaning of section 252).
Work Health and Safety Act 2011
20 Section 4
Insert:
category 1 monetary penalty --see clause 1 of Schedule 4.
category 2 monetary penalty --see clause 1 of Schedule 4.
category 3 monetary penalty --see clause 1 of Schedule 4.
"tier A monetary penalty " --see clause 2 of Schedule 4.
"tier B monetary penalty " --see clause 2 of Schedule 4.
"tier C monetary penalty " --see clause 2 of Schedule 4.
"tier D monetary penalty " --see clause 2 of Schedule 4.
"tier E monetary penalty " --see clause 2 of Schedule 4.
"tier F monetary penalty " --see clause 2 of Schedule 4.
"tier G monetary penalty " --see clause 2 of Schedule 4.
"tier H monetary penalty " --see clause 2 of Schedule 4.
"tier I monetary penalty " --see clause 2 of Schedule 4.
WHS civil penalty provision tier 1 --see clause 3 of Schedule 4.
WHS civil penalty provision tier 2 --see clause 3 of Schedule 4.
WHS civil penalty provision tier 3 --see clause 3 of Schedule 4.
WHS civil penalty provision tier 4 --see clause 3 of Schedule 4.
Division 2--Categorised monetary penalties for offences
Work Health and Safety Act 2011
21 Subsection 31(1) (penalty)
Repeal the penalty, substitute:
Penalty:
(a) In the case of an individual--the category 1 monetary penalty or 15 years imprisonment or both.
(b) In the case of a body corporate--the category 1 monetary penalty.
22 Section 32 (penalty)
Repeal the penalty, substitute:
Penalty: The category 2 monetary penalty.
23 Section 33 (penalty)
Repeal the penalty, substitute:
Penalty: The category 3 monetary penalty.
Division 3--Tier A monetary penalties for offences
Work Health and Safety Act 2011
24 Subsections 104(1), 107(1), 108(1) and 109(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier A monetary penalty.
25 Section 197 (penalty)
Repeal the penalty, substitute:
Penalty: The tier A monetary penalty.
Division 4--Tier B monetary penalties for offences
Work Health and Safety Act 2011
26 Section 41 (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
27 Subsection 99(2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
28 Section 190 (penalty)
Repeal the penalty, substitute:
Penalty:
(a) In the case of an individual--the tier B monetary penalty or imprisonment for 2 years or both.
(b) In the case of a body corporate--the tier B monetary penalty.
29 Section 193 (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
30 Subsection 200(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
31 Section 219 (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
32 Subsection 242(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
Division 5--Tier C monetary penalties for offences
Work Health and Safety Act 2011
33 Subsections 42(1) and (2), 43(1) and (2) and 44(1) and (2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier C monetary penalty.
34 Section 45 (penalty)
Repeal the penalty, substitute:
Penalty: The tier C monetary penalty.
35 Section 46 (penalty)
Repeal the penalty, substitute:
Penalty: The tier C monetary penalty.
36 Subsection 47(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier C monetary penalty.
Division 6--Tier D monetary penalties for offences
Work Health and Safety Act 2011
37 Subsections 38(1) and 39(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
38 Subsection 52(5) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
39 Subsection 56(2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
40 Subsection 61(4) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
41 Subsections 70(1) and (2), 71(2) and 72(7) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
42 Subsections 79(1), (3) and (4) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
43 Subsection 155(5) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
44 Subsection 165(2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
45 Subsections 171(6) and 177(2) and (6) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
46 Subsection 185(4) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
47 Sections 188 and 189 (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
48 Subsections 271(2) and (4) (penalty)
Repeal the penalty, substitute:
Penalty: The tier D monetary penalty.
Division 7--Tier F monetary penalties for offences
Work Health and Safety Act 2011
49 Subsection 38(7) (penalty)
Repeal the penalty, substitute:
Penalty: The tier F monetary penalty.
50 Subsection 75(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier F monetary penalty.
51 Subsections 97(1) and (2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier F monetary penalty.
52 Subsections 210(1) and (2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier F monetary penalty.
53 Section 273 (penalty)
Repeal the penalty, substitute:
Penalty: The tier F monetary penalty.
Division 8--Tier H monetary penalties for offences
Work Health and Safety Act 2011
54 Subsections 53(1) and (2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier H monetary penalty.
55 Subsections 57(1) and (2) (penalty)
Repeal the penalty, substitute:
Penalty: The tier H monetary penalty.
56 Subsection 74(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier H monetary penalty.
Division 9--Penalties for WHS civil penalty provisions
Work Health and Safety Act 2011
57 Subsection 118(3) (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
58 Section 123 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 1.
59 Sections 124 to 126, 128 and 129 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
60 Section 143 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
61 Subsection 144(1) (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
62 Sections 145 and 146 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
63 Subsection 147(1) (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
64 Section 148 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 2.
65 Subsection 149(1) (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 4.
66 Section 150 (penalty)
Repeal the penalty (not including the heading), substitute:
Penalty: The WHS civil penalty provision tier 3.
67 Paragraphs 254(1)(a) and (2)(a)
Omit "1 or more amounts by way of monetary penalty are", substitute "a penalty, expressed as a WHS civil penalty provision tier, is".
68 Subsection 259(2)
Omit "maximum".
69 Application provision
The amendments of the Work Health and Safety Act 2011 made by this Division apply in relation to a contravention of a WHS civil penalty provision that occurs on or after the commencement of this Division.
Division 10--Penalties prescribed by the regulations
Work Health and Safety Act 2011
70 Paragraph 276(3)(h)
Repeal the paragraph, substitute:
(h) prescribe any of the following as the penalty for an offence under the regulations:
(i) a tier E monetary penalty;
(ii) a tier F monetary penalty;
(iii) a tier G monetary penalty;
(iv) a tier H monetary penalty;
(v) a tier I monetary penalty; or
71 Transitional provision--existing penalty provisions
(1) This item applies to a provision (an existing penalty provision ) in the Work Health and Safety Regulations 2011 if, immediately before the commencement of this Division, the provision prescribed a monetary penalty for an offence against those regulations.
(2) Despite the amendment of paragraph 276(3)(h) of the Work Health and Safety Act 2011 by this Division, but subject to subitem (3) of this item, an existing penalty provision continues in force on and after the commencement of this Division.
(3) An existing penalty provision may, on or after the commencement of this Division, be repealed or amended by regulations made under section 276 of the Work Health and Safety Act 2011 .
Work Health and Safety Act 2011
72 At the end of the Act
Add:
1 Monetary penalties--categories 1 to 3
A penalty referred to in column 1 of an item of the following table, for a person referred to in the heading to another column of the table, is the amount specified in that other column of that item, as indexed under clause 4 and rounded under clause 5.
| Monetary penalties--categories 1 to 3 | ||||
| Item | Column 1 Kind of penalty |
Column 2 An individual who commits an offence as: (a) a person conducting a business undertaking; or (b) an officer of a person conducting a business undertaking | Column 3 An individual who commits an offence (other than as mentioned in column 2) | Column 4 A body corporate |
| 1 | the category 1 monetary penalty | $3,000,000 | $1,500,000 | $15,000,000 |
2 | the category 2 monetary penalty | $418,000 | $209,000 | $2,090,000 |
3 | the category 3 monetary penalty | $140,000 | $70,000 | $700,000 |
2 Monetary penalties--tiers A to I
A penalty referred to in column 1 of an item of the following table, for a person referred to in the heading to another column of the table, is the amount specified in that other column of that item, as indexed under clause 4 and rounded under clause 5.
| Monetary penalties--tiers A to I | |||
| Item | Column 1 Kind of penalty | Column 2 An individual | Column 3 A body corporate |
| 1 | the tier A monetary penalty | $139,000 | $695,000 |
| 2 | the tier B monetary penalty |
$70,000 | $350,000 |
| 3 | the tier C monetary penalty | $28,000 |
$140,000 |
| 4 | the tier D monetary penalty | $14,000 | $70,000 |
|
5 | the tier E monetary penalty | $8,400 | $42,000 |
| 6 | the tier F monetary penalty | $7,000 | $35,000 |
| 7 | the tier G monetary penalty | $5,000 | $25,000 |
| 8 | the tier H monetary penalty |
$2,800 | $14,000 |
| 9 | the tier I monetary penalty | $1,700 |
$8,500 |
3 Monetary penalties--WHS civil penalty provision--tiers 1 to 4
A penalty referred to in column 1 of an item of the following table, for a person referred to in the heading to another column of the table, is the amount specified in that other column of that item, as indexed under clause 4 and rounded under clause 5.
| WHS civil penalty provision--tiers 1 to 4 | |||
| Item | Column 1 Kind of penalty |
Column 2 An individual | Column 3 A body corporate |
| 1 | the WHS civil penalty provision tier 1 | $28,000 | $140,000 |
| 2 | the WHS civil penalty provision tier 2 | $14,000 | $70,000 |
| 3 | the WHS civil penalty provision tier 3 | $7,000 | $35,000 |
| 4 | the WHS civil penalty provision tier 4 | $2,800 | $14,000 |
4 Indexation of penalty amounts
(1) The amount of each monetary penalty set out in clause 1, 2 or 3 must be indexed for the year commencing on 1 July 2024, and for each subsequent year, in accordance with this clause.
(2) The amount of a monetary penalty applying in each year is to be calculated as follows:
where:
"A " is the amount of the monetary penalty set out in clause 1, 2 or 3.
"B " is the CPI number for the March quarter in the year immediately preceding the year for which the amount is calculated.
"C " is the CPI number for the March quarter of 2022.
Note: For CPI number and year , see clause 7.
(3) If the amount of a monetary penalty calculated for a year is less than the amount that applied in the previous year, then the amount for the previous year continues to apply.
If, after indexation under clause 4, the amount of a monetary penalty applying in a year is:
(a) less than $10,000 and not a multiple of $100:
(i) the amount must be rounded to the nearest $100; and
(ii) an amount of $50 is rounded down; or
(b) more than $10,000 and not a multiple of $1,000:
(i) the amount must be rounded to the nearest $1,000; and
(ii) an amount of $500 is rounded down.
6 Public notification of adjusted penalty amounts
As soon as practicable after publication by the Australian Statistician of the CPI number for the March quarter in a year, the regulator must, by notifiable instrument, give notice of the amount of each monetary penalty calculated under this Schedule.
In this Schedule:
"CPI number " means the All Groups Consumer Price Index number, that is, the weighted average of the 8 Australian capital cities, published by the Australian Statistician.
"year " means a period of 12 months starting on 1 July.
Work Health and Safety Act 2011
73 Subsections 272A(1) and 272B(1) (penalty)
Repeal the penalty, substitute:
Penalty: The tier B monetary penalty.
Part 8 -- Family and Injured Workers Advisory Committee
Work Health and Safety Act 2011
74 After Part 3 of Schedule 2
Insert:
Part 3A -- Family and Injured Workers Advisory Committee
In this Part:
"Advisory Committee " means the Family and Injured Workers Advisory Committee established under clause 3B.
"Advisory Committee member " means a member of the Advisory Committee and includes the Co-Chairs.
"Co-Chair " means a Co-Chair of the Advisory Committee.
"first Co-Chair " means the Co-Chair appointed in accordance with subclause 3E(5).
"second Co-Chair " means the Co-Chair appointed in accordance with subclause 3E(6).
"serious work-related incident " means the death of a person, or a serious injury or illness of a person, arising out of the conduct of a business or undertaking.
3B Establishment of the Family and Injured Workers Advisory Committee
The Minister must establish a committee called the Family and Injured Workers Advisory Committee. The Advisory Committee must be established before the end of the period of 12 months beginning on the day this Part commences.
3C Functions of the Advisory Committee
The functions of the Advisory Committee are as follows:
(a) to give advice, and make recommendations, to the Minister about the needs of persons affected, directly or indirectly, by serious work-related incidents;
(b) to give advice to Comcare about, and contribute to the development and review of, Comcare's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise out of the conduct of a business or undertaking by the Commonwealth, a public authority or a non-Commonwealth licensee;
(c) to give advice to the Australian Maritime Safety Authority about, and contribute to the development and review of, the Authority's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise on a prescribed ship (within the meaning of the Occupational Health and Safety (Maritime Industry) Act 1993 ) or a prescribed unit (within the meaning of that Act) that is engaged in trade or commerce of the kind referred to in subsection 6(1) of that Act;
(d) to give advice to the National Offshore Petroleum Safety and Environmental Management Authority about, and contribute to the development and review of, the Authority's policies, practices and strategies for liaising with, and providing information to, persons affected, directly or indirectly, by serious work-related incidents that arise:
(i) at a facility (within the meaning of Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 ) located in Commonwealth waters (within the meaning of that Schedule); or
(ii) out of the conduct of a business or undertaking in the Commonwealth offshore area (within the meaning of the Offshore Electricity Infrastructure Act 2021 );
(e) such other functions as are prescribed by the regulations.
3D Membership of the Advisory Committee
The Advisory Committee consists of the following members:
(a) 2 Co-Chairs;
(b) at least 3 other members.
3E Appointment of Advisory Committee members
(1) Each Advisory Committee member is to be appointed by the Minister, by written instrument, on a part-time basis.
Note: An Advisory Committee member may be reappointed (see section 33AA of the Acts Interpretation Act 1901 ).
(2) The instrument of appointment of an Advisory Committee member must specify whether the member is appointed as the first Co-Chair, second Co-Chair or another member.
Period of appointment
(3) An Advisory Committee member holds office for the period specified in the member's instrument of appointment. The period must not be more than 3 years.
(4) An Advisory Committee member is eligible for reappointment but must not hold office for a total of more than 9 years.
Eligibility for appointment as Advisory Committee member (including first Co-Chair but not including second Co-Chair)
(5) A person is eligible for appointment as an Advisory Committee member (including the first Co-Chair, but not including the second Co-Chair) only if the Minister is satisfied that:
(a) the person has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or
(b) the person has lived experience as family member or carer of another person who:
(i) has died, if the person's death arose out of the conduct of a business or undertaking; or
(ii) has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or
(c) the person has been affected, directly or indirectly, by a serious work-related incident suffered by another person.
Note: Examples of persons for the purposes of paragraph (c) are friends and co-workers.
Eligibility for appointment as second Co-Chair
(6) A person is eligible for appointment as the second Co-Chair only if the Minister is satisfied that the person has relevant skills and experience in relation to trauma and group facilitation.
Additional member
(7) Without limiting this clause, if the Advisory Committee already has at least 5 members (including the first Co-Chair and the second Co-Chair), the Minister may appoint an additional Advisory Committee member under subclause (1) who has relevant skills and experience in relation to trauma and grief.
(1) A Co-Chair may, after consulting the other members of the Advisory Committee, invite a person, body or organisation to participate in a meeting.
(2) A Co-Chair may terminate the invitation at any time, including during a meeting.
(3) The participation of a person in a meeting does not make the person a member.
(4) A person invited to participate in a meeting:
(a) is entitled to payment of travel allowance prescribed by the regulations for the purposes of this paragraph; and
(b) must comply with any requirements prescribed by the regulations for the purposes of this paragraph.
(5) Regulations made for the purposes of subclause (4) may identify a rate by reference to the rate of travelling allowance that is payable to a particular class of office holders under a determination of the Remuneration Tribunal as in force at a particular time, or as in force from time to time.
Note: This subclause is not intended to be an exhaustive statement of the ways in which a rate could be identified.
(6) The regulations may provide for or in relation to persons invited to participate in a meeting.
(1) The Minister may, by written instrument, appoint an Advisory Committee member (other than the second Co-Chair) to act as the first Co-Chair:
(a) during a vacancy in the office of the first Co-Chair (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the first Co-Chair:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .
(2) The Minister may, by written instrument, appoint an Advisory Committee member (other than the first Co-Chair), or any other person, to act as the second Co-Chair:
(a) during a vacancy in the office of the second Co-Chair (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the second Co-Chair:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(3) A person is not eligible for appointment under subclause (2) unless the person is eligible for appointment as the second Co-Chair under subclause 3E(6).
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .
(4) The Minister may, by written instrument, appoint a person to act as an Advisory Committee member (other than a Co-Chair):
(a) during a vacancy in the office of an Advisory Committee member (other than a Co-Chair) (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when an Advisory Committee member (other than a Co-Chair):
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(5) A person is not eligible for appointment under subclause (4) unless the person is eligible for appointment as an Advisory Committee member under subclause 3E(5).
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .
3H Remuneration and allowances
(1) An Advisory Committee member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Advisory Committee member is to be paid the remuneration that is prescribed by the regulations.
(2) An Advisory Committee member is to be paid the allowances that are prescribed by the regulations.
(3) This clause has effect subject to the Remuneration Tribunal Act 1973 .
(1) The Minister may grant leave of absence to a Co-Chair on the terms and conditions that the Minister determines.
(2) A Co-Chair may grant leave of absence to an Advisory Committee member (other than a Co-Chair) on the terms and conditions that the Co-Chair determines.
3K Disclosure of interests to the Minister
An Advisory Committee member must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member's functions.
3L Disclosure of interests to the Advisory Committee
(1) An Advisory Committee member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Advisory Committee must disclose the nature of the interest to a meeting of the Advisory Committee.
(2) The disclosure must be made as soon as possible after the relevant facts have come to the Advisory Committee member's knowledge.
(3) The disclosure must be recorded in the minutes of the meeting.
(1) An Advisory Committee member may resign the member's appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
(1) The Minister may terminate the appointment of an Advisory Committee member:
(a) for misbehaviour; or
(b) if the Advisory Committee member is unable to perform the duties of the office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of an Advisory Committee member if:
(a) the Advisory Committee member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with the member's creditors; or
(iv) makes an assignment of the member's remuneration for the benefit of the member's creditors; or
(b) the Advisory Committee member fails, without reasonable excuse, to comply with clause 3K or 3L (which deal with disclosure of interests).
(3) The Minister must terminate the appointment of an Advisory Committee member if the Advisory Committee member is absent, except on leave of absence, from 3 consecutive meetings of the Advisory Committee.
An Advisory Committee member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) The regulations may prescribe the procedures to be followed at, or in relation to, meetings of the Advisory Committee, including matters relating to the following:
(a) convening meetings;
(b) the number of Advisory Committee members who are to constitute a quorum at a meeting;
(c) the selection of an Advisory Committee member to preside at a meeting in the absence of a Co-Chair;
(d) the manner in which questions arising at a meeting are to be decided;
(e) inviting persons with appropriate expertise or technical knowledge to attend meetings;
(f) keeping minutes of meetings.
(2) A resolution is taken to have been passed at a meeting of the Advisory Committee if:
(a) without meeting, a majority of Advisory Committee members indicate agreement with the resolution in accordance with the method determined by the Advisory Committee under subclause (3); and
(b) all Advisory Committee members were informed of the proposed resolution, or reasonable efforts had been made to inform all Advisory Committee members of the proposed resolution.
(3) Subclause (2) applies only if the Advisory Committee:
(a) determines that it applies; and
(b) determines the method by which Advisory Committee members are to indicate agreement with resolutions.
The Secretary of the Department must ensure that the Advisory Committee has the necessary administrative and other support to enable the Advisory Committee to perform its functions efficiently and effectively.
