WORK HEALTH AND SAFETY BILL 2012

An Act to provide for the health, safety and welfare of persons at work; to make consequential amendments to certain Acts; to repeal the Occupational Health, Safety and Welfare Act 1986; and for other purposes.

(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and

(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety; and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and

(d) promoting the provision of advice, information, education and training in relation to work health and safety; and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work, or from specified types of substances or plant, as is reasonably practicable.

Advisory Council means the SafeWork SA Advisory Council established under Schedule 2;

approved code of practice means a code of practice approved under Part 14;

authorising authority means the Industrial Relations Commission of South Australia;

compliance powers means the functions and powers conferred on an inspector under this Act;

corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law;

(i) any other Act brought within the ambit of this definition by the regulations; or

(j) a law of another Australian jurisdiction corresponding, or substantially corresponding, to this Act; or

(k) a law of another Australian jurisdiction brought within the ambit of this definition by the regulations;

Department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

disclose, in relation to information, includes divulge or communicate to any person or publish;

(b) a member of the South Australian Metropolitan Fire Service, the South Australian Country Fire Service or the South Australian State Emergency Service; or

employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth;

Executive Director means the person for the time being holding, or acting in, the position of Executive Director of that part of the Department that is directly involved in the administration and enforcement of this Act;

health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member;

industrial magistrate means a magistrate assigned by the Governor under section 19A of the Fair Work Act 1994 to be an industrial magistrate;

(a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or

personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth;

(b) an administrative unit or department within the Public Service of this or any other State, or of the Commonwealth;

reasonably practicable, in relation to a duty to ensure health and safety—see section 18;

relevant person conducting a business or undertaking, in Part 7—see section 116;

State or Territory industrial law has the same meaning as it has in the Fair Work Act;

structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes—

(a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and

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

(b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law;

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses);

(1) For the purposes of this Act, a person conducts a business or undertaking—

(a) whether the person conducts the business or undertaking alone or with others; and

(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

(1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.

(2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or

(4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if—

(a) the financier has, in the course of the financier's business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and

(b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier's customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier's customer.

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or

(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer.

(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

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

(1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.

(3) Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision.

(1) It is the intention of the Parliament of the State that this Act should, so far as possible, operate to the full extent of the extraterritorial legislative power of the State.

(2) Without limiting subsection (1), this Act applies in relation to work on a South Australian ship whether or not the ship is within the coastal waters of the State.

(ii) whose principal office or place of business with respect to the control or management of the ship is in the State.

(1) The provisions of this Act are in addition to and do not derogate from the provisions of any other Act.

(2) The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

This Subdivision sets out the principles that apply to all duties that persons have under this Act.

The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation.

A person can have more than one duty by virtue of being in more than one class of duty holder.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

(a) to eliminate risks to health and safety, so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(b) workers whose activities in carrying out work are influenced or directed by the person,

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a) the provision and maintenance of a work environment without risks to health and safety; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available,

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

Division 3—Further duties of persons conducting businesses or undertakings

20—Duty of persons conducting businesses or undertakings involving management or control of workplaces

person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include—

(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

21—Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include—

(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.

22—Duties of persons conducting businesses or undertakings that design plant, substances or structures

(1) This section applies to a person (the designer) who conducts a business or undertaking that designs—

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons—

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to—

(i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or

(iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or

(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).

(3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning—

(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) to (e).

(5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

23—Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

(1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures—

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons—

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to—

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

(3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—

(a) each purpose for which the plant, substance or structure was designed or manufactured; and

(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).

(5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

24—Duties of persons conducting businesses or undertakings that import plant, substances or structures

(1) This section applies to a person (the importer) who conducts a business or undertaking that imports—

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to—

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b) ensure that the calculations, analysis, testing or examination have been carried out.

(4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning—

(a) each purpose for which the plant, substance or structure was designed or manufactured; and

(5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

25—Duties of persons conducting businesses or undertakings that supply plant, substances or structures

(1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies—

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to—

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b) ensure that the calculations, analysis, testing or examination have been carried out.

(4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning—

(a) each purpose for which the plant, substance or structure was designed or manufactured; and

(5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

26—Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons—

(b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or

(c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or

(d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c).

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(a) to acquire and keep up-to-date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:

• ensuring the provision of training and instruction to workers about work health and safety;

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

A person at a workplace (whether or not the person has another duty under this Part) must—

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part.

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300 000 or 5 years imprisonment or both;

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600 000 or 5 years imprisonment or both;

(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000;

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000;

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000;

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000;

(1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.

(2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.

(a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and

(b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

serious injury or illness of a person means an injury or illness requiring the person to have—

(v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or

and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to—

(g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or

(i) the collapse or failure of an excavation or of any shoring supporting an excavation; or

(j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or

(k) the interruption of the main system of ventilation in an underground excavation or tunnel; or

(1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

(2) The notice must be given in accordance with this section and by the fastest possible means.

(b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made.

(5) A written notice must be in a form, or contain the details, approved by the regulator.

(6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking—

(7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section.

(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

(2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.

authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations.

A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if—

(a) the regulations require the workplace or workplaces in that class of workplace to be authorised; and

(a) the regulations require the plant or substance or its design to be authorised; and

(b) the plant or substance or its design is not authorised in accordance with the regulations.

(2) A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if—

(a) the regulations require the plant or substance or its design to be authorised; and

(b) the plant or substance or its design is not authorised in accordance with the regulations.

(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations.

(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations.

(a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

A person must comply with the conditions of any authorisation given to that person under the regulations.

Division 1—Consultation, co-operation and co-ordination between duty holders

If more than one person has a duty in respect of the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(i) to express their views and to raise work health or safety issues in relation to the matter; and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

Consultation under this Division is required in relation to the following health and safety matters:

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.

A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking.

(1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers.

(2) The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives.

(2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.

(a) the number and composition of work groups to be represented by health and safety representatives; and

(b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and

(4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

(6) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.

(1) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

(2) The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

(1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.

(a) the matters referred to in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires); or

(b) that work groups should not be determined or that the agreement should not be varied (as the case requires).

(a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after—

(b) agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence.

(1) Work groups may be determined for workers carrying out work for two or more persons conducting businesses or undertakings at one or more workplaces.

(2) The particulars of the work groups are to be determined by negotiation and agreement, in accordance with section 56, between each of the persons conducting the businesses or undertakings and the workers.

(3) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(4) The determination of one or more work groups under this Subdivision does not—

(a) prevent the determination under this Subdivision or Subdivision 2 of any other work group of the workers concerned; or

(b) affect any work groups of those workers that have already been determined under this Subdivision or Subdivision 2.

(1) Negotiations concerning work groups under this Subdivision must be directed only at the following:

(a) the number and composition of work groups to be represented by health and safety representatives;

(b) the number of health and safety representatives and deputy health and safety representatives (if any) for each work group;

(2) A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

(3) If agreement cannot be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this Subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.

(4) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

(1) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

(2) A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

58—Withdrawal from negotiations or agreement involving multiple businesses

(1) A party to a negotiation for an agreement, or to an agreement, concerning a work group under this Subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties.

(2) If a party withdraws from an agreement concerning a work group under this Subdivision—

(a) the other parties must negotiate a variation to the agreement in accordance with section 56; and

(b) the withdrawal does not affect the validity of the agreement between the other parties in the meantime.

To avoid doubt, nothing in this Subdivision affects the capacity of two or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this Part, concerning the representation of those workers.

(a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and

(b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.

(1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted.

(2) However, an election must comply with the procedures (if any) prescribed by the regulations.

(3) If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation.

(4) The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the regulations to enable elections to be conducted.

(1) A health and safety representative for a work group is to be elected by members of that work group.

(2) All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.

If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group.

(1) A health and safety representative for a work group holds office for 3 years.

(2) However a person ceases to hold office as a health and safety representative for a work group if—

(a) the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or

(b) the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or

(d) the person is removed from that position by a majority of the members of the work group in accordance with the regulations.

(1) An application may be made to the Senior Judge of the IRC for a review committee to disqualify a health and safety representative on the ground that the representative has—

(a) exercised a power or performed a function as a health and safety representative for an improper purpose; or

(b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

(i) the exercise of a power or the performance of a function referred to in subsection (1)(a); or

(3) If a review committee is satisfied that a ground in subsection (1) is made out, the review committee may disqualify the health and safety representative for a specified period or indefinitely.

A health and safety representative is not personally liable for anything done or omitted to be done in good faith—

(b) in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.

(1) Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group.

(2) If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act—

(a) the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and

(b) this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative.

(3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.

(1) The powers and functions of a health and safety representative for a work group are—

(a) to represent the workers in the work group in matters relating to work health and safety; and

(b) to monitor the measures taken by the person conducting the relevant business or undertaking, or that person's representative, in compliance with this Act in relation to workers in the work group; and

(d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2) In exercising a power or performing a function, the health and safety representative may—

(a) inspect the workplace or any part of the workplace at which a worker in the work group works—

(i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and

(ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and

(b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and

(c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and—

(ii) the person conducting the business or undertaking at that workplace or the person's representative; and

(d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(ii) the person conducting the business or undertaking at that workplace or the person's representative; and

(f) receive information concerning the work health and safety of workers in the work group; and

A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.

(3) Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that—

(b) could not reasonably be expected to lead to the identification of the worker.

(4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

(1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.

(a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates.

Subdivision 6—Obligations of person conducting business or undertaking to health and safety representatives

(a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and

(b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c) allow any health and safety representative for the work group to have access to information that the person has relating to—

(i) hazards (including associated risks) at the workplace affecting workers in the work group; and

(d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and—

(ii) the person conducting the business or undertaking at that workplace or the person's representative; and

(e) with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(ii) the person conducting the business or undertaking at that workplace or the person's representative; and

(f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act; and

(g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and

(h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works; and

(i) provide any other assistance to the health and safety representative for the work group that may be required by the regulations.

(2) The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act.

(3) Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(2) The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that—

(b) could not reasonably be expected to lead to the identification of the worker.

(3) The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 70(1)(g).

(4) The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace—

(b) during any period that the assistant's WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit.

(5) The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group.

(6) If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.

(1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is—

(b) a course that the health and safety representative is entitled under the regulations to attend; and

(c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking.

(a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training; and

(b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training.

(a) a health and safety representative represents a work group of the workers of more than one business or undertaking; and

(b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative,

each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative.

(4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1)(c) and (2), either party may ask the regulator to appoint an inspector to decide the matter.

(7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6).

(1) If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings—

(a) the costs of the representative exercising powers and performing functions under this Act; and

for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise.

(2) An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings.

(a) a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date; and

(ii) at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups,

in a manner that is readily accessible to workers in the relevant work group or work groups.

(2) A person conducting a business or undertaking must provide a copy of the up-to-date list prepared under subsection (1) to the regulator as soon as practicable after it is prepared.

(1) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking—

(i) a health and safety representative for a work group of workers carrying out work at that workplace; or

(b) if required by the regulations to do so, within the time prescribed by the regulations.

(2) A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person's own initiative.

If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see Division 2 of this Part.

(1) Subject to subsections (2) to (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace.

(2) If there is a health and safety representative at a workplace, that representative, if he or she consents, is a member of the committee.

(3) If there are 2 or more health and safety representatives at a workplace, those representatives may choose one or more of their number (who consent) to be members of the committee.

(4) At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking.

(5) If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter.

(6) An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established.

(7) A decision of an inspector under this section is taken to be an agreement under this section between the parties.

(a) to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work; and

(b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and

(c) any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee.

(b) at any reasonable time at the request of at least half of the members of the committee.

(1) The person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee.

(2) Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(3) The person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to—

(4) Despite subsection (3), the person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that—

(b) could not reasonably be expected to lead to the identification of the worker.

(a) the person conducting the business or undertaking or the person's representative;

(b) if the issue involves more than one business or undertaking, the person conducting each business or undertaking or the person's representative;

(c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative;

(d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.

(2) A person conducting a business or undertaking must ensure that the person's representative (if any) for the purposes of this Division—

(b) has an appropriate level of seniority, and is sufficiently competent, to act as the person's representative.

(1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.

(2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

(3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

(1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue.

(2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue.

(a) a worker from exercising the right under Division 6 of this Part to cease work; or

(b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work.

(4) On attending a workplace under this section, an inspector may exercise any of the inspector's compliance powers under this Act in relation to the workplace.

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.

(1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.

(2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after—

(a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and

(3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under Division 5 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4) The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5) The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.

(6) A health and safety representative cannot give a direction under this section unless the representative has—

(a) completed initial training prescribed by the regulations referred to in section 72(1)(b); or

(b) previously completed that training when acting as a health and safety representative for another work group; or

A worker who ceases work under this Division (otherwise than under a direction from a health and safety representative) must—

(a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative; and

If a worker ceases work under this Division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.

If a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work—

The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.

The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.

(1) This section applies if a health and safety representative reasonably believes that a person—

(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2) The health and safety representative may issue a provisional improvement notice requiring the person to—

(3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

(4) A health and safety representative cannot issue a provisional improvement notice unless the representative has—

(a) completed initial training prescribed by the regulations referred to in section 72(1)(b); or

(b) previously completed that training when acting as a health and safety representative for another work group; or

(5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

(ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and

(b) the provision the representative believes is being, or has been, contravened; and

(d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.

93—Provisional improvement notice may give directions to remedy contravention

(1) A provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates.

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

A health and safety representative may make minor changes to a provisional improvement notice—

A provisional improvement notice may be issued to a person in accordance with section 209.

The health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person.

(1) A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

(2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force.

(a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

(b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.

(1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace.

(2) The person must comply with the provisional improvement notice within the time specified in the notice.

(1) Within 7 days after a provisional improvement notice is issued to a person—

(b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work,

(2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.

(1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100.

(2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.

(3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

(3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act.

Nothing in this Part applies to a worker who is a prisoner in custody in a prison or police gaol.

(2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.

Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.

(1) For the purposes of this Part, a person engages in discriminatory conduct if—

(ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or

(d) the person refuses or fails to enter into a commercial arrangement with another person.

(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.

Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105(1)(c) or (d) (as the case requires)—

(a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee; or

(b) undertakes, has undertaken or proposes to undertake another role under this Act; or

(c) exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or

(d) exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or

(e) performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or

(f) refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or

(g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or

(h) raises or has raised or proposes to raise an issue or concern about work health and safety with—

(vii) any other person who has a duty under this Act in relation to the matter; or

(viii) any other person exercising a power or performing a function under this Act; or

(i) is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or

(j) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.

107—Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct

A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104.

Civil proceedings may be brought under Division 3 of this Part if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason.

(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person—

(a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act; or

(b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act; or

(c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way; or

Civil proceedings may be brought under Division 3 of this Part in relation to a contravention of this section.

(2) In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person.

(3) To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person.

(1) A person must not knowingly or recklessly make a false or misleading representation to another person about that other person's—

(b) ability to initiate, or participate in, a process or proceedings under this Act; or

(c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act.

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

(1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution—

(b) proves that a circumstance referred to in section 106(a) to (j) existed at the time the discriminatory conduct was engaged in.

(2) If it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.

(3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.

If a person is convicted or found guilty of an offence under section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders:

(a) an order that the offender pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate;

(b) in relation to a person who was or is an employee or prospective employee, an order that—

(i) the person be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or

(ii) the person be employed in the position for which he or she had applied or a similar position.

Division 3—Civil proceedings in relation to discriminatory or coercive conduct

112—Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct

(2) The IRC may make one or more of the orders set out in subsection (3) in relation to a person who has—

(b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or

(b) in the case of conduct referred to in subsection (2)(a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the IRC considers appropriate; or

(c) in the case of conduct referred to in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that—

(i) the worker be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or

(ii) the prospective worker be employed in the position for which he or she had applied or a similar position; or

(4) For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.

(5) Nothing in this section is to be construed as limiting any other power of the IRC.

(6) For the purposes of this section, each of the following is an eligible person:

(b) a person authorised as a representative by a person referred to in paragraph (a).

(1) A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued.

(2) In a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(3) It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) if the defendant proves that—

(b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(4) To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.

(1) The making of an order in a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct.

(2) If the IRC makes an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b), the court cannot make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct.

(3) If a court makes an order under section 111 in a proceeding for an offence under section 104 or 107, the IRC cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b) that is the same conduct.

(a) commence a proceeding under Division 3 of this Part if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn; or

(b) recover any compensation under Division 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State; or

(c) commence or continue an application under Division 3 of this Part if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers' compensation.

Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in relation to WHS civil penalty provisions.

official of a union means a person who holds an office in, or is an employee of, the union;

relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry;

(1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

(1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act:

(a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b) consult with the relevant workers in relation to the suspected contravention;

(d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

(e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

(2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

(4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

(1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to—

(3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120.

120—Entry to inspect employee records or information held by another person

(1) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act.

(2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of—

(a) employee records that are directly relevant to a suspected contravention; or

(b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking.

(3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking.

(5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

(1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions.

(2) A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

(1) Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking.

(3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.

(1) A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or under the Fair Work Act 1994.

(2) A person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act for the purposes of subsection (1).

A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under Division 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request.

A WHS entry permit holder may exercise a right under Division 2 or 3 of this Part only during the usual working hours at the workplace.

A WHS entry permit holder may exercise a right of entry to a workplace only in relation to—

(b) any other work area that directly affects the health or safety of those workers.

A WHS entry permit holder must not exercise a right of entry to a workplace under Division 2 or 3 of this Part unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with—

A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes.

(1) A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace.

(2) A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker.

(1) A union may apply to the authorising authority for the issue of a WHS entry permit to a person who is an official of the union.

(2) The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she—

(3) For the purposes of subsection (2)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act.

In considering whether to issue a WHS entry permit, the authorising authority must take into account—

(b) the object of allowing union right of entry to workplaces for work health and safety purposes.

(1) The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official—

(2) For the purposes of subsection (1)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act.

The authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133.

(1) Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur:

(b) at the end of the term of the entry permit held by the WHS entry permit holder under—

(ii) the Fair Work Act 1994 (being when the relevant person ceases to have a right of entry under section 140 of that Act);

(ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994.

(2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires.

(1) The following persons may apply to the authorising authority for a WHS entry permit held by a person to be revoked:

(c) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this Part;

(d) any other person affected by the exercise or purported exercise of a right under this Part by a WHS entry permit holder.

(a) that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth, or is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; or

(b) that the permit holder has contravened any condition of the WHS entry permit; or

(c) that the permit holder has acted or purported to act in an improper manner in the exercise of any right under this Act; or

(d) in exercising or purporting to exercise a right under this Part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace.

(3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned.

(4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application.

139—Authorising authority must permit WHS entry permit holder to show cause

(1) If, on an application under section 138, the authorising authority is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the authorising authority must—

(a) give the WHS entry permit holder written notice (a show cause notice); and

(b) if the authorising authority considers it appropriate, suspend the operation of the WHS entry permit until the authorising authority decides the application for revocation.

(a) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the authorising authority written reasons explaining why the WHS entry permit should not be revoked; and

(1) If the authorising authority is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make one or more of the following orders:

(d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked;

(e) an order imposing any alternative action the authorising authority considers appropriate.

(2) In deciding what action to take under subsection (1), in relation to a person, the authorising authority must take into account—

(a) the seriousness of any findings of the authorising authority having regard to the object of this Act; and

If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.

142—Authorising authority may deal with a dispute about a right of entry under this Act

(1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable).

(2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration.

(3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders:

(d) an order about the future issue of WHS entry permits to one or more persons;

(iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry;

(v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder;

(5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part.

(1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this Part.

(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace in accordance with this Part.

146—WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace

A WHS entry permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner.

that the doing of a thing is authorised by this Part if it is not so authorised.

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

A person must not use or disclose information or a document obtained under Division 2 of this Part in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless—

(a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent—

(b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or

(d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth):

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;

(ii) the enforcement of laws relating to the confiscation of the proceeds of crime;

(iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;

(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

(e) if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates.

(1) The person to whom a WHS entry permit is issued must return the permit to the authorising authority within 14 days of any of the following things happening:

(2) After the end of a period of suspension of a WHS entry permit, the authorising authority must return the WHS entry permit to the person to whom it was issued if—

(a) the person, or the person's union, applies to the authorising authority for the return of the permit; and

(b) the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth, (no matter when in force) cancelled or suspended or if the holder is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; or

(ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994.

The authorising authority must keep available for public access an up to date register of WHS entry permit holders in accordance with the regulations.

(a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;

(d) to collect, analyse and publish statistics relating to work health and safety;

(e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters;

(f) to promote and support education and training on matters relating to work health and safety;

(g) to engage in, promote and co-ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator;

(h) to conduct and defend proceedings under this Act before a court or tribunal;

(1) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act.

(1) The regulator may, by instrument in writing, delegate to any body or person (including a person for the time being holding or acting in a specified office or position) a power or function under this Act.

(3) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.

(1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act.

(2) The regulator may, by written notice served on the person, require the person to do one or more of the following:

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

(b) to produce to the regulator, in accordance with the notice, those documents;

(c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(b) contain a statement to the effect that a failure to comply with a requirement is an offence; and

(4) The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so.

(5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

(6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7) Section 172 (with any necessary changes) applies to a requirement under this section.

(1) The regulator may, by instrument, appoint any of the following as an inspector:

(2) Without limiting subsection (1), the following persons will be taken to have been appointed as inspectors:

(b) in relation to operations to which the Offshore Minerals Act 2000 applies—an inspector under that Act;

(e) any other person who may exercise statutory powers under another Act brought within the ambit of this subsection by the regulations.

(1) The regulator must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed by the regulations.

(2) An inspector must produce his or her identity card for inspection on request when exercising compliance powers.

(3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable.

(1) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector's functions.

(2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter.

(2) A person's appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector.

(ii) issues related to access to a workplace by an assistant to a health and safety representative; and

(iii) issues related to the exercise or purported exercise of a right of entry under Part 7;

(e) to investigate contraventions of this Act and assist in the prosecution of offences;

An inspector's compliance powers are subject to any conditions specified in the instrument of the inspector's appointment.

(1) An inspector is subject to the regulator's directions in the exercise of the inspector's compliance powers.

(2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

(1) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace.

(2) An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace.

(3) If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately.

(4) An inspector may enter any place if the entry is authorised by a search warrant.

An inspector may enter residential premises to gain access to a workplace (see section 170(c)).

(1) An inspector may enter a place under section 163 without prior notice to any person.

(2) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry:

(c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace.

(3) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay.

relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry.

(1) An inspector who enters a workplace under section 163 may do all or any of the following:

(d) take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings);

(e) take and remove for analysis a sample of any substance or thing without paying for it;

(f) require a person at the workplace to give the inspector reasonable help to exercise the inspector's powers under paragraphs (a) to (e);

(g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act.

(2) A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement.

(3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse.

(1) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 163 to assist the inspector if the inspector considers the assistance is necessary.

(a) may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise compliance powers; but

(b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant.

(3) Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector.

(2) Subject to subsection (6), the application must be sworn and state the grounds on which the warrant is sought.

(3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

The magistrate may require additional information supporting the application to be given by statutory declaration.

(4) The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and

(a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's compliance powers; and

(e) the date, within 7 days after the search warrant's issue, the search warrant ends.

(6) An inspector may apply to a magistrate for a search warrant by telephone, fax or other prescribed means if the inspector considers the urgency of the situation requires it and, in such a case, the following provisions will apply:

(a) the magistrate may complete and sign the warrant without the provision of sworn evidence and without a written application that states the grounds on which the warrant is sought if the magistrate is satisfied that there are reasonable grounds for issuing the warrant urgently;

(b) if the magistrate completes and signs a warrant under paragraph (a), the magistrate must then tell the inspector—

(i) complete a form of warrant in the same terms as the warrant signed by the magistrate and write on the form—

(ii) send the magistrate the completed form of warrant not later than the day after the warrant is executed or comes to an end;

(d) a form of warrant completed by an inspector under paragraph (c) has the same force and effect as a warrant issued by the magistrate under subsections (4) and (5).

(1) Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must—

(a) announce that he or she is authorised by the warrant to enter the place; and

(2) However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure—

169—Copy of warrant to be given to person with management or control of place

If the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must—

(a) identify himself or herself to that person by producing his or her identity card for inspection; and

Despite anything else in this Division, the powers of an inspector under this Division in relation to entering a place are not exercisable in relation to a part of a place that is used only for residential purposes except—

(i) if the inspector reasonably believes that no reasonable alternative access is available; and

(ii) at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought.

(a) require a person to tell the inspector who has custody of, or access to, a document; or

(b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period; or

(2) A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document.

(3) An interview conducted by an inspector under subsection (1)(c) must be conducted in private if—

(4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview.

(6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege.

(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

(1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

(2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

(1) Before requiring a person to answer a question or provide information or a document under this Part, an inspector must—

(a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and

(b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and

(2) It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this Part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c).

(3) Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person.

(a) make copies of, or take extracts from, a document given to the inspector in accordance with a requirement under this Act; and

(2) While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times:

(1) An inspector who enters a workplace under section 163 may seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act.

(2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued.

(3) An inspector may also seize anything else at the place if the inspector reasonably believes—

(b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence.

(1) This section applies if an inspector who enters a workplace under this Part reasonably believes that—

is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur.

(2) The inspector may seize the workplace or part, the plant, the substance or the structure.

(a) move the thing from the place where it was seized (the place of seizure); or

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

2 Sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted.

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

(3) To enable a thing to be seized, an inspector may require the person in control of it—

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

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

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

(6) The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5).

(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

(1) As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized.

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

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

(a) cannot find the person entitled to the thing after making reasonable inquiries; or

(b) cannot return it to the person entitled to it, after making reasonable efforts; or

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

(2) Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing.

(3) Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it.

(4) If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice.

(a) the regulator cannot find the person entitled to the thing, after making reasonable inquiries; or

(b) that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed; and

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

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

(8) Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person.

person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing.

(1) If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized.

(2) The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing.

(3) The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing.

person entitled to a thing means the person entitled to possess the thing or the owner of the thing.

(1) Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times:

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

In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable.

(1) This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power.

(2) The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing.

(3) If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector's or assistant's control, the inspector may state it in the notice.

(4) If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.

(5) This section does not apply to damage the inspector reasonably believes is trivial.

(1) A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under Division 3 of this Part.

(b) for an offence against this Act brought against the person claiming compensation.

(3) The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4) The regulations may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.

(1) An inspector may require a person to provide the person's name and residential address if—

(b) the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has committed an offence against this Act; or

(c) the inspector reasonably believes that the person may be able to assist in the investigation of an offence against this Act.

(2) When asking a person to provide his or her name and residential address, the inspector must—

(a) tell the person the reason for the requirement to provide his or her name and residential address; and

(b) warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse.

(3) If the inspector reasonably believes that the name or residential address is false, the inspector may require the person to give evidence of its correctness.

(4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3).

(5) Subsection (4) places an evidential burden on the accused to show a reasonable excuse.

An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers.

A work health and safety law of another jurisdiction may include a provision about the participation of inspectors appointed under a law of that jurisdiction in inquiries.

A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so.

A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.

A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector.

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

(ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and

(b) the provision the inspector believes is being, or has been, contravened; and

(d) the day by which the person is required to remedy the contravention or likely contravention.

(2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances.

The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.

(1) This section applies if a person has been issued with an improvement notice.

(2) An inspector may, by written notice given to the person, extend the compliance period for the improvement notice.

(3) However, the inspector may extend the compliance period only if the period has not ended.

compliance period means the period stated in the improvement notice under section 192, and includes that period as extended under this section.

(a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or

(b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

(2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.

(3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

(a) that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and

(b) briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk; and

(2) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1)(c).

(3) Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following:

(a) a workplace, or part of a workplace, at which the activity is not to be carried out;

The person to whom a direction is given under section 195(2) or a prohibition notice is issued must comply with the direction or notice.

An inspector may issue a non-disturbance notice to the person with management or control of a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers.

(a) preserve the site at which a notifiable incident has occurred for a specified period; or

(b) prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a specified period that is reasonable in the circumstances.

(2) A non-disturbance notice must specify the period (of no more than 7 days) for which it applies and set out—

(b) the measures to be taken to preserve a site or prevent disturbance of a site; and

(3) In subsection (1), a reference to a site includes any plant, substance, structure or thing associated with the site.

(1) A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.

(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

If an inspector considers it necessary to do so, he or she may issue one or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice, each of which must comply with section 199.

notice means improvement notice, prohibition notice or non-disturbance notice.

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

(2) An inspector may also, in accordance with section 194, extend the compliance period for an improvement notice.

Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator.

(a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

(b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person in accordance with section 209.

(a) by delivering it personally to the person or sending it by post or fax or electronic transmission to the person's usual or last known place of residence or business; or

(b) by leaving it for the person at the person's usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there; or

(c) by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace; or

(b) the steps a person to whom a notice is issued must take to bring it to the attention of other persons.

(1) A person to whom a notice is issued must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

(2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force.

(1) This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice.

(2) The regulator may take any remedial action the regulator believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of—

(b) a prohibition notice cannot be issued at a workplace because, after taking reasonable steps, the person with management or control of the workplace cannot be found.

(2) The regulator may take any remedial action necessary to make the workplace safe.

The regulator may recover the reasonable costs of any remedial action taken under—

(b) section 212 from any person to whom the prohibition notice could have been issued in relation to the matter,

notice means improvement notice, prohibition notice or non-disturbance notice.

(a) whether or not proceedings have been brought for an offence against this Act in connection with any matter in relation to which the notice was issued; and

(1) The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act.

Section 230(3) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings.

(2) A WHS undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence.

(3) The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.

(1) The regulator must give the person seeking to make a WHS undertaking written notice of the regulator's decision to accept or reject the WHS undertaking and of the reasons for the decision.

(2) The regulator must publish, on the regulator's website, notice of a decision to accept a WHS undertaking and the reasons for that decision.

A WHS undertaking takes effect and becomes enforceable when the regulator's decision to accept the undertaking is given to the person who made the undertaking or at any later date specified by the regulator.

A person must not contravene a WHS undertaking made by that person that is in effect.

(1) The regulator may apply to the Magistrates Court for an order if a person contravenes a WHS undertaking.

(2) If the court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make or both of the following orders:

(3) In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the State—

(b) the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future.

(4) Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the WHS undertaking relates.

Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.

(5) The court is to be constituted of an industrial magistrate for the purposes of this section.

(1) A person who has made a WHS undertaking may at any time, with the written agreement of the regulator—

(2) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of the Act.

(3) The regulator must publish, on the regulator's website, notice of the withdrawal or variation of a WHS undertaking.

(1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a WHS undertaking is in effect in relation to that contravention.

(2) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to the contravention and has completely discharged the WHS undertaking.

(3) The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to the contravention have been finalised.

(4) If the regulator accepts a WHS undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible.

(a) decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions); and

(b) who is eligible to apply for review of a reviewable decision (the eligible person).

Item	Provision under which reviewable decision is made	Eligible person in relation to reviewable decision
1	Section 54(2) (decision following failure to commence negotiations)	(1) A worker whose interests are affected by the decision or his or her representative appointed for the purpose of section 52(1)(b).
		(2) A person conducting a business or undertaking whose interests are affected by the decision.
		(3) A health and safety representative who represents a worker whose interests are affected by the decision.
2	Section 72(6) (decision in relation to training of health and safety representative)	(1) A person conducting a business or undertaking whose interests are affected by the decision.
		(2) A health and safety representative whose interests are affected by the decision.
3	Section 76(6) (decision relating to health and safety committee)	(1) A worker whose interests are affected by the decision.
		(2) A person conducting a business or undertaking whose interests are affected by the decision.
		(3) A health and safety representative who represents a worker whose interests are affected by the decision.
4	Section 102 (decision on review of provisional improvement notice)	(1) The person to whom the provisional improvement notice was issued.
		(2) The health and safety representative who issued the provisional improvement notice.
		(3) A worker whose interests are affected by the decision.
		(4) A health and safety representative who represents a worker whose interests are affected by the decision.
		(5) A person conducting a business or undertaking whose interests are affected by the decision.
5	Section 179 (forfeiture of thing)	The person entitled to the thing.
6	Section 180 (Return of seized things)	The person entitled to the thing.
7	Section 191 (issue of improvement notice)	(1) The person to whom the notice was issued.
		(2) A person conducting a business or undertaking whose interests are affected by the decision.
		(3) A worker whose interests are affected by the decision.
		(4) A health and safety representative who represents a worker whose interests are affected by the decision.
8	Section 194 (extension of time for compliance with improvement notice)	(1) The person to whom the notice was issued.
		(2) A person conducting a business or undertaking whose interests are affected by the decision.
		(3) A worker whose interests are affected by the decision.
		(4) A health and safety representative who represents a worker whose interests are affected by the decision.
9	Section 195 (issue of prohibition notice)	(1) The person to whom the notice was issued.
		(2) The person with management or control of the workplace, plant or substance.
		(3) A person conducting a business or undertaking whose interests are affected by the decision.
		(4) A worker whose interests are affected by the decision.
		(5) A health and safety representative who represents a worker whose interests are affected by the decision.
		(6) A health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice.
10	Section 198 (issue of a non-disturbance notice)	(1) The person to whom the notice was issued.
		(2) The person with management or control of the workplace.
		(3) A person conducting a business or undertaking whose interests are affected by the decision.
		(4) A worker whose interests are affected by the decision.
		(5) A health and safety representative who represents a worker whose interests are affected by the decision.
11	Section 201 (issue of subsequent notice)	(1) The person to whom the notice was issued.
		(2) The person with management or control of the workplace.
		(3) A person conducting a business or undertaking whose interests are affected by the decision.
		(4) A worker whose interests are affected by the decision.
		(5) A health and safety representative who represents a worker whose interests are affected by the decision.
12	Section 207 (decision of regulator to vary or cancel notice)	(1) The person to whom the notice was issued.
		(2) The person with management or control of the workplace.
		(3) A person conducting a business or undertaking whose interests are affected by the decision.
		(4) A worker whose interests are affected by the decision.
		(5) A health and safety representative who represents a worker whose interests are affected by the decision.
		(6) In the case of a prohibition notice, a health and safety representative whose direction under Section 85 to cease work gave rise to the notice.
13	A prescribed provision of the regulations	A person prescribed by the regulations as eligible to apply for review of the reviewable decision.

(2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to—

(a) making, suspending, revoking or refusing to make an order, determination or decision;

(b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission;

(d) imposing a condition;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, a thing; or

(g) doing or refusing to do any other act or thing.

(3) In this section—

person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing.

Division 2—Internal review

224—Application for internal review

(1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within—

(a) the prescribed time after the day on which the decision first came to the eligible person's notice; or

(b) such longer period as the regulator allows.

(2) The application must be made in the manner and form required by the regulator.

(3) For the purposes of this section—

prescribed time is—

(a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and

(b) in any other case, 14 days.

225—Internal reviewer

(1) The regulator may appoint a person or body to review decisions on applications under this Division.

(2) The person who made the decision cannot be an internal reviewer in relation to that decision.

226—Decision of internal reviewer

(1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received.

(2) The decision may be—

(a) to confirm or vary the reviewable decision; or

(b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.

(3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer.

(4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information.

(5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time.

(6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer.

227—Decision on internal review

As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing—

(a) the decision on the internal review; and

(b) the reasons for the decision.

228—Stays of reviewable decisions on internal review

(1) An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision.

(2) If an application is made for an internal review of a decision to issue a prohibition notice or a non-disturbance notice, the reviewer may stay the operation of the decision.

(3) The reviewer may make the decision to stay the operation of a decision on the reviewer's own initiative or on the application of the applicant for review.

(4) The reviewer must make a decision on an application for a stay within 1 working day after the reviewer received the application.

(5) If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay.

(6) A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier:

(a) the end of the prescribed period for applying for an external review of the decision made on the internal review;

(b) an application for external review is made.

Division 3—External review

229—Application for external review

(1) An eligible person may apply to the Senior Judge of the IRC for review (an external review) of—

(a) a reviewable decision made by the regulator; or

(b) a decision made, or taken to have been made, on an internal review.

(2) The application must be made—

(a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice; or

(b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice; or

(c) if the regulator is required by the external review body to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.

(3) The review will be conducted by a review committee.

(4) A review committee may, at the conclusion of a review on application under this section, make a decision—

(a) to confirm or vary the decision to which the application relates; or

(b) to set aside the decision to which the application relates and substitute another decision that the review committee considers appropriate.

(5) The Senior Judge of the IRC acting on behalf of a review committee may stay the operation of a reviewable decision that is subject to review proceedings under this section pending the outcome of the proceedings.

(6) The Senior Judge may make the decision to stay the operation of a decision on the Senior Judge's own initiative or on the application of the applicant for review.

Part 13—Legal proceedings

Division 1—General matters

230—Prosecutions

(1) Subject to subsection (9), proceedings for an offence against this Act may only be brought by—

(a) the regulator; or

(b) an inspector with the written authorisation of the regulator (either generally or in a particular case).

(2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.

(3) The regulator must issue, and publish on the regulator's website, general guidelines in relation to—

(a) the prosecution of offences under this Act; and

(b) the acceptance of WHS undertakings under this Act.

(4) Subject to subsection (6), an indictable offence against this Act may be charged on complaint and, in such a case, the offence will be taken to be a summary offence but if the court determines that a person found guilty of such an offence should be subject to a fine exceeding $300 000 the court may remand the defendant to appear for sentence in the District Court.

(5) An offence constituting a summary offence under subsection (4) will be taken to be an industrial offence that is to be heard by an industrial magistrate in accordance with the provisions of the Summary Procedure Act 1921.

(6) Subsection (4) does not apply to or in relation to—

(a) a Category 1 offence; or

(b) a Category 2 offence where the alleged offender is a body corporate; or

(7) A preliminary examination for an indictable offence under this Act must be conducted by the Magistrates Court of South Australia constituted by an industrial magistrate.

(8) A charge for a minor indictable offence under this Act that is to be dealt with as a charge for a summary offence under the Summary Procedure Act 1921 will be taken to be an industrial offence under that Act (and dealt with by an industrial magistrate).

(9) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.

231—Procedure if prosecution is not brought

(1) If—

(a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence; and

(b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence,

the person may make a written request to the regulator that a prosecution be brought.

(2) Within 3 months after the regulator receives a request the regulator must—

(a) advise the person (in writing)—

(i) whether the investigation is complete; and

(ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and

(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).

(3) If the regulator advises the person that a prosecution for a Category 1 or Category 2 offence will not be brought, the regulator must—

(a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration; and

(b) if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request.

(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought.

(5) The regulator must ensure a copy of the advice is given to—

(a) the person who made the request; and

(b) the person who the applicant believes committed the offence.

(6) If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).

(7) In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing.

232—Limitation period for prosecutions

(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur:

(a) within 2 years after the offence first comes to the notice of the regulator;

(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act;

(i) the WHS undertaking is contravened; or

(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened; or

(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.

(2) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.

233—Multiple contraventions of health and safety duty provision

(1) Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2) This section does not authorise contraventions of two or more health and safety duty provisions to be charged as a single offence.

(3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.

(4) In this section—

health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2.

Division 2—Sentencing for offences

234—Application of this Division

(1) This Division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act.

(2) A reference in this Division to a court is a reference to the court referred to in subsection (1).

235—Orders generally

(1) One or more orders may be made under this Division against the offender.

(2) Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

236—Adverse publicity orders

(1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender—

(a) to take either or both of the following actions within the period specified in the order:

(i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and

(b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.

(2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence.

(3) If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order.

(4) However, if—

(a) the offender gives evidence to the regulator in accordance with subsection (1)(b); and

(b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order,

the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions.

(5) If the regulator or a person authorised in writing by the regulator takes an action or actions in accordance with subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the regulator.

237—Orders for restoration

(1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy.

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

238—Work health and safety project orders

(1) The court may make an order requiring the offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order.

(2) The order may specify conditions that must be complied with in undertaking the specified project.

239—Release on the giving of a court-ordered WHS undertaking

(1) The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions (a court-ordered WHS undertaking).

(2) A court-ordered WHS undertaking must specify the following conditions:

(a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned;

(b) that the offender does not commit, during the period of the adjournment, any offence against this Act;

(3) An offender who has given a court-ordered WHS undertaking under this section may be called on to appear before the court by order of the court.

(4) An order under subsection (3) must be served on the offender not less than four days before the time specified in it for the appearance.

(5) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding.

240—Injunctions

If a court finds a person guilty of an offence against this Act, the court may issue an injunction requiring the person to cease contravening this Act.

Note—

An injunction may also be obtained under section 215 for non-compliance with a non-disturbance notice, improvement notice or prohibition notice.

241—Training orders

The court may make an order requiring the person to undertake or arrange for or more workers to undertake a specified course of training.

242—Offence to fail to comply with order

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

Maximum penalty:

(a) in the case of an individual—$50 000;

(b) in the case of a body corporate—$250 000.

(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

(3) This section does not apply to an order or injunction under section 239 or 240.

Division 3—Infringement notices

243—Infringement notices

A reference in this Act to an infringement notice will be taken to be a reference to an expiation notice issued under the Expiation of Offences Act 1996 (and an expiation notice may be issued with relation to any matter that may be the subject of an infringement notice under this Act).

Division 4—Offences by bodies corporate

244—Imputing conduct to bodies corporate

(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.

Division 5—The Crown

245—Offences and the Crown

(1) If the Crown is guilty of an offence against this Act, the penalty to be imposed on the Crown is the penalty applicable to a body corporate.

(2) For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.

(3) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness.

(4) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the Crown for that offence if the person referred to in subsection (2) made that mistake of fact.

246—WHS civil penalty provisions and the Crown

(1) If the Crown contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the Crown is the penalty applicable to a body corporate.

(2) For the purposes of a WHS civil penalty provision, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.

(3) If a WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the Crown for a contravention of that provision to prove that the person referred to in subsection (2) had that knowledge.

247—Officers

(1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act.

(2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.

248—Responsible agency for the Crown

(1) A provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice, infringement notice or notice of entry under Part 7 to be given to or served on the Crown under this Act may be given to or served on the responsible agency.

(2) If an infringement notice is to be served on the Crown for an offence against this Act, the responsible agency may be specified in the infringement notice.

(3) If proceedings are brought against the Crown for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be specified in any document initiating, or relating to, the proceedings.

(4) The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the Crown for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused or defendant in the proceedings are conferred or imposed on the responsible agency.

(5) The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court's leave.

(6) In this section—

responsible agency—

(a) in relation to a notice referred to in subsection (1) is—

(i) in the case of a provisional improvement notice, improvement notice or infringement notice, the agency of the Crown the acts or omissions of which are alleged to contravene this Act; and

(ii) in the case of a prohibition notice, the agency of the Crown which has control over the activity referred to in section 195(1)(a) or (b); and

(iii) in the case of a non-disturbance notice, the agency of the Crown with the management and control of the workplace; and

(iv) in the case of a notice of entry under Part 7, the agency of the Crown conducting the relevant business or undertaking or with the management and control of the workplace; and

(b) in relation to an offence or proceedings for a contravention of this Act, is the agency of the Crown—

(i) the acts or omissions of which are alleged to constitute the offence or contravention; or

(ii) if that agency has ceased to exist, that is the successor of that agency; or

(iii) if that agency has ceased to exist and there is no clear successor, that a court with jurisdiction to hear the relevant proceedings declares to be the responsible agency.

Division 6—Public authorities

249—Application to public authorities that are bodies corporate

This Division applies only to public authorities that are bodies corporate.

250—Proceedings against public authorities

(1) Proceedings may be brought under this Act against a public authority in its own name.

(2) Nothing in this Division affects any privileges that a public authority may have under the Crown.

251—Imputing conduct to public authorities

(1) For the purposes of this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority.

(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person referred to in subsection (1) made that mistake of fact.

252—Officer of public authority

A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act.

253—Proceedings against successors to public authorities

(1) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority.

(2) An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority.

(3) Similarly, any penalty paid by a public authority in relation to an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority.

Division 7—WHS civil penalty provisions

254—When is a provision a WHS civil penalty provision

(1) A subsection of Part 7 (or a section of Part 7 that is not divided into subsections) is a WHS civil penalty provision if—

(a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or

(b) another provision of Part 7 specifies that the subsection (or section) is a WHS civil penalty provision.

(2) A subregulation (or a regulation that is not divided into subregulations) is a WHS civil penalty provision if—

(a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subregulation (or regulation); or

(b) another provision of the regulations specifies that the subregulation (or regulation) is a WHS civil penalty provision.

255—Proceedings for contravention of WHS civil penalty provision

Subject to this Division, proceedings may be brought in the IRC against a person for a contravention of a WHS civil penalty provision.

256—Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil penalty provision if, and only if, the person—

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

257—Contravening a civil penalty provision is not an offence

A contravention of a WHS civil penalty provision is not an offence.

258—Civil proceeding rules and procedure to apply

The IRC must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision.

259—Proceeding for a contravention of a WHS civil penalty provision

(1) In a proceeding for a contravention of a WHS civil penalty provision, if the IRC is satisfied that a person has contravened a WHS civil penalty provision, the IRC may—

(a) order the person to pay a monetary penalty that the court considers appropriate; and

(b) make any other order that the IRC considers appropriate, including an injunction.

(2) A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty specified under Part 7 or the regulations in relation to a contravention of that WHS civil penalty provision.

260—Proceeding may be brought by the regulator or an inspector

Proceedings for a contravention of a WHS civil penalty provision may only be brought by—

(a) the regulator; or

(b) an inspector with the written authorisation of the regulator (either generally or in a particular case).

261—Limitation period for WHS civil penalty proceedings

Proceedings for a contravention of a WHS civil penalty provision may be brought within 2 years after the contravention first comes to the notice of the regulator.

262—Recovery of a monetary penalty

If the IRC orders a person to pay a monetary penalty—

(a) the penalty is payable to the State; and

(b) the State may enforce the order as if it were a judgment of the court.

263—Civil double jeopardy

The IRC must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention.

264—Criminal proceedings during civil proceedings

(1) Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if—

(a) criminal proceedings are commenced or have already commenced against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.

(2) The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence. Otherwise, the proceedings for the order are dismissed.

265—Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259.

266—Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings

(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if—

(a) the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.

(2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision.

Division 8—Civil liability not affected by this Act

267—Civil liability not affected by this Act

Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as—

(a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or

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

(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, with relation to breaches of duties or obligations imposed by the regulations.

Part 14—General

Division 1—General provisions

268—Offence to give false or misleading information

(1) A person must not give information in complying or purportedly complying with this Act that the person knows—

(a) to be false or misleading in a material particular; or

(b) omits any matter or thing without which the information is misleading.

Maximum penalty:

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

(2) A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without—

(a) indicating the respect in which it is false or misleading and, if practicable, providing correct information; or

(b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate—

(i) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

(ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

Maximum penalty:

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

(3) Subsection (2) places an evidential burden on the accused to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading.

269—Act does not affect legal professional privilege

Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.

270—Immunity from liability

(1) An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act.

(2) A civil liability that would, but for subsection (1), attach to a person, attaches instead to the State.

271—Confidentiality of information

(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).

(2) The person must not do any of the following:

(a) disclose to anyone else—

(i) the information; or

(ii) the contents of or information contained in the document;

(b) give access to the document to anyone else;

Maximum penalty:

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document—

(a) about a person, with the person's consent; or

(b) that is necessary for the exercise of a power or function under this Act; or

(c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use—

(i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or

(ii) is necessary for the administration or enforcement of another Act prescribed by the regulations; or

(iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or

(iv) is necessary for the recognition of authorisations under a corresponding WHS law; or

(v) is required for the exercise of a power or function under a corresponding WHS law; or

(d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or

(e) that is required or authorised under a law; or

(f) to a Minister.

(4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless—

(a) the disclosure is made with the consent of the complainant; or

(b) the disclosure is required under a law.

Maximum penalty:

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

272—No contracting out

A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.

273—Person not to levy workers

A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.

Maximum penalty:

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

Division 2—Codes of practice

274—Approved codes of practice

(1) The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.

(2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between—

(a) the Governments of the Commonwealth and each State and Territory; and

(b) unions; and

(3) A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether—

(a) with or without modification; or

(b) as in force at a particular time or from time to time.

(4) An approval of a code of practice, or a variation or revocation of an approved code of practice, takes effect when notice of it is published in the Government Gazette or on such later date as is specified in the approval, variation or revocation.

(5) As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or revocation is published in the Government Gazette and a newspaper circulating generally throughout the State.

(6) The regulator must ensure that a copy of—

(a) each code of practice that is currently approved; and

(b) each document applied, adopted or incorporated (to any extent) by an approved code of practice,

is available for inspection by members of the public without charge at the office of the regulator during normal business hours.

275—Use of codes of practice in proceedings

(1) This section applies in a proceeding for an offence against this Act.

(2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.

(3) The court may—

(a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and

(b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

Note—

See section 18 for the meaning of reasonably practicable.

(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.

Division 3—Regulation-making powers

276—Regulation-making powers

(1) The Governor may make regulations in relation to—

(a) any matter relating to work health and safety; and

(b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.

(2) Without limiting subsection (1), the regulations may make provision in relation to matters set out in Schedule 3.

(3) The regulations may—

(a) be of general or limited application; or

(b) differ according to differences in time, place or circumstance; or

(c) leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons; or

(d) apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether—

(i) with or without modification; or

(ii) as in force at a particular time or as in force or remade from time to time; or

(e) prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed; or

(f) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator; or

(g) prescribe fees for doing any act or providing any service for the purposes of this Act and prescribe the circumstances and way in which fees can be refunded, waived or reduced; or

(h) prescribe a penalty for any contravention of the regulations not exceeding $30 000; or

(i) prescribe—

(i) offences against this Act or the regulations that are to be taken to be infringement offences for the purposes of this Act; and

(ii) an expiation fee for each offence which is declared or prescribed by this Act or the regulations to be an infringement offence, which fee must not exceed 20% of the penalty for the offence which is declared or prescribed as the infringement offence.

Schedule 1—Application of Act to dangerous goods and high risk plant

1	This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work.
2	For the purposes of clause 1—
	(a) a reference in this Act to carrying out work includes a reference to the storage or handling of dangerous goods; and
	(b) a reference in this Act to a workplace includes a reference to the premises at or in which the dangerous goods are stored or handled; and
	(c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.
3	This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work.
4	For the purposes of clause 3—
	(a) a reference in this Act to carrying out work includes a reference to the operation and use of high risk plant affecting public safety; and
	(b) a reference in this Act to a workplace includes a reference to any high risk plant affecting public safety and the premises at or in which the plant is situated or used; and
	(c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.
5	The operation of this Schedule is subject to any exclusions or modifications prescribed by the regulations.
6	In this Schedule—
	*dangerous goods* means anything prescribed as dangerous goods;
	*high risk plant* means plant prescribed as high risk plant.

Schedule 2—Local tripartite consultation arrangements

Part 1—The SafeWork SA Advisory Council

Division 1—Establishment of Advisory Council

1—Establishment of Advisory Council

The SafeWork SA Advisory Council is established.

Division 2—Membership

2—Composition of the Advisory Council

(1) The Advisory Council consists of 11 members of whom—

(a) 9 will be appointed by the Governor and of these—

(i) 1 will be the presiding member appointed on the recommendation of the Minister; and

(ii) 4 will be persons who, in the opinion of the Minister, are suitable to represent the interests of employers (1 being a person considered by the Minister to be suitable to represent the interests of the public sector as an employer), appointed on the recommendation of the Minister after the Minister has consulted with Business SA, and with associations representing the interests of employers determined to be appropriate by the Minister; and

(iii) 4 will be persons who, in the opinion of the Minister, are suitable to represent the interests of employees (1 being a person considered by the Minister to be suitable to represent the interests of employees in the public sector), appointed on the recommendation of the Minister after the Minister has consulted with the United Trades and Labor Council, and with other associations representing the interests of employees determined to be appropriate by the Minister; and

(b) 1 will be the Executive Director (ex officio); and

(2) In proposing persons for appointment to the Advisory Council, an organisation or association consulted under subclause (1) should seek to promote gender balance, and diversity, in the membership of the Advisory Council.

(3) Subject to subclause (4), the Minister may appoint a suitable person to be a deputy of a member of the Advisory Council and to act as a member of the Advisory Council during any period of absence of the member.

(4) During the absence of the presiding member of the Advisory Council, the Executive Director will act in the position of the presiding member (and if the Executive Director is unavailable then a member of the Advisory Council appointed by the remaining members will act in the position of presiding member).

3—Terms and conditions of office

(1) An appointed member of the Advisory Council will hold office on conditions, and for a term (not exceeding 3 years), determined by the Governor and, on the expiration of a term of appointment, is eligible for reappointment.

(2) The Governor may remove an appointed member from office for—

(a) breach of, or non-compliance with, a condition of appointment; or

(b) mental or physical incapacity to carry out duties of office satisfactorily; or

(d) dishonourable conduct.

(3) The office of an appointed member becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not re-appointed; or

(d) is found guilty of an indictable offence; or

(e) is removed from office by the Governor under subclause (2).

(4) On the office of an appointed member of the Advisory Council becoming vacant, a person must be appointed, in accordance with this Act, to the vacant office.

(5) The Minister must ensure that a vacant office is filled within 6 months after the vacancy occurs.

4—Allowances and expenses

(1) An appointed member of the Advisory Council is entitled to fees, allowances and expenses approved by the Governor.

(2) The amount of any fees, allowances or expenses paid under subclause (1) will be recoverable from the Compensation Fund under the Workers Rehabilitation and Compensation Act 1986 under a scheme established or approved by the Treasurer.

5—Validity of acts

An act or proceeding of the Advisory Council is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

Division 3—Proceedings

6—Proceedings

(1) Six members of the Advisory Council, of whom—

(a) 1 is the presiding member, or the Executive Director acting in the absence of the presiding member (unless the Executive Director is unavailable); and

(b) at least 2 are members appointed to represent the interests of employers; and

constitute a quorum of the Advisory Council.

(2) When a matter arises for decision at a meeting of the Advisory Council—

(a) the members appointed to represent the interests of employers or employees will each have a deliberative vote; and

(b) if those deliberative votes are equal, the person presiding at the meeting does not have a casting vote.

(3) The members of the Advisory Council holding office under clause 2(1)(b) and (c) do not have a vote on any matter arising for decision at a meeting of the Advisory Council.

(4) A decision carried by a majority of the votes cast under subclause (2)(a) is a decision of the Advisory Council.

(5) A telephone or video conference between members of the Advisory Council constituted in accordance with procedures determined by the Advisory Council will, for the purposes of this clause, be taken to be a meeting of the Advisory Council at which the participating members are present.

(6) A resolution of the Advisory Council—

(a) of which notice was given to all members of the Advisory Council in accordance with procedures determined by the Advisory Council; and

(b) in which a majority of the members of the Advisory Council who would be entitled to vote under subclause (2) if the matter were before a meeting of the Advisory Council have expressed their concurrence in writing or in some other manner determined by the Advisory Council,

will be taken to be a decision of the Advisory Council made at a meeting of the Advisory Council.

(7) The Advisory Council must cause an accurate record to be kept of its proceedings.

(8) Subject to this Act, the proceedings of the Advisory Council will be conducted in a manner determined by the Advisory Council.

7—Conflict of interest under Public Sector (Honesty and Accountability) Act

(1) A member of the Advisory Council will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with employers or employees generally, or a substantial section of employers or employees.

(2) Despite the Public Sector (Honesty and Accountability) Act 1995, a member of the Advisory Council who has made a disclosure of an interest in a matter decided or under consideration by the Advisory Council may, with the permission of a majority of the members of the Advisory Council who may vote on the matter, attend or remain at a meeting when the matter is under consideration in order to ask or answer questions, or to provide any other information or material that may be relevant to the deliberations of the Advisory Council, provided that the member then withdraws from the room and does not in any other way take part in any deliberations or vote on the matter.

Division 4—Functions and powers

8—Functions of the Advisory Council

(1) The functions of the Advisory Council are—

(a) to keep the administration and enforcement of this Act, and any other legislation relevant to occupational health, safety and welfare, under review, and to make recommendations for change as the Advisory Council thinks fit; and

(b) to advise the Minister (on its own initiative or at the request of the Minister) on—

(i) legislation, regulations, codes, standards and policies relevant to occupational health, safety and welfare; and

(ii) national and international developments in the field of occupational health, safety and welfare; and

(iii) the establishment of public inquiries and legislative and other reviews concerning issues associated with occupational health, safety and welfare; and

(c) to provide a high level forum for ensuring consultation and co-operation between WorkCover, associations representing the interests of employees or employers, industry associations, Government agencies and other public authorities, and other interested persons or bodies, in relation to occupational health, safety or welfare matters; and

(d) to prepare, adopt, promote or endorse prevention strategies, standards, codes, guidelines or guidance notes, and to recommend practices, to assist people in connection with occupational health, safety and welfare; and

(e) to promote education and training with respect to occupational health, safety and welfare, to develop, support, accredit, approve or promote courses or programmes relating to occupational health, safety or welfare, and to accredit, approve or recognise education providers in the field of occupational health, safety and welfare; and

(f) to keep the provision of services relevant to occupational health, safety and welfare under review; and

(g) to collect, analyse and publish information and statistics relating to occupational health, safety or welfare; and

(h) to commission or sponsor research in relation to any matter relevant to occupational health, safety or welfare; and

(i) to initiate, co-ordinate or support projects and activities that promote public discussion or comment in relation to the development or operation of legislation, codes of practice and other material relevant to occupational health, safety or welfare; and

(j) to promote occupational health, safety or welfare programs, and to make recommendations with respect to the making of grants in support of projects and activities relevant to occupational health, safety or welfare; and

(k) to promote occupational health, safety and welfare within the broader community and to build the capacity and engagement of the community with respect to occupational health, safety and welfare; and

(l) to consult and co-operate with relevant national, State and Territory authorities; and

(m) to report to the Minister on any matter referred to the Advisory Council by the Minister; and

(n) as it thinks fit, to consider any other matter relevant to occupational health, safety or welfare; and

(o) to carry out other functions assigned to the Advisory Council by or under this or any other Act.

(2) The Advisory Council may, with the approval of the Minister—

(a) perform functions conferred on the Advisory Council by or under a law of the Commonwealth, another State or a Territory;

(b) confer (subject to conditions or limitations (if any) specified by the Minister) functions of the Advisory Council on an authority established by or under a law of the Commonwealth, another State or a Territory.

(3) The Advisory Council should seek—

(a) to ensure that South Australia takes advantage of initiatives that are recognised as being at the forefront of occupational health, safety and welfare practices; and

(b) insofar as to do so is in the best interests of the State, to achieve a high level of consistency between occupational health, safety and welfare standards and requirements under this Act and corresponding standards and requirements under the laws of the Commonwealth, the other States and the Territories.

(4) The Advisory Council should, as far as reasonably practicable, ensure that information provided for use in the workplace is in a language and form appropriate for those expected to make use of it.

(5) If the Minister receives a recommendation from the Advisory Council under this Act, the Minister should, within 2 months, respond in writing to the Advisory Council in relation to the recommendation.

(6) The Advisory Council may establish such committees and subcommittees as it thinks fit (which may, but need not, consist of, or include, members of the Advisory Council) to advise it on, or to assist it with respect to, any aspect of its functions under this Act.

(7) The Advisory Council has the power to do anything necessary, expedient or incidental to the performance of its functions.

Division 5—Use of staff and facilities

9—Use of staff and facilities

(1) The Advisory Council may, by agreement with the Minister responsible for an administrative unit in the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit.

(2) The Advisory Council may, by agreement with the relevant agency or instrumentality, make use of the services of the staff, equipment or facilities of any other agency or instrumentality of the Crown.

Division 6—Related matters

10—Confidentiality

A member of the Advisory Council who, as a member of the Advisory Council, acquires information that—

(a) the member knows to be of a commercially sensitive nature, or of a private confidential nature; or

(b) the Advisory Council classifies as confidential information,

must not divulge the information without the approval of the Advisory Council.

Maximum penalty: $10 000.

11—Annual report

(1) The Advisory Council must, on or before 30 September in each year, provide to the Minister a report on the work of the Advisory Council, and on other matters relevant to the operation and administration of this Act, for the financial year ending on the preceding 30 June.

(2) A report under this clause may be incorporated into the annual report of the Department.

(3) The Minister must cause a copy of a report prepared under subclause (1) to be laid before both Houses of Parliament within 12 sitting days after the report is received by the Minister.

Part 2—The Mining and Quarrying Occupational Health and Safety Committee

12—The Committee

(1) The Mining and Quarrying Occupational Health and Safety Committee (the Committee) continues in existence.

(2) The Committee will consist of 7 persons appointed by the Minister, of whom—

(a) 2 will be persons working in the field of occupational health and safety nominated by the Advisory Council; and

(b) 1 will be a member of the Department who has experience in the mining and quarrying industries; and

(c) 1 will be a person nominated by the South Australian Chamber of Mines and Energy, and 1 will be a person nominated by Cement Concrete and Aggregates Australia, to represent the interests of employers involved in the mining and quarrying industries; and

(d) 2 will be persons nominated by the United Trades and Labor Council to represent the interests of workers who work in the mining and quarrying industries.

(3) The Minister will appoint 1 of the members of the Committee appointed under subclause (2)(a) to be the presiding member of the Committee.

(4) The Minister may appoint a suitable person to be a deputy of a member of the Committee and to act as a member of the Committee during any period of absence of the member.

(5) A member of the Committee may be appointed for a term (not exceeding 3 years) determined by the Minister and, on the expiration of a term of appointment, is eligible for reappointment.

(6) The Minister may, on reasonable grounds, remove a member of the Committee from office at any time.

(7) A member of the Committee may resign by written notice addressed to the Minister.

(8) An act or proceeding of the Committee is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

(9) Four members of the Committee constitute a quorum of the Committee.

(10) In the absence of the presiding member at a meeting of the Committee, the members present may decide who is to preside.

(11) A decision carried by at least 4 members of the Committee is a decision of the Committee.

(12) Each member present at a meeting of the Committee is entitled to 1 vote on any matter arising for decision at the meeting.

(13) The Committee must cause an accurate record to be kept of its proceedings.

(14) Subject to this Schedule, the business of the Committee will be conducted in a manner determined by the Committee.

(15) A member of the Committee who has a direct or indirect pecuniary interest in a matter under consideration by the Committee—

(a) must disclose the nature of the interest to the Committee; and

(b) must not take part in any deliberation or decision of the Committee with respect to the matter.

Maximum penalty: $2 000.

(16) A disclosure under subclause (15) must be recorded in the minutes of the Committee.

(17) The Committee may, in connection with the performance of its functions, make use of the services, facilities and staff of the Department.

13—Application of funds

(1) Money available to the Committee from the Mining and Quarrying Industries Fund under Schedule 1 of the Workers Rehabilitation and Compensation Act 1986 may be used for any of the following purposes:

(a) to promote and support practices, procedures and arrangements designed to protect workers from silicosis;

(b) to support education in the field of occupational health or safety in the mining and quarrying industries;

(c) to initiate or support research and studies into occupational health or safety that could benefit workers in the mining and quarrying industries;

(d) to promote and support persons or organisations working to prevent, alleviate or treat the kinds of disabilities suffered by workers in the mining and quarrying industries;

(e) to support any other kind of activity that could directly or indirectly improve occupational health or safety in the mining and quarrying industries or assist in the rehabilitation of disabled workers in those industries.

(2) The Committee has all such powers as are reasonably necessary for the effective performance of its functions (including the power to establish subcommittees and to engage, as may be appropriate, experts or consultants to assist the Committee in the performance of its functions).

(3) The Committee must, in making grants of money under this Schedule, give preference to supporting projects directed at improving occupational health or safety in those industries that involve exposure to silica dust and in particular to supporting specialised research and training projects directed at that purpose in South Australia.

(4) The Committee must not spend any part of the principal standing to the credit of Part B of the Mining and Quarrying Industries Fund without the specific approval of the Minister and in any case the Committee is not to spend in any financial year more than 20% of the principal that, at the commencement of that financial year, is standing to the credit of that part of the fund.

(5) The Committee must after the end of each financial year prepare a report on its operations during that financial year.

(6) The report must be submitted to the Minister in conjunction with the annual report of the Advisory Council for the relevant financial year (and laid before both Houses of Parliament by the Minister together with the Advisory Council's annual report).

14—Ministerial control

The Committee is, in the performance of its functions, subject to the control and direction of the Minister.

Schedule 3—Regulation-making powers

1—Duties

(1) Matters relating to the way in which duties imposed by this Act are to be performed.

(2) Matters relating to the regulation or prohibition of specified activities or a specified class of activities—

(a) at workplaces or a specified class of workplaces; or

(b) by a specified class of persons on whom duties or obligations are imposed by this Act,

to eliminate or minimise risks to health and safety.

(3) Imposing duties on persons in relation to any matter provided for under the regulations.

2—Incidents

Matters relating to incidents at workplaces including—

(a) regulating or requiring the taking of any action to avoid an incident at a workplace or in the course of conducting a business or undertaking; and

(b) regulating, requiring or prohibiting the taking of any action in the event of an incident at a workplace or in the conduct of a business or undertaking.

3—Plant, substances or structures

Matters relating to plant, substances or structures, including—

(a) regulating the storage and handling of plant, substances and structures; and

(b) regulating or requiring—

(i) the examination, testing, labelling, maintenance or repair of plant and structures; or

(ii) the examination, testing, analysis or labelling of any substance.

4—Protection and welfare of workers

Matters relating to the protection and welfare of workers including—

(a) regulating or requiring the provision and use of protective clothing or equipment, or rescue equipment, in specified circumstances; and

(b) regulating or requiring the provision of specified facilities for the welfare of workers at the workplace; and

5—Hazards and risks

Matters relating to hazards and risks including—

(a) the prescribing of standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard; and

(b) matters relating to safety cases, safety management plans and safety management systems (however described); and

6—Records and notices

(1) The keeping and availability of records of health and safety representatives and deputy health and safety representatives.

(2) The keeping of records in relation to incidents.

(3) The keeping of records of specified activities, matters or things to be kept by specified persons.

(4) The giving of notice of or information about specified activities, matters or things to the regulator, an inspector or other specified person.

7—Authorisations

(1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for—

(a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation; and

(b) the evidence and information to be provided in relation to applications including the provision of statutory declarations; and

(d) variations of authorisations by the regulator whether on application or otherwise; and

(e) authorisation of persons as trainers and assessors; and

(f) examination of applicants for authorisations; and

(g) conditions of authorisations; and

(h) fees for applications for the grant, issue, renewal and variation of authorisations.

(2) The recognition of authorisations under corresponding WHS laws and exceptions to recognition.

(3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations.

8—Work groups

Matters relating to work groups and variation of work groups and agreements or variations of agreements relating to the determination of work groups.

9—Health and safety committees and health and safety representatives

Matters relating to health and safety committees and health and safety representatives.

10—Issue resolution

Matters relating to issue resolution including—

(a) the minimum requirements for an agreed procedure for resolving an issue; and

(b) the requirements for a default issue resolution procedure where there is no agreed procedure.

11—WHS entry permits

Matters relating to WHS entry permits, including providing for—

(a) eligibility for WHS entry permits; and

(b) procedures for applications for WHS entry permits and objections to applications for WHS entry permits; and

(d) the form of WHS entry permits; and

(e) requirements for training; and

(f) records of WHS entry permits.

12—Identity cards

Matters relating to identity cards.

13—Forfeiture

Matters relating to—

(a) costs of forfeiture and disposal of forfeited things; and

(b) disposal of seized things and forfeited things.

14—Review of decisions

Matters relating to the review of decisions under the regulations including—

(a) prescribing decisions as reviewable decisions for the purposes of Part 12 and conferring jurisdiction on the IRC to conduct reviews; and

(b) prescribing procedures for internal and external review of decisions under the regulations; and

Schedule 4—Review committees

1—Review committees

There will be such review committees as are necessary for the purposes of this Act.

2—Constitution of review committees

(1) A review committee will be constituted in relation to particular proceedings by the Senior Judge of the IRC.

(2) The Senior Judge of the IRC will constitute a review committee by appointing 1 member from each of the panels constituted under subclause (3) to the committee.

(3) For the purpose of constituting review committees there will be—

(a) a panel of Judges of the IRC and Industrial Magistrates appointed by the Senior Judge; and

(b) a panel of members nominated by the Minister after taking into account the recommendations of employer associations; and

(c) a panel of members nominated by the Minister after taking into account the recommendations of the United Trades and Labor Council.

(4) A person ceases to be a member of a panel if that person—

(a) resigns by written notice addressed to the Senior Judge of the IRC; or

(b) in the case of a panel under subclause (3)(b) or (c), is removed from the panel by the Minister on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out satisfactorily the duties of office; or

(c) has completed a period of 3 years since being appointed to the panel, or last appointed to the panel, and is not reappointed to the panel.

(5) A member of a panel under subclause (3)(b) or (c), is entitled to such fees, allowances and expenses as the Governor may approve.

(6) Despite subclause (2), the Senior Judge of the IRC may, in a special case, constitute a review committee solely of a Judge of the IRC or an Industrial Magistrate (and this Schedule will then apply with respect to the relevant proceedings with such modifications or variations as may be necessary or appropriate, or as may be prescribed).

3—Procedures of the committee

(1) The member of a review committee appointed from the panel of Judges and Industrial Magistrates will preside at any proceedings of the review committee.

(2) A decision in which any 2 members of a review committee concur is a decision of the committee.

(3) A review committee—

(a) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and

(b) is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit.

(4) A review committee must give reasonable notice to the parties to proceedings before it of the time and place of those proceedings and afford the parties a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions.

(5) In the exercise of its powers and functions, a review committee may—

(a) by summons signed by the presiding member of the committee, require the attendance before the committee of any person; and

(b) by summons signed by the presiding member of the review committee, require the production of any document, object or material; and

(c) require any person appearing before the review committee to answer any relevant questions put by the committee, any member of the committee or by any person appearing before the committee.

(6) If—

(a) the native language of a person who is to give oral evidence in any proceedings before a review committee is not English; and

(b) the witness is not reasonably fluent in English,

the person is entitled to give that evidence through an interpreter.

(7) A person may present written evidence to a review committee in a language other than English if that written evidence has annexed to it—

(a) a translation of the evidence into English; and

(b) an affidavit by the translator to the effect that the translation accurately reproduces in English the contents of the original evidence.

(8) If a person—

(a) who has been served with a summons to attend before a review committee fails without reasonable excuse to attend in obedience to the summons; or

(b) who has been served with a summons to produce any document, object or material, fails without reasonable excuse to comply with the summons; or

(c) misbehaves before a review committee, wilfully insults a review committee or any member of a review committee, or interrupts the proceedings of a review committee; or

(d) refuses to answer any relevant question when required to do so by a review committee,

that person is guilty of an offence.

Maximum penalty: $10 000.

(9) A person is not obliged to answer a question under this clause if the answer would tend to incriminate that person of an offence, or to produce a document, object or material if it or its contents would tend to incriminate that person of an offence.

(10) A review committee may—

(a) refer any technical matter to an expert;

(b) accept the evidence or report of an expert.

(11) A person is entitled to appear personally, or by representative, in proceedings before a review committee.

(12) A person who appears as a witness in proceedings before a review committee is, subject to any contrary direction by the review committee, entitled to reimbursement of expenses in accordance with the regulations.

(13) A review committee should hear and determine any matter referred to it as expeditiously as possible.

(14) Except as provided by this clause, the proceedings of a review committee may be conducted in such manner as the review committee determines.

4—Appeals

(1) A party to proceedings before a review committee may appeal to the Supreme Court against a decision of the committee in those proceedings.

(2) For the purposes of an appeal under this clause, the Supreme Court may be constituted of a single Judge.

(3) An appeal under this clause may be on a question of law or a question of fact.

(4) An appeal on a question of fact may only occur with the permission of the Supreme Court (which should only be granted where special reasons are shown).

(5) An appeal under this clause must be instituted within 21 days of the decision appealed against unless the Supreme Court, in its discretion, allows a longer time for the institution of an appeal.

(6) The Supreme Court may if it thinks fit make an interim order suspending the operation of a decision, notice or order pending the determination of an appeal.

(7) An order under subclause (6) may be made subject to such conditions as the Supreme Court may determine to protect the health or safety of any person at work.

5—Immunity of members

No personal liability attaches to a member of a review committee for an act or omission by the member in good faith in the exercise or discharge or purported exercise or discharge of a power or function of the member under this Act.

Schedule 5—Provisions of local application

1—Provision of information by WorkCover

(1) WorkCover will, to the extent required by a scheme established by the Minister after consultation with WorkCover, furnish to the Advisory Council and the Department, in accordance with the terms of the scheme, any of the following information obtained by WorkCover in the performance or exercise of its functions or powers under a related Act:

(a) information about any work-related injury, or about any specified class of work-related injury, reported to or investigated by WorkCover;

(b) the steps being taken by any employer, or any employer of a specified class, to protect employees from injury or risks to health, safety or welfare, or to assist in the rehabilitation of employees who have suffered injuries in connection with their work;

(c) information relating to the cost or frequency of claims involving a particular employer, or class of employers, so as to allow comparisons between employers in a particular industry, or part of an industry;

(d) the outcome of any investigation, inquiry or other action undertaken by WorkCover;

(e) other information of a kind prescribed by the regulations.

(2) To avoid doubt, section 112 of the Workers Rehabilitation and Compensation Act 1986 does not apply in relation to the disclosure of information under subclause (1).

(3) In this clause—

related Act means—

(a) the WorkCover Corporation Act 1994; and

(b) the Workers Rehabilitation and Compensation Act 1986.

2—Registration of employers

(1) Subject to subclause (2), a person who is required to be registered as an employer under the Workers Rehabilitation and Compensation Act 1986 is also required to be registered under this Act.

(2) A person is not required to be registered if the person is exempt from the obligation to be registered by the regulations.

(3) WorkCover will undertake registrations under this clause in conjunction with the registration of employers under the Workers Rehabilitation and Compensation Act 1986.

(4) A periodical fee is payable in relation to a registration under this clause.

(5) Subject to this clause, the amount of the fee will be set by WorkCover—

(a) taking into account the criteria prescribed by or under subclause (6); and

(b) on the basis that the total amount paid to WorkCover for a particular financial year by persons registered under this clause should, so far as is reasonably practicable, equal the prescribed amount for that financial year.

(6) For the purposes of subclause (5)(a), the criteria to be taken into account are—

(a) that the fee or fees paid by a particular person should reflect the aggregate remuneration paid to the person's employees in each class of industry in which the person employs employees; and

(b) that the fee or fees paid by a person in a particular industry should reflect the risk of work-related injuries in that industry; and

(c) that the fee or fees paid by a particular person over a particular financial year should reflect any matters taken into account by WorkCover under section 67 of the Workers Rehabilitation and Compensation Act 1986 for the purposes of the calculation or imposition of a levy under that Act,

and such other criteria as may be prescribed by the regulations (which regulations may, if they so provide, revoke or replace any of the criteria referred to above).

(7) A prescribed percentage of the prescribed amount for a particular financial year will be payable to the Department in accordance with guidelines established by the Treasurer.

(8) The prescribed amount for a financial year will be an amount fixed for that financial year by the regulations (but if any such regulation is not made before the commencement of the relevant financial year, or is disallowed or revoked, then the prescribed amount for that financial year will be the amount that applied under this clause for the preceding financial year).

(9) Subclause (5)(b) is subject to the following qualifications:

(a) if the total amount paid under this clause for a particular financial year exceeds the prescribed amount for that year, the amount that is sought to be recovered under subclause (5)(b) for the next financial year should be the prescribed amount for that year less the amount of that excess;

(b) if the total amount paid under this clause for a particular financial year is less than the prescribed amount for that year, the amount that is sought to be recovered under subclause (5)(b) for the next financial year should be the prescribed amount for that year plus the amount of that deficiency.

(10) A fee imposed under this clause will be payable to WorkCover in accordance with the regulations.

(11) If a person fails to pay a fee, or the full amount of a fee, in accordance with the regulations, WorkCover may recover the unpaid amount as if it were unpaid levy under Part 5 of the Workers Rehabilitation and Compensation Act 1986.

(12) The Department is entitled to information provided to WorkCover for the purposes of this clause.

(13) A person who fails to comply with this clause is guilty of an offence.

Maximum penalty: $10 000.

3—Portion of WorkCover levy to be used to improve occupational health and safety

(1) A part of the levy paid to WorkCover under Part 5 of the Workers Rehabilitation and Compensation Act 1986 in any financial year will be payable by WorkCover to the Department to be applied towards the costs associated with the administration of this Act.

(2) The amount payable under subclause (1) will be—

(a) a set amount in respect of a particular financial year; or

(b) a percentage of the levy paid to WorkCover in respect of a particular financial year,

as determined by the Minister by notice in the Gazette.

(3) The Minister must consult with the board of management of WorkCover before making a determination under subclause (2).

(4) If there is a disagreement between the Minister and the board of management of WorkCover as to the amount to be paid under subclause (1) in respect of a particular year, the board of management may, after publication of the determination under subclause (2), furnish to the Minister a written statement setting out its reasons for its disagreement with the Minister.

(5) If a statement is furnished under subclause (4), the Minister must cause copies of the statement to be laid before both Houses of Parliament within 12 sitting days after the statement is received by the Minister.

(6) A payment to the Department with respect to a financial year must be made (according to a determination of the Minister)—

(a) by instalments paid over a period specified by the Minister after consultation with the Treasurer; or

(b) by a lump sum paid by a date specified by the Minister after consultation with the Treasurer.

(7) The Minister may, by notice in the Gazette, vary an earlier notice published under subclause (2).

Schedule 6—Consequential amendments, repeal and transitional provisions

Part 1—Related amendments

1—Amendment provisions

In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

2—Amendment of section 19—Limitations on sentencing powers of Magistrates Court

Section 19(3)(b)(i)—delete "the Occupational Health, Safety and Welfare Act 1986" and substitute:

the Work Health and Safety Act 2011

Part 3—Amendment of Dangerous Substances Act 1979

3—Amendment of section 14—Offence to keep dangerous substances without a licence

Section 14(2)—delete subsection (2) and substitute:

(2) The regulations may—

(a) prescribe cases or circumstances in relation to which this Division does not apply;

(b) exempt (either absolutely or subject to conditions or limitations) a specified person or class of persons from the requirement to be licensed under this Division.

4—Amendment of section 18—Offence to convey dangerous substances without a licence

Section 18(2)—delete subsection (2) and substitute:

(2) The regulations may—

(a) prescribe cases or circumstances in relation to which this Division does not apply;

(b) exempt (either absolutely or subject to conditions or limitations) a specified person or class of persons from the requirement to be licensed under this Division.

Part 4—Amendment of Environment Protection Act 1993

5—Amendment of Schedule 1—Prescribed activities of environmental significance

Schedule 1, clause 7(2)(d)(vii)—delete subparagraph (vii) substitute:

(vii) a railway used as an amusement device under the Work Health and Safety Act 2011; or

Part 5—Amendment of Mines and Works Inspection Act 1920

6—Amendment of section 18—Regulations

Section 18(2a)(a)—delete "issued by the South Australian Occupational Health and Safety Commission" and substitute:

approved by the relevant Minister under Part 14 Division 2 of the Work Health and Safety Act 2011

Part 6—Amendment of Tobacco Products Regulation Act 1997

7—Amendment of section 4—Interpretation

(1) Section 4(1), definition of employee—delete the definition and substitute:

contract of service means—

(a) a contract under which 1 person is employed by another; or

(b) a training contract under Part 4 of the Training and Skills Development Act 2008; or

employee means a person who is employed under a contract of service or who works under a contract of service;

(2) Section 4(1), definition of workplace—delete " Occupational Health, Safety and Welfare Act 1986" and substitute:

Work Health and Safety Act 2011

8—Amendment of section 46—Smoking banned in enclosed public places, workplaces and shared areas

Section 46(4)—delete "Occupational Health, Safety and Welfare Act 1986" and substitute:

Work Health and Safety Act 2011

Part 7—Amendment of Workers Rehabilitation and Compensation Act 1986

9—Amendment of section 64—Compensation Fund

Section 64(3)(e)—delete "Occupational Health, Safety and Welfare Act 1986" and substitute:

Work Health and Safety Act 2011

10—Amendment of Schedule 1—Transitional provisions

Schedule 1, clause 4(3)—delete "Schedule 3 of the Occupational Health, Safety and Welfare Act 1986 for the purposes referred to in that Schedule" and substitute:

Part 2 of Schedule 2 of the Work Health and Safety Act 2011 for the purposes referred to in that Part

Part 8—Repeal

11—Repeal of Act

The Occupational Health, Safety and Welfare Act 1986 is repealed.

Part 9—Transitional provisions

12—Interpretation

In this Part—

relevant day means the day on which this Part comes into operation;

repealed Act means the Occupational Health, Safety and Welfare Act 1986.

13—Duties of designers

(1) Subject to this clause, the duties imposed on a designer under section 22 of this Act do not apply to or in relation to the designing of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the designer commenced (or commenced and completed) designing the plant, substance or structure before the relevant day.

(2) If—

(a) subclause (1) applies in relation to a particular design; and

(b) the designer would be subject to the operation of section 23A or 24 of the repealed Act if those sections were still in operation,

then—

(c) the designer must comply with the relevant requirements of those sections as if the repealed Act were still in operation; and

(d) if the designer fails to comply with paragraph (c), then action may be brought against the designer (including by the undertaking of a prosecution) as if the repealed Act were still in operation.

(3) If a designer commenced designing any plant, substance or structure before the relevant day but has not completed the design by the second anniversary of the relevant day, then the designer will, in relation to the design, cease to have the benefit of subclause (1) and the designer must comply with the requirements of this Act in relation to the duties of a designer (as if this Act had been in operation at the time that the designer commenced designing).

(4) Despite a preceding subclause, if—

(a) a designer carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the repealed Act (as taken to be in operation under subclause (2)(d)); and

(b) the designer would, if the calculations, analysis, testing or examination were carried out under this Act, be subject to a requirement set out in section 22(4)(b) or (5) of this Act,

then the designer must comply with those requirements as if that section applied in relation to the plant, substance or structure.

14—Duties of manufacturers

(1) Subject to this clause, the duties imposed on a manufacturer under section 23 of this Act do not apply to or in relation to the manufacture of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the manufacturer commenced (or commenced and completed) any process associated with the manufacturing of the plant, substance or structure before the relevant day.

(2) If—

(a) subclause (1) applies in relation to the manufacture of any particular plant, substance or structure; and

(b) the manufacturer would be subject to the operation of section 24 of the repealed Act if that section were still in operation,

then—

(c) the manufacturer must comply with the relevant requirements of that section as if the repealed Act were in operation; and

(d) if the manufacturer fails to comply with paragraph (c), then action may be brought against the manufacturer (including by the undertaking of a prosecution) as if the repealed Act were still in operation.

(3) If a manufacturer commenced any process associated with the manufacturing of any plant, substance or structure before the relevant day but has not completed the manufacturing by the first anniversary of the relevant day, then the manufacturer will, in relation to the manufacture of the plant, substance or structure, cease to have the benefit of subclause (1) and the manufacturer must comply with the requirements of the Act in relation to the duties of a manufacturer (as if this Act had been in operation at the time that the manufacturer commenced this process).

(4) Despite a preceding subclause, if—

(a) a manufacturer carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the repealed Act (as taken to be in operation under subclause (2)(d)); and

(b) the manufacturer would, if the calculations, analysis, testing or examination were carried out under this Act, be subject to a requirement set out in section 23(4)(b) or (5) of this Act,

then the manufacturer must comply with those requirements as if that section applied in relation to the plant, substance or structure.

15—Duties of importers

(1) Subject to this clause, the duties imposed on an importer under section 24 of this Act do not apply to or in relation to the importing of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the importer commenced (or commenced and completed) any steps constituting the importation of the plant, substance or structure before the relevant day.

(2) If—

(a) subclause (1) applies in relation the importing of any particular plant, substance or structure; and

(b) the importer would be subject to the operation of section 24 of the repealed Act if that section were still in operation,

then—

(c) the importer must comply with the relevant requirements of that section as if the repealed Act were in operation; and

(d) if the importer fails to comply with paragraph (c), then action may be brought against the importer (including by the undertaking of a prosecution) as if the repealed Act were still in operation.

(3) If an importer commenced any process associated with the importing of any plant, substance or structure before the relevant day but has not completed the importing by the first anniversary of the relevant day, then the importer will, in relation to the importing of the plant, substance or structure, cease to have the benefit of subclause (1) and the importer must comply with the requirements of the Act in relation to the duties of an importer (as if the Act had been in operation at the time that the importer commenced this process).

(4) Despite a preceding subclause, if—

(a) an importer carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the repealed Act (as taken to be in operation under subclause (2)(d)); and

(b) the importer would, if the calculations, analysis, testing or examination were carried out under this Act, be subject to a requirement set out in section 24(4)(b) or (5) of this Act,

then the importer must comply with those requirements as if that section applied in relation to the plant, substance or structure.

16—Duties of suppliers

(1) Subject to this clause, the duties imposed on a supplier under section 25 of this Act do not apply to or in relation to the supply of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the supplier commenced (or commenced and completed) any process associated with the supply of the plant, substance or structure before the relevant day.

(2) If—

(a) subclause (1) applies in relation to the supply of any particular plant, substance or structure; and

(b) the supplier would be subject to the operation of section 24 of the repealed Act if that section were still in operation,

then—

(d) if the supplier fails to comply with paragraph (c), then action may be brought against the supplier (including by the undertaking of a prosecution) as if the repealed Act were still in operation.

(3) If a supplier commenced any process associated with the supply of any plant, substance or structure before the relevant day but has not completed the supplying by the first anniversary of the relevant day, then the supplier will, in relation to the supply of the plant, substance or structure, cease to have the benefit of subclause (1) and the supplier must comply with the requirements of the Act in relation to the duties of a supplier (as if this Act had been in operation at the time that the supplier commenced this process).

(4) Despite a preceding subclause, if—

(a) a supplier carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the repealed Act (as taken to be in operation under subclause (2)(d)); and

(b) the supplier would, if the calculations, analysis, testing or examination were carried out under this Act, be subject to a requirement set out in section 25(4)(b) or (5) of this Act,

then the supplier must comply with those requirements as if that section applied in relation to the plant, substance or structure.

17—Duties of persons who install, construct or commission plant or structures

(1) In this clause—

designated person means a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure.

(2) Subject to this clause, the duties imposed on a designated person under section 26 of this Act do not apply to or in relation to the installation, construction or commissioning of any plant or structure if the designated person commenced (or commenced and completed) any process associated with the installation, construction or commissioning of the plant or structure before the relevant day.

(3) If a designated person commenced any process associated with the installation, construction or commissioning of any plant or structure before the relevant day but had not completed the installation, construction or commissioning by the second anniversary of the relevant day, then the designated person will, in relation to the installation, construction or commissioning of the plant or structure, cease to have the benefit of subclause (2) and the designated person must comply with the requirements of the Act in relation to the duties of a designated person (as if this Act had been in operation at the time that the designated person commenced this process).

18—Appointments

(1) On the relevant day—

(a) a person holding office as an inspector under the repealed Act will be taken to have been appointed as an inspector under this Act; and

(b) a person holding office as a health and safety representative or deputy health and safety representative under the repealed Act will be taken to hold the corresponding office under this Act (with a term of office corresponding to the balance of his or her term of office under the repealed Act); and

(c) a health and safety committee established under the repealed Act will be taken to be a health and safety committee under this Act (with the membership as constituted under the repealed Act).

(2) An identity card held by an inspector under or for the purposes of the repealed Act immediately before the relevant day will be taken to be an identity card furnished by the regulator under section 157 of this Act (and to comply with the requirements of section157(1) in all respects).

(3) If a process or proceeding—

(a) to appoint a health and safety representative or deputy health and safety representative; or

(b) to establish or constitute a health and safety committee,

has been commenced (but not completed) under the repealed Act before the relevant day (including so as to constitute a work group), the process or proceeding (and any flow-on process or proceeding) may be completed under the repealed Act as if the repealed Act were still in operation and will then have effect for the purposes of this Act.

(4) Subclause (3)(a) will cease to apply at the expiration of 3 months after the relevant day (and any process or proceeding not completed after that period will need to be recommenced under this Act).

19—Training

(1) A person who has completed a course of training approved for the purposes of section 31A of the repealed Act will be taken to have completed any training required under section 85(6) or 90(4) of this Act.

(2) Subclause (1) will cease to apply at the expiration of 12 months after the relevant day (and any relevant course of training under the repealed Act will then cease to have effect for the purposes of this Act).

20—Members of committees

On the relevant day—

(a) a person holding office as a member of the SafeWork SA Advisory Committee under the repealed Act will be taken to be a member of the SafeWork SA Advisory Council under this Act and, subject to clause 3(2) or (3) of Schedule 2, will hold office for the balance of his or her term of office under the repealed Act (and will then be eligible for reappointment under this Act); and

(b) a person holding office as a member of the Mining and Quarrying Occupational Health and Safety Committee under the repealed Act will, subject to clause 12(6) of Schedule 2, continue to hold office for the balance of his or her term of office under the repealed Act (and will then be eligible for reappointment under this Act).

21—Functions and powers of inspectors

(1) An inspector may, on or after the relevant day, perform a function or exercise a power under this Act in relation to anything arising under or relevant to the repealed Act before the relevant day (and this Act will apply in relation to the performance or exercise of such a function or power as if a reference to this Act included a reference to the repealed Act).

(2) Without limiting subclause (1)—

(a) a reference in this Act to a contravention of this Act will be taken to include a reference to a contravention of the repealed Act; and

(b) a reference in this Act to an offence against this Act will be taken to include a reference to an offence against the repealed Act.

(3) Any action taken or information acquired under this Act (including on account of the operation of this clause) may be used for the purposes of the repealed Act (insofar as it may be relevant to an act, omission or circumstance occurring before the relevant day).

(4) Nothing in this clause affects or limits any action that may be taken under or with respect to the repealed Act by virtue of the operation of any other Act or law.

22—Disqualifications

A disqualification under section 30(4), (5), (6), (7) and (8) of the repealed Act (including a disqualification made by a review committee after the commencement of this Act) will have effect for the purposes of section 60 of this Act as if it were a disqualification under section 65.

23—Codes of practice

(1) A prescribed code of practice will be taken to be an approved code of practice under this Act (without the need to taken any other step or to publish any notice under section 274).

(2) A prescribed code of practice under subclause (1) may be varied or revoked by the Minister in accordance with section 274 after the commencement of this clause.

(3) In this clause—

prescribed code of practice means an approved code of practice in force under section 63 of the repealed Act immediately before the relevant day brought within the ambit of this clause by the regulations.

24—Authorisations

(1) A registration, licence, permit, accreditation or other form of authorisation under a designated Act of a class prescribed by the regulations for the purposes of this clause will take and have effect under this Act in the manner prescribed by the regulations (and, to the extent prescribed by the regulations, will be taken to be a registration, licence, permit, accreditation or other form of registration under this Act).

(2) In this clause—

designated Act means—

(a) the repealed Act; or

(b) the Dangerous Substances Act 1979.

25—Exemptions

(1) Subject to this clause, an exemption in force under section 67 of the repealed Act immediately before the relevant day will continue in force for the purposes of this Act, or a corresponding provision of this Act, to an extent that corresponds to the extent of the exemption under the repealed Act.

(2) An exemption under subclause (1)—

(a) may be—

(i) modified from time to time as the Minister thinks fit; and

(ii) revoked at any time by the Minister; and

(b) unless sooner revoked, will expire on the first anniversary of the relevant day.

26—Other provisions

(1) The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of this Act.

(2) A provision of a regulation made under subclause (1) may, if the regulation so provides, take effect from the commencement of this Act or from a later day.

(3) To the extent to which a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by—

(a) decreasing the person's rights; or

(b) imposing liabilities on the person.

(4) The Acts Interpretation Act 1915 will, except to the extent of any inconsistency with the provisions of this Schedule, apply to any amendment or repeal effected by this Act.

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South Australian Bills

WORK HEALTH AND SAFETY BILL 2012