Schedule 1 Amendment of Occupational Health and Safety Act 2000 No 40
Insert before section 8:(1) A duty imposed on a person by this Division (or by any other provision of or made under this Act) to ensure, so far as is reasonably practicable, health and safety requires the person:(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.(2) For the purposes of this Division (or of any such other provision), in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety, all relevant matters are to be taken into account and weighed up, including:(a) the likelihood of the hazard or the risk concerned occurring, and(b) the degree of harm that might result from the hazard or the risk, and(c) what the person concerned knows, or ought reasonably to know, about:(i) the hazard or the risk, and(ii) ways of eliminating or minimising the risk, and(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.
Insert “, so far as is reasonably practicable,” after “must” wherever occurring in section 8 (1) and (2).
Insert “, so far as is reasonably practicable” after “the following”.
Omit the note. Insert instead:Note. See section 12 for the penalty for an offence against this section and other provisions of this Division. Division 4 makes ancillary provision with respect to those offences, including section 26 (Officers of corporations required to exercise due diligence).
See also Division 2 for duty of employer to consult employees.
Insert “, so far as is reasonably practicable,” after “must”.
Insert “, so far as is reasonably practicable,” after “must” wherever occurring in section 10 (1) and (2).
Insert “, so far as is reasonably practicable” after “must” in section 11 (1).
Insert “reasonably” before “necessary” in section 20 (2).
Omit the section. Insert instead:(1) If a corporation has a duty or obligation under a relevant provision, an officer of the corporation must exercise due diligence to ensure that the corporation complies with that duty or obligation.
Maximum penalty: the same maximum penalty that is applicable to a failure by an individual to comply with the duty or obligation.(2) The following provisions are relevant provisions for the purposes of this section:(a) Division 1 (General duties) of Part 2 (Duties relating to health, safety and welfare at work),(b) Division 2 (Duty to consult) of Part 2,(c) Division 4 (Incidents at places of work) of Part 5 (Investigations),(d) any provision of the regulations that is stated to be a relevant provision for the purposes of this section.(3) In this section, due diligence includes taking reasonable steps:(a) to acquire and keep up-to-date knowledge of occupational health and safety matters, and(b) to gain an understanding of the nature of the operations of the trade, business or other undertaking of the corporation and generally of the hazards and risks associated with those operations, and(c) to ensure that the corporation 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 trade, business or other undertaking of the corporation, and(d) to ensure that the corporation 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 corporation has, and implements, processes for complying with any duty or obligation of the corporation under the relevant provisions of this Act, andExample. For the purposes of paragraph (e), the duties or obligations of a corporation under the relevant provisions of this Act may include:• giving notice of notifiable incidents,• consulting with employees,• complying with notices issued under this Act,• providing training and instruction to employees about occupational health and safety,• ensuring that OHS representatives undertake any required course of training.(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).(4) A person may be proceeded against and convicted of an offence under subsection (1) whether or not the corporation has been proceeded against or has been convicted of an offence in relation to the duty or obligation.(5) An officer of a corporation who is a volunteer is not liable to be prosecuted under this section for anything done or omitted to be done by the person as a volunteer.(6) This section does not affect any liability imposed on a corporation for a failure to comply with the duty or obligation concerned.(7) In this section:
corporation means any body corporate (including a body corporate representing the Crown).
officer means an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth, but does not include a Minister of the Crown acting in that capacity, an elected member of a local authority acting in that capacity or a partner in a partnership.
volunteer has the same meaning as in section 60 of the Civil Liability Act 2002.
Omit the section.
Omit the note to section 32A (3).
Omit the subsection.
Insert “(unless the occupier has a reasonable excuse for not doing so)” after “must”.
Insert at the end of clause 1 (1):
Insert at the end of the Schedule:
Part 7 Provisions consequent on enactment of Occupational Health and Safety Amendment Act 2011(1) In this Part:
amending Act means the Occupational Health and Safety Amendment Act 2011.(2) This Part has effect subject to the regulations under Part 1.Section 26 (as substituted by the amending Act) applies only in respect of acts and omissions occurring on or after the date of assent to the amending Act, and that section (as in force immediately before its substitution by the amending Act) continues to apply in respect of any contravention of this Act or the regulations that is alleged to have occurred before the date of assent to the amending Act.(1) The qualified general duties amendments made by the amending Act apply only in respect of acts and omissions occurring on or after the date of assent to the amending Act.(2) The qualified general duties amendments are all of the amendments made by the amending Act except the following amendments:(a) the substitution of section 26,(b) the amendments of sections 32A and 106 and Schedule 3.