An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 1983; and for other purposes.

Part 1 Preliminary

1   Name of Act

This Act is the Occupational Health and Safety Act 2000.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Objects

The objects of this Act are as follows:

(a)  to secure and promote the health, safety and welfare of people at work,

(b)  to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,

(c)  to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,

(d)  to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,

(e)  to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,

(f)  to develop and promote community awareness of occupational health and safety issues,

(g)  to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,

(h)  to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work.

4   Definitions

In this Act:

associated occupational health and safety legislation means the following Acts and the regulations and rules made under them:

(a)–(d)  (Repealed)

Note. See section 132 for provisions with respect to the application of the above associated legislation.

coal workplace means a place of work to which the Coal Mine Health and Safety Act 2002 applies.

employee means an individual who works under a contract of employment or apprenticeship.

employer means a person who employs persons under contracts of employment or apprenticeship.

exercise a function includes perform a duty.

function includes a power, authority or duty.

improvement notice means an improvement notice issued under Part 6.

industrial organisation of employees means an industrial organisation of employees registered, or taken to be registered, under Chapter 5 of the Industrial Relations Act 1996.

industry code of practice—see Part 4.

inspector means an inspector appointed under Division 1 of Part 5.

investigation notice means an investigation notice issued under Part 6.

mining workplace means a place of work:

(a)  that is a mine to which the Mine Health and Safety Act 2004 applies, or

(b)  at which activities under the Petroleum (Onshore) Act 1991 or the Petroleum (Offshore) Act 1982 are carried out.

occupational health and safety legislation includes:

(a)  the provisions of this Act and the regulations, and

(b)  the associated occupational health and safety legislation.

occupier of premises includes:

(a)  a person who, for the time being, has (or appears to have) the charge, management or control of the premises, or

(b)  a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises.

OHS committee and OHS representative—see section 16.

place of work means premises where persons work.

plant includes any machinery, equipment or appliance.

plant affecting public safety—see section 135.

premises includes any place, and in particular includes:

(a)  any land, building or part of any building, or

(b)  any vehicle, vessel or aircraft, or

(c)  any installation on land, on the bed of any waters or floating on any waters, or

(d)  any tent or movable structure.

previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983.

prohibition notice means a prohibition notice issued under Part 6.

self-employed person means a person who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others.

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

work means work as an employee or as a self-employed person.

WorkCover means the WorkCover Authority constituted by the Workplace Injury Management and Workers Compensation Act 1998.

Note. Words and expressions used in this Act that are defined in the Interpretation Act 1987 have the meanings set out in that Act.

5   Application of Act

This Act applies to all places of work, except as otherwise provided by this Act.

Note. 

1   Section 86 (Notification of accidents and other matters) and section 87 (Non-disturbance of plant etc) do not apply to mining workplaces or coal workplaces.

2   This Act applies to the Crown—see section 118.

3   This Act applies to prescribed plant affecting public safety even if it is not at a place of work or for use at work—see section 135.

6   When employees and self-employed persons at work

For the purposes of this Act:

(a)  an employee is at work throughout the time when the employee is at his or her place of work, but not otherwise, and

(b)  a self-employed person is at work throughout such time as the person devotes to work as a self-employed person.

7   Risks arising from activities at work

For the purposes of this Act, risks arising out of the activities of persons at work include risks attributable to:

(a)  the manner of conducting an undertaking, or

(b)  the plant or substances used for the purposes of an undertaking, or

(c)  the condition of premises (or any part of premises) used for the purposes of an undertaking.

Part 2 Duties relating to health, safety and welfare at work

Division 1 General duties

8   Duties of employers

(1) Employees
An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a)  ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b)  ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c)  ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d)  providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e)  providing adequate facilities for the welfare of the employees at work.

(2) Others at workplace
An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

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:

(a)  section 26—liability of directors and managers of corporations,

(b)  section 28—defence that compliance not reasonably practicable etc.

See also Division 2 for duty of employer to consult employees.

9   Duties of self-employed persons

A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person’s undertaking while they are at the person’s place of work.

10   Duties of controllers of work premises, plant or substances

(1)  A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.

(2)  A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.

(3)  The duties of a person under this section:

(a)  do not apply to premises, plant or substances used only by employees of the person, and

(b)  do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and

(c)  extend to the means of access to or exit from a place of work, and

(d)  apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.

(4)  In this section, a person who has control of premises, plant or substances includes:

(a)  a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and

(b)  a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease).

11   Duties of designers, manufacturers and suppliers of plant and substances for use at work

(1)  A person who designs, manufactures or supplies any plant or substance for use by people at work must:

(a)  ensure that the plant or substance is safe and without risks to health when properly used, and

(b)  provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use.

(2)  The duties under this section:

(a)  apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and

(b)  apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by people at work, and

(c)  extend to the design, manufacture or supply of components for, or accessories to, any plant for use by people at work, and

(d)  extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and

(e)  extend to the supply of the plant or substance to a person for the purpose of supply to others, and

(f)  do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person.

(3)  In this section, manufacture plant includes assemble, install or erect plant.

12   Penalty for offence against this Division

A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty:

(a)  in the case of a corporation (being a previous offender)—7,500 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—5,000 penalty units, or

(c)  in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or

(d)  in the case of an individual (not being a previous offender)—500 penalty units.

Note. Section 17 of the Crimes (Sentencing Procedure) Act 1999 provides, at the enactment of this Act, that the value of a penalty unit is $110. Accordingly, the above maximum penalties are as follows:

(a)  in the case of a corporation (being a previous offender)—$825,000, or

(b)  in the case of a corporation (not being a previous offender)—$550,000, or

(c)  in the case of an individual (being a previous offender)—$82,500 or imprisonment for 2 years, or both, or

(d)  in the case of an individual (not being a previous offender)—$55,000.

Division 2 Duty to consult

13   Duty of employer to consult

An employer must consult, in accordance with this Division, with the employees of the employer to enable the employees to contribute to the making of decisions affecting their health, safety and welfare at work.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—750 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or

(c)  in the case of an individual (being a previous offender)—375 penalty units, or

(d)  in the case of an individual (not being a previous offender)—250 penalty units.

14   Nature of consultation

Consultation under this Division requires:

(a)  the sharing of relevant information about occupational health, safety and welfare with employees, and

(b)  that employees be given the opportunity to express their views and to contribute in a timely fashion to the resolution of occupational health, safety and welfare issues at their place of work, and

(c)  that the views of employees are valued and taken into account by the employer.

15   When consultation is required

Consultation under this Division is required:

(a)  when risks to health and safety arising from work are assessed or when the assessment of those risks is reviewed, and

(b)  when decisions are made about the measures to be taken to eliminate or control those risks, and

(c)  when introducing or altering the procedures for monitoring those risks (including health surveillance procedures), and

(d)  when decisions are made about the adequacy of facilities for the welfare of employees, and

(e)  when changes that may affect health, safety or welfare are proposed to the premises where persons work, to the systems or methods of work or to the plant or substances used for work, and

(f)  when decisions are made about the procedures for consultation under this Division, and

(g)  in any other case prescribed by the regulations.

16   How consultation to be undertaken

Consultation under this Division may be undertaken by any one or more of the following means:

(a)  consultation may be undertaken with an occupational health and safety committee or committees established by the employer and employees for the place of work or the employer’s undertaking (an OHS committee),

(b)  consultation may be undertaken with an occupational health and safety representative or representatives elected by the employees to represent them (an OHS representative),

(c)  consultation may be undertaken in accordance with other arrangements agreed by the employer and the employees.

17   Establishment of OHS committees, election of OHS representatives and other agreed arrangements

(1) OHS committees
An OHS committee is to be established for the purposes of consultation under this Division if the employer employs 20 or more persons in the employer’s undertaking and a majority of those employees request the establishment of the committee or if WorkCover so directs. More than one committee is to be established if a majority of those employees request their establishment and the employer agrees or if WorkCover so directs.

(2) OHS representatives
An OHS representative is to be elected for the purposes of consultation under this Division if at least one of the persons employed by the employer requests the election of the representative or if WorkCover so directs. The employees may elect more than one OHS representative if the employer agrees or if WorkCover so directs.

(3) Other agreed arrangements
Other agreed arrangements for consultation with employees are to be made in accordance with any requirements of the regulations. A Federal or State industrial organisation of employees may represent, for the purposes of consultation under the agreed arrangements, any of those employees who request the organisation to represent them.

(4) General
The employer may make arrangements for the establishment of an OHS committee or the election of an OHS representative whether or not it has been requested by any of the employees of the employer.

(5)  An OHS representative may also be appointed to an OHS committee.

(6)  In the case of a coal workplace, a site check inspector and the electrical check inspector (within the meaning of the Coal Mine Health and Safety Act 2002) for that workplace must be members of any OHS committee for that workplace.

Note. The Coal Mine Health and Safety Act 2002 makes provision for the election or appointment of certain people to carry out inspections and perform other functions on behalf of people who work at a coal workplace.

(7)  In the case of a place of work that is a mine within the meaning of the Mine Health and Safety Act 2004, a site check inspector (within the meaning of that Act) for the mine must be a member of any OHS committee for that place of work.

Note. The Mine Health and Safety Act 2004 makes provision for the election or appointment of certain persons to carry out inspections and perform other functions on behalf of persons who work at mines within the meaning of that Act.

18   Functions of OHS committees and OHS representatives

An OHS committee or an OHS representative has the following functions:

(a)  to keep under review the measures taken to ensure the health, safety and welfare of persons at the place of work,

(b)  to investigate any matter that may be a risk to health and safety at the place of work,

(c)  to attempt to resolve the matter but, if unable to do so, to request an investigation by an inspector for that purpose,

(d)  such other functions as are prescribed by the regulations.

Note. See section 69 for power of employees’ representative to accompany an inspector on an inspection of a place of work. See section 137 for offence of unauthorised disclosure of confidential information by any member of a committee or representative.

19   Regulations with respect to consultation

The regulations may make further provisions with respect to consultation under this Division and, in particular, for or with respect to:

(a)  negotiations between employers and employees (or persons acting on their behalf) with respect to consultation arrangements, and

(b)  the establishment, composition, procedure and functions of OHS committees, and

(c)  the election and functions of OHS representatives, and

(d)  the powers of members of OHS committees and of OHS representatives with respect to inspections of the place of work and the obtaining of information relating to the place of work and other things in relation to the place of work, and

(e)  the training of members of OHS committees and of OHS representatives.

Division 3 Related duties

20   Duties of employees

(1)  An employee must, while at work, take reasonable care for the health and safety of people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work.

(2)  An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.

Maximum penalty:

(a)  in the case of a previous offender—45 penalty units, or

(b)  in any other case—30 penalty units.

21   Person not to interfere with or misuse things provided for health, safety and welfare

A person must not, intentionally or recklessly, interfere with or misuse anything provided in the interests of health, safety and welfare under occupational health and safety legislation.

Maximum penalty:

(a)  in the case of a previous offender—45 penalty units, or

(b)  in any other case—30 penalty units.

22   Employer not to charge employees for things done or provided pursuant to statutory requirement

An employer must not impose a charge on an employee, or permit a charge to be imposed on an employee, for anything done or provided in pursuance of a specific requirement of this Act or the regulations.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—3,750 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—2,500 penalty units, or

(c)  in the case of an individual (being a previous offender)—375 penalty units, or

(d)  in the case of an individual (not being a previous offender)—250 penalty units.

23   Unlawful dismissal or other victimisation of employee

(1)  An employer must not dismiss an employee, injure an employee in his or her employment or alter an employee’s position to his or her detriment because the employee:

(a)  makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or

(b)  is a member of an OHS committee or an OHS representative, or

(c)  exercises any functions conferred on the employee under Division 2 (whether as such a member or representative or otherwise).

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—375 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—250 penalty units, or

(c)  in the case of an individual (being a previous offender)—225 penalty units, or

(d)  in the case of an individual (not being a previous offender)—150 penalty units.

(2)  In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge lies on the defendant.

Note. See section 23A of this Act and sections 210 (j) and 213 of the Industrial Relations Act 1996 for remedies (such as reinstatement or reimbursement) arising from a breach of this section.

23A   Application for reinstatement of employee unlawfully dismissed under section 23

(1)  In this section:

reinstatement includes re-employment.

unlawful dismissal means the dismissal of an employee in contravention of section 23.

(2)  An employee who has been unlawfully dismissed may, within 21 days after the dismissal, apply to the Industrial Court of NSW for reinstatement. The Court may accept an application that is made out of time if it considers that there is a sufficient reason to do so.

(3)  An industrial organisation of employees may make such an application on behalf of the employee.

(4)  The Industrial Court of NSW may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(5)  If the Industrial Court of NSW is satisfied that the applicant was unlawfully dismissed:

(a)  the Court is to order the employee to be reinstated in his or her former employment or in any other employment that is no less advantageous to the employee, except as provided by paragraph (b), or

(b)  if the employer satisfies the Court that it would be impracticable to reinstate the employee—the Court may order the employer to pay to the employee an amount of compensation determined by the Court to be appropriate in the circumstances (but not exceeding the amount of remuneration the employee would have received but for the dismissal in the period of 6 months following the dismissal).

(6)  If the Industrial Court of NSW orders reinstatement under this section, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.

(7)  An application under this section may be made regardless of whether the employer has been convicted of an offence against section 23.

(8)  The Industrial Court of NSW must not make an order on an application under this section if:

(a)  another Act or a statutory instrument provides for redress to the employee in relation to the dismissal, and

(b)  the employee has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

(9)  Evidence of the fact that the Industrial Court of NSW has made an order under this section in respect of the unlawful dismissal of an employee is not admissible in proceedings for an offence against section 23.

(10)  In any proceedings under this section, if an employee establishes that a matter referred to in section 23 (1) (a), (b) or (c) occurred or existed before the employee’s dismissal, it is presumed that the employee was dismissed because of that matter. That presumption is rebutted if the employer satisfies the Industrial Court of NSW that the matter was not a substantial and operative cause of the dismissal.

Note. Appeals against a decision of the Industrial Court of NSW under this section are dealt with under Part 7 of Chapter 4 of the Industrial Relations Act 1996.

24   Person not to hinder aid to injured worker etc

(1)  A person must not, by intimidation or by any other act or omission, intentionally hinder or obstruct or attempt to hinder or obstruct, without reasonable excuse:

(a)  the giving or receiving of aid in respect of the illness or injury of a person at work, or

(b)  the doing of any act or thing to avoid or prevent a serious risk to the health or safety of a person at work.

(2)  A person at a place of work must not, without reasonable excuse, refuse any reasonable request:

(a)  for assistance in the giving or receiving of aid in respect of the illness or injury of a person at work at that place of work, or

(b)  for the doing of any act or thing to assist in the avoidance or prevention of a serious risk to the health or safety of a person at work at that place of work.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—7,500 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—5,000 penalty units, or

(c)  in the case of an individual (being a previous offender)—750 penalty units, or

(d)  in the case of an individual (not being a previous offender)—500 penalty units.

25   Person not to disrupt workplace by creating health or safety fears

A person must not, without reasonable excuse, deliberately create a risk (or the appearance of a risk) to the health or safety of people at a place of work with the intention of causing a disruption of work at that place.

Maximum penalty:

(a)  in the case of a previous offender—75 penalty units, or

(b)  in any other case—50 penalty units.

Division 4 Ancillary provisions

26   Offences by corporations—liability of directors and managers

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a)  he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b)  he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2)  A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3)  Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4)  In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

27   Aiding and abetting etc

(1)  A person:

(a)  who aids, abets, counsels or procures, or

(b)  who, by act or omission, is in any way directly or indirectly knowingly concerned in or a party to,

      the commission of an offence against this Act or the regulations is taken to have committed that offence and is punishable accordingly.

(2)  Subsection (1) does not apply to a person who is acting in the ordinary course of his or her duties as an officer of a Federal or State industrial organisation of employees or employers.

28   Defence

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a)  it was not reasonably practicable for the person to comply with the provision, or

(b)  the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

29   Relationship between duties under this Part and regulations

(1)  Compliance with the regulations is not in itself a defence in any proceedings for an offence against this Part.

(2)  However, a relevant contravention of the regulations is admissible in evidence in any proceedings for an offence against this Part.

(3)  This section is subject to any regulations under section 37.

Note. See Part 4 for provisions relating to the use of approved industry codes of practice in proceedings for offences against this Part.

30   Alternative verdicts

If in proceedings against a person for an offence against a provision of section 8 or 9 the court is not satisfied that the person contravened that provision but is satisfied that the act or omission concerned constituted a contravention of another provision of section 8 or 9, the court may convict the person of an offence against that other provision.

31   Multiple contraventions of general duties under Division 1

(1)  More than one contravention of a provision of Division 1 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 2 or more of those provisions to be charged as a single offence.

(3)  A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence.

32   Civil liability not affected by this Part

(1)  Nothing in this Part is to be construed:

(a)  as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or

(b)  as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.

(2)  Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).

Part 2A Workplace deaths—offence

32A   Reckless conduct causing death at workplace by person with OHS duties

(1)  In this section:

conduct includes acts or omissions.

(2)  A person:

(a)  whose conduct causes the death of another person at any place of work, and

(b)  who owes a duty under Part 2 with respect to the health or safety of that person when engaging in that conduct, and

(c)  who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct,

      is guilty of an offence.

Maximum penalty:

(a)  in the case of a corporation—15,000 penalty units, or

(b)  in the case of an individual—imprisonment for 5 years or 1,500 penalty units, or both.

Note. Section 17 of the Crimes (Sentencing Procedure) Act 1999 provides, at the enactment of this Act, that the value of a penalty unit is $110. Accordingly, the above maximum penalties are as follows:

(a)  in the case of a corporation—$1,650,000,

(b)  in the case of an individual—$165,000 or imprisonment for 5 years, or both.

(3)  It is a defence to any proceedings against a person for that offence if the person proves that there was a reasonable excuse for the conduct.

Note. Section 28 provides general defences for any offence against the Act.

(4)  For the purposes of this section:

(a)  a person’s conduct causes death if it substantially contributes to the death, and

(b)  the death of a person is taken to have been caused at a place of work if the person is injured at the place of work but dies elsewhere as a result of the injury, and

(c)  it does not matter that the conduct that causes death did not occur at the place of work.

(5)  If a corporation owes a duty under Part 2 with respect to the health or safety of any person, any director or other person concerned in the management of the corporation is taken also to owe that duty for the purposes of subsection (2).

(6)  Section 26 (Offences by corporations—liability of directors and managers) does not apply to an offence against this section. However, this does not prevent a director or other person concerned in the management of a corporation from being prosecuted under this section for an offence committed by the director or other person.

32B   Prosecution for offences under this Part

(1)  Proceedings for an offence against this Part may only be dealt with summarily before the Industrial Relations Commission in Court Session, despite anything to the contrary in section 105.

(2)  Proceedings for an offence against this Part may be instituted only with the written consent of a Minister of the Crown or by an inspector, despite anything to the contrary in section 106.

(3)  However, any person who would, but for subsection (2), be entitled to institute proceedings for an offence against this Part may make a written application to WorkCover for a statement of the reasons why proceedings for such an offence have not been instituted in respect of alleged conduct that may constitute such an offence. WorkCover is to provide a statement of those reasons to the applicant as soon as practicable after the application is made, unless the alleged conduct has been referred to the Director of Public Prosecutions for consideration of the institution of proceedings.

(4)  Section 197A (Appeals against acquittals in proceedings for offences against occupational health and safety legislation) of the Industrial Relations Act 1996 does not apply to an offence against this Part.

Part 3 Regulations

33   Regulations: general power

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the objects of this Act.

(2)  Any specific power to make regulations under this Act does not limit the generality of subsection (1).

34   Regulations: specific miscellaneous powers

Regulations may be made for or with respect to the following:

(a)  regulating or prohibiting:

(i)  the design, manufacture, supply or use of any plant, and

(ii)  the design, manufacture, supply, storage, transport or use of any substance, and

(iii)  the carrying on of any process or the carrying out of any activity,

(b)  requiring persons to identify, assess and deal with the risks to the health and safety of persons arising from work (including risks arising from the place of work or from any plant or substance for use at work),

(c)  designating the persons (whether employers, self-employed persons, principal contractors or other persons) who are to be responsible for compliance with the obligations imposed by the regulations,

(d)  requiring a person, before commencing to carry out work of a particular kind at a place of work, to give WorkCover or other persons notice of the proposed work in accordance with the regulations,

(e)  requiring persons, in any circumstances involving a risk to their health, to undergo a biological, hearing or other test,

(f)  requiring persons to not eat, drink or smoke in any circumstances involving a risk to their health,

(g)  measures for detecting and investigating cases in which the health of persons has been affected, including medical examinations, the making of biological, hearing or other tests and the notification of absences from work,

(h)  the making, keeping and inspection of records of matters relating to risks to health and the furnishing of returns and information relating to those matters, including returns and information relating to medical examinations and to biological, hearing or other tests,

(i)  the analysis of any substance,

(j)  the fees chargeable or payable for doing any act or providing any service in connection with this Act or the regulations,

(k)  forms for the purposes of this Act or the regulations,

(l)  the manner of serving notices under this Act or the regulations,

(m)  the review of actions and determinations of an inspector or other person,

(n)  any information to be provided to any person by an inspector or other person exercising functions under this Act,

(o)  any matter relating to occupational health and safety with respect to which regulations may be made under the associated occupational health and safety legislation.

35   Regulations: specific powers with respect to licences, certificates of competency, registration and other authorities

(1)  Regulations may be made for or with respect to the following:

(a)  requiring any person to hold a permit, or any business, plant, substance or place of work to be licensed or registered, in any circumstances or as a condition of the carrying on of any activity or the doing of any thing,

(b)  the granting, renewal, cancellation or suspension of a permit, licence or certificate of registration,

(c)  the conditions on which permits, licences or certificates of registration may be granted,

(d)  the establishment, membership, functions and procedure of a body that grants, renews, cancels or suspends permits, licences or certificates of registration,

(e)  reviews of a decision of a body not to grant or renew or to cancel or suspend a permit, licence or certificate of registration.

(2)  A reference in subsection (1) to a permit includes a reference to a certificate of competency.

36   Regulations may prescribe decisions that are to be reviewable by Administrative Decisions Tribunal

(1)  The regulations may authorise a person to apply to the Administrative Decisions Tribunal for a review of a decision, of a class prescribed by the regulations, that is made under this Act or the regulations.

(2)  Any such regulation cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997.

37   Regulations: adapting duties under Part 2

The regulations may adapt the provisions of Part 2 to meet the circumstances of any specified class of case.

38   Regulations may adopt other publications

The regulations may apply, adopt or incorporate any publication as in force at a particular time or from time to time.

39   Regulations may create criminal offences

The regulations may create offences punishable by a penalty not exceeding 250 penalty units.

39A   Civil liability under regulations

The regulations may provide that nothing in a specified provision or provisions of the regulations is to be construed:

(a)  as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of the provision or provisions, or

(b)  as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings,

but the failure of the regulations to so provide in respect of a provision is not to be construed as conferring such a right of action or defence.

Part 4 Industry codes of practice

40   Purpose of industry codes of practice

The purpose of an industry code of practice is to provide practical guidance to employers and others who have duties under Part 2 with respect to occupational health, safety and welfare.

41   WorkCover may prepare draft codes

(1)  WorkCover may prepare draft industry codes of practice.

(2)  An industry code of practice may refer to or incorporate, with or without modification, a document prepared or published by a body specified in the code, as in force at a particular time or from time to time.

42   Consultation on draft codes

(1)  WorkCover is to consult with such organisations or persons as the Minister may direct about a draft code and may consult with such others as WorkCover thinks appropriate.

(2)  WorkCover is to take into consideration any submissions it receives that relate to a draft code before it makes any recommendation to the Minister for its approval.

43   Approval of codes by Minister

The Minister may, having regard to any recommendation of WorkCover, approve an industry code of practice.

44   Publication, commencement and availability of codes

(1)  An approved industry code of practice:

(a)  is to be published in the Gazette, and

(b)  takes effect on the day on which it is so published or, if a later day is specified in the code for that purpose, on the later day so specified.

(2)  The following are to be made available for public inspection without charge at the principal office of WorkCover during normal office hours:

(a)  a copy of each approved industry code of practice,

(b)  if an approved industry code of practice has been amended, a copy of the code as so amended,

(c)  if an approved industry code of practice refers to or incorporates any other document prepared or published by a specified body, a copy of each such document.

Editorial note. For codes of practice under this section or revoked under section 45, see Gazettes No 143 of 21.9.2001, pp 8014, 8091, 8098, 8106, 8135; No 178 of 18.10.2002, p 8951; No 198 of 10.12.2004, p 9176; No 200 of 17.12.2004, p 9548; No 94 of 29.7.2005, p 3989; No 107 of 26.8.2005, p 6308; No 110 of 1.9.2005, p 7020; No 40 of 31.3.2006, pp 1746, 1762; No 58 of 28.4.2006, p 2582; No 75 of 9.6.2006, p 4268; No 118 of 22.9.2006, pp 8216, 8290; No 139 of 17.11.2006, p 9800; No 189 of 22.12.2006, p 11840; No 11 of 19.1.2007, p 208; No 37 of 2.3.2007, p 1652 and No 26 of 29.2.2008, pp 1388, 1389.

45   Amendment or revocation of codes

An approved industry code of practice may be amended or revoked by an instrument prepared, approved and published in accordance with the relevant procedures of this Part with respect to industry codes of practice.

46   Use of codes

(1)  In any proceedings for an offence against this Act or the regulations:

(a)  an approved industry code of practice that is relevant to any matter which it is necessary for the prosecution to prove to establish the commission of the offence by a person is admissible in evidence in those proceedings, and

(b)  the person’s failure at any material time to observe the code is evidence of the matter to be established in those proceedings.

(2)  A person is not liable to any civil or criminal proceedings by reason only that the person has failed to observe an approved industry code of practice.

Part 5 Investigations

Division 1 Appointment of inspectors

47   Appointment of inspectors (otherwise than in connection with mining workplaces or coal workplaces)

(1)  WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons:

(a)  a statutory officer,

(b)  a public servant,

(c)  a person employed by a public or local authority,

(d)  a person belonging to a class of persons prescribed by the regulations.

(2)  A person appointed as an inspector under this section is not authorised to exercise functions under this Act in relation to a mining workplace or a coal workplace.

47A   Appointment of inspectors in connection with mining workplaces

A person appointed as a government official under the Mine Health and Safety Act 2004 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a mining workplace, but may exercise functions under Division 2 in relation to premises other than a mining workplace for the purpose of investigating any matter under this Act in relation to a mining workplace.

47B   Appointment of inspectors in connection with coal workplaces

A person appointed as a government official under the Coal Mine Health and Safety Act 2002 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a coal workplace, but may exercise functions under Division 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under this Act in relation to a coal workplace.

48   Identification of inspectors

(1)  Every inspector appointed under section 47, or taken to have been appointed under section 47A or 47B is to be issued with an identification card as an inspector that complies with this section.

(2)  The identification card must:

(a)  state that it is issued under this Act, and

(b)  give the name of the person to whom it is issued, and

(c)  state the date (if any) on which it expires, and

(d)  describe the kinds of premises to which the powers of the inspector extend, and

(e)  state any limitations on the functions that the inspector is authorised to exercise under this Act that are imposed by the inspector’s instrument of appointment, and

(f)  bear the signature of:

(i)  in the case of an inspector appointed under section 47, the Chief Executive Officer of WorkCover or an officer approved by the Chief Executive Officer of WorkCover for the purposes of this paragraph, or

(ii)  in the case of an inspector taken to have been appointed under section 47A or 47B, the Minister or a person authorised by the Minister.

(3)  Nothing in this section prevents a single identification card being issued to a person in respect of functions to be exercised as an inspector under section 47A or 47B and functions to be exercised under the Coal Mine Health and Safety Act 2002 or the Mine Health and Safety Act 2004, or both.

Division 2 Powers of inspectors

Note. See Part 6 for powers of inspectors to issue investigation, improvement or prohibition notices.

49   (Repealed)

50   Powers of entry for places of work

For the purposes of this Act or the regulations, an inspector may enter any premises the inspector has reason to believe is a place of work.

Note. See section 57 with respect to entry into any part of premises used only for residential purposes.

51   Notice of entry

(1)  An inspector authorised to enter premises under this Division may enter the premises without notice.

(2)  The inspector must notify the occupier of the premises of the inspector’s presence on the premises as soon as reasonably practicable after entering the premises, unless:

(a)  to do so would defeat the purpose for which the premises were entered or would unreasonably delay the inspector in a case of urgency, or

(b)  the occupier is already aware that the inspector has entered the premises or was notified in advance of when the inspector would enter the premises.

52   Production of authority to enter premises

(1)  A power conferred on an inspector by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the inspector proposing to exercise the power is in possession of the identification card issued to the inspector and produces the identification card if required to do so by the occupier of the premises.

(2)  This section does not apply to a power conferred by a search warrant.

53   Time for entry into premises

(1)  Entry under a power conferred by this Division may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on at the premises.

(2)  This section does not apply to a power conferred by a search warrant.

54   Use of force on entry

(1)  Reasonable force may be used for the purpose of gaining entry to premises under a power conferred by this Division, but only if authorised by WorkCover in accordance with this section or in cases of emergency.

(2)  The authority of WorkCover:

(a)  must be in writing, and

(b)  must be given in respect of the particular entry concerned, and

(c)  must specify the circumstances that are required to exist before force may be used.

(3)  This section does not apply to a power conferred by a search warrant and does not affect section 70 of the Law Enforcement (Powers and Responsibilities) Act 2002.

55   Notification of use of force on entry

(1)  An inspector authorised to enter premises under this Division who uses force for the purpose of gaining entry to the premises must promptly advise WorkCover of the use of force.

(2)  WorkCover must give written notice of the entry to such persons or authorities as appear to WorkCover to be appropriate in the circumstances.

56   Compensation

WorkCover must pay compensation for any loss or damage caused by any inspector in the exercise of any power to enter premises under this Division, but not if that loss or damage is caused because the occupier obstructed, hindered or restricted the inspector in the exercise of the power of entry.

57   Entry to premises used for residential purposes

The powers of entry conferred by this Division are not exercisable in relation to any part of premises used only for residential purposes except:

(a)  with the permission of the occupier of the premises, or

(b)  under the authority conferred by a search warrant.

58   Search warrant

(1)  An inspector may apply to an authorised officer for a search warrant if the inspector has reasonable grounds for believing that a provision of this Act or the regulations has been or is being or is about to be contravened in or about any premises.

(2)  An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of this Act or the regulations.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

59   General powers available on entry

For the purposes of this Act or the regulations, an inspector who enters premises under this Division may do any of the following:

(a)  make searches, inspections, examinations and tests (and take photographs and make video and audio recordings),

(b)  take for analysis a sample of any substance or thing which in the inspector’s opinion may be, or may contain or be contaminated by, a substance (or a degradation product of a substance) that is a risk to health,

(c)  in the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined,

(d)  carry out biological tests in such manner and in such circumstances as may be prescribed by the regulations,

(e)  require any person in or about those premises to answer questions or otherwise furnish information,

(f)  require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector’s functions,

(g)  require the production of and inspect any documents in or about those premises,

(h)  take copies of or extracts from any such documents,

(i)  exercise all other functions that are conferred by, or are reasonably necessary for the purposes of, this Act or the regulations.

60   Powers available on entry to dismantle, take and keep things

For the purposes of this Act or the regulations, an inspector who enters premises under this Division may do any of the following:

(a)  dismantle any plant or other thing on the premises for the purpose of examination, if the inspector believes on reasonable grounds that the plant or other thing has been used in the commission of an offence against this Act or the regulations,

(b)  take any plant, substance or other thing (or any sample of a substance) from the premises, if the inspector believes on reasonable grounds that the plant, substance or other thing has been used in the commission of an offence against this Act or the regulations,

(c)  keep any plant, substance, sample or other thing taken under this section that:

(i)  may reasonably be required as evidence in proceedings for an offence against this Act or the regulations, or

(ii)  might, if not so kept, be used to continue or repeat the offence.

Note. See sections 70–75 for provisions relating to the exercise of the above powers.

61   Care to be taken

In the exercise of a function under this Division, an inspector must do as little damage as possible.

62   Power of inspectors to obtain information, documents and evidence

(1)  An inspector may, by notice in writing served on a person, require the person to do any one or more of the following things if the inspector has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the regulations:

(a)  to give an inspector, 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, any such information of which the person has knowledge,

(b)  to produce to an inspector, in accordance with the notice, any such documents,

(c)  to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.

(2)  A notice under this section must contain a warning that a failure to comply with the notice is an offence.

(3)  An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.

(4)  An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.

(5)  A certified copy provided under subsection (4) is receivable in all courts as if it were the original.

(6)  Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.

63   Power of inspector to demand name and address

(1)  An inspector may require a person whom the inspector reasonably suspects has committed an offence against this Act or the regulations to state the person’s full name and residential address.

(2)  The inspector may request the person to provide reasonable proof of the person’s identity.

(3)  A person who, without reasonable excuse, fails to comply with a requirement of an inspector under this section is guilty of an offence.

Maximum penalty: 15 penalty units.

(4)  A person does not commit an offence against this section if:

(a)  the inspector does not, at the time when the inspector makes the requirement, show the person the inspector’s identification card, or

(b)  the inspector does not, at the time when the inspector makes the requirement, warn the person that it would be an offence not to comply with the requirement.

64   Attendance of inspector at coronial inquest

An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of any employee while employed at a place of work.

65   Protection from incrimination

(1) Self-incrimination not an excuse
A person is not excused from a requirement under this Division to make a statement, to give or furnish information, to answer a question or to produce a document on the ground that the statement, information, answer or document might incriminate the person or make the person liable to a penalty.

(2) Statement, information or answer not admissible if objection made
However, any statement made or any information or answer given or furnished by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)  the person was not warned at an appropriate time that the person may object to making the statement or giving or furnishing the information or answer on the ground that it might incriminate the person.

(2A) Appropriate time for giving warning about incrimination
An appropriate time for warning a person as referred to in subsection (2) (b) is any of the following times:

(a)  the time when the requirement to make the statement or to give or furnish the answer or information is made,

(b)  in the case of evidence required to be given when appearing before an inspector, any time after the start of the appearance before the inspector,

(c)  at or about the time immediately before the person makes the statement or gives or furnishes the answer or information.

(3) Documents admissible
Any document produced by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.

(4) Further information
Further information obtained as a result of a document produced, a statement made or information or an answer given or furnished in compliance with a requirement under this Division is not inadmissible on the ground:

(a)  that the document, statement, information or answer had to be produced, made, given or furnished, or

(b)  that the document, statement, information or answer might incriminate the person.

66   Offence: compliance

A person must not:

(a)  without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division, or

(b)  in purported compliance with a requirement under this Division, or in answer to a question of an inspector asked in accordance with this Division, give or furnish information or evidence or produce a document knowing it to be false or misleading in a material particular.

Maximum penalty:

(a)  in the case of a previous offender—150 penalty units, or

(b)  in any other case—100 penalty units.

67   Offence of impersonating an inspector

A person must not impersonate, or falsely represent that the person is, an inspector.

Maximum penalty: 100 penalty units.

68   Inspector may request assistance

(1)  A police officer may accompany and take all reasonable steps to assist an inspector in the exercise of the inspector’s functions under this Division:

(a)  in executing a search warrant issued under section 58, or

(b)  if the inspector reasonably believes that he or she may be obstructed in the exercise of those functions.

(2)  Any person whom an inspector believes to be capable of providing assistance in the exercise of the inspector’s functions under this Division may accompany the inspector and take all reasonable steps to assist the inspector in the exercise of the inspector’s functions.

(3)  Nothing in subsection (1) is to be taken to limit the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002.

69   Power of employees’ representative to accompany inspector

(1)  An inspector who is proposing to undertake an inspection of a place of work with respect to a matter that may affect the health, safety or welfare of employees at the place of work:

(a)  must, to the extent that it is practicable, consult a representative of the employees or an industrial organisation of employees whose members are employed at the place of work, and

(b)  must, if requested to do so by the representative, take the representative on any such inspection.

(2)  In the case of a coal workplace, the representative of the employees referred to in this section should, to the extent practicable, be a site check inspector elected under the Coal Mine Health and Safety Act 2002 for that workplace.

(3)  In the case of a place of work that is a mine within the meaning of the Mine Health and Safety Act 2004, the representative of the employees referred to in this section should, to the extent practicable, be a site check inspector elected under that Act for that mine.

70  &nbs