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Contents (2011 - 10)
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Work Health and Safety Act 2011 No 10
Current version for 6 January 2017 to date (accessed 23 April 2017 at 18:04)
Part 10
Part 10 Enforcement measures
Division 1 Improvement notices
191   Issue of improvement notices
(1)  This section applies if an inspector reasonably believes that a person:
(a)  is contravening a provision of this Act, or
(b)  has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
(2)  The inspector may issue an improvement notice requiring the person to:
(a)  remedy the contravention, or
(b)  prevent a likely contravention from occurring, or
(c)  remedy the things or operations causing the contravention or likely contravention.
192   Contents of improvement notices
(1)  An improvement notice must state:
(a)  that the inspector believes the person:
(i)  is contravening a provision of this Act, or
(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
(c)  briefly, how the provision 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.
193   Compliance with improvement notice
The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.
Maximum penalty:
(a)  in the case of an individual—$50,000, or
(b)  in the case of a body corporate—$250,000.
194   Extension of time for compliance with improvement notices
(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.
(4)  In this section:
compliance period means the period stated in the improvement notice under section 192, and includes that period as extended under this section.
Division 2 Prohibition notices
195   Power to issue prohibition notice
(1)  This section applies if an inspector reasonably believes that:
(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.
196   Contents of prohibition notice
(1)  A prohibition notice must state:
(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
(c)  the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.
(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,
(b)  anything that is not to be used in connection with the activity,
(c)  any procedure that is not to be followed in connection with the activity.
197   Compliance with prohibition notice
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.
Maximum penalty:
(a)  in the case of an individual—$100,000, or
(b)  in the case of a body corporate—$500,000.
Division 3 Non-disturbance notices
198   Issue of non-disturbance 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.
199   Contents of non-disturbance notice
(1)  A non-disturbance notice may require the person to:
(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:
(a)  the obligations of the person to whom the notice is issued, and
(b)  the measures to be taken to preserve a site or prevent disturbance of a site, and
(c)  the penalty for contravening the notice.
(3)  In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site.
(4)  A non-disturbance notice does not prevent any action:
(a)  to assist an injured person, or
(b)  to remove a deceased person, or
(c)  that is essential to make the site safe or to prevent a further incident, or
(d)  that is associated with a police investigation, or
(e)  for which an inspector has given permission.
200   Compliance with non-disturbance notice
(1)  A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.
Maximum penalty:
(a)  in the case of an individual—$50,000, or
(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.
201   Issue of subsequent notices
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.
Division 4 General requirements applying to notices
202   Application of Division
In this Division, notice means improvement notice, prohibition notice or non-disturbance notice.
203   Notice to be in writing
A notice must be in writing.
204   Directions in notices
A direction included in an improvement notice or prohibition notice may:
(a)  refer to a code of practice, and
(b)  offer the person to whom it is issued a choice of ways in which to remedy the contravention.
205   Recommendations in notice
(1)  An improvement notice or prohibition notice may include recommendations.
(2)  It is not an offence to fail to comply with recommendations in a notice.
206   Changes to notice by inspector
(1)  An inspector may make minor changes to a notice:
(a)  for clarification, or
(b)  to correct errors or references, or
(c)  to reflect changes of address or other circumstances.
(2)  An inspector may also, in accordance with section 194, extend the compliance period for an improvement notice.
207   Regulator may vary or cancel notice
Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator.
208   Formal irregularities or defects in notice
A notice is not invalid only because of:
(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.
209   Issue and giving of notice
(1)  A notice may be issued or given to a person:
(a)  by delivering it personally to the person or sending it by post or facsimile 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
(d)  in a prescribed manner.
(2)  The regulations may prescribe:
(a)  the manner of issuing a notice, and
(b)  the steps a person to whom a notice is issued must take to bring it to the attention of other persons.
210   Display of notice
(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.
Maximum penalty:
(a)  in the case of an individual—$5,000, or
(b)  in the case of a body corporate—$25,000.
(2)  A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force.
Maximum penalty:
(a)  in the case of an individual—$5,000, or
(b)  in the case of a body corporate—$25,000.
Division 5 Remedial action
211   When regulator may carry out action
(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:
(a)  the regulator’s intention to take that action, and
(b)  the owner’s or person’s liability for the costs of that action.
212   Power of the regulator to take other remedial action
(1)  This section applies if the regulator reasonably believes that:
(a)  circumstances in which a prohibition notice can be issued exist, and
(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.
213   Costs of remedial or other action
The regulator may recover the reasonable costs of any remedial action taken under:
(a)  section 211 from the person to whom the notice is issued, or
(b)  section 212 from any person to whom the prohibition notice could have been issued in relation to the matter,
as a debt due to the regulator.
Division 6 Injunctions
214   Application of Division
In this Division, notice means improvement notice, prohibition notice or non-disturbance notice.
215   Injunctions for noncompliance with notices
(1)  The regulator may apply to the District Court for an injunction:
(a)  compelling a person to comply with a notice, or
(b)  restraining a person from contravening a notice.
(2)  The regulator may do so:
(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
(b)  whether any period for compliance with the notice has expired.