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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 29 April 2017 at 17:29)
Schedule 4
Schedule 4 Savings, transitional and other provisions
Part 1 General
1   Regulations
(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and any Act that amends this Act.
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4)  A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other clause of this Schedule.
(5)  The power to make regulations under subclause (1) extends to authorise the making of regulations whereby the provisions of this Act are deemed to be amended in a specified manner, but any regulation made pursuant to this subclause:
(a)  may only be made for or with respect to matters for or with respect to which this Act makes provision, and
(b)  may not be made so as to have effect after 31 December 2012, and
(c)  ceases to have effect, unless sooner revoked or otherwise ceasing to have effect, on 31 December 2012.
(6)  Subclause (5) (b) and (c) do not apply, and are taken never to have applied, to or in respect of:
(a)  Schedule 18B to the Work Health and Safety Regulation 2011, or
(b)  any other provision of the Work Health and Safety Regulation 2011 that does not specifically state that provisions of this Act are deemed to be amended in a specified manner (whether that provision was made before or after the commencement of this subclause).
Part 2 Provision consequent on enactment of this Act
2   Definition
In this Part:
3   Industry codes of practice
An industry code of practice approved and in force under Part 4 of the OHS Act immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of this Act.
4   Improvement or prohibition notices
(1)  An improvement notice or provisional improvement notice may be issued under this Act in relation to a contravention of the OHS Act or the regulations under the OHS Act that occurred before the commencement of this Act.
(2)  An improvement notice or prohibition notice issued under the OHS Act and in force on the commencement of this Act is taken to be an improvement notice or prohibition notice issued under this Act.
(3)  Any appeal, review or other proceeding pending under the OHS Act in relation to an improvement notice or prohibition notice issued under the OHS Act is taken to be a proceeding pending under the corresponding provision of this Act.
5   Inspectors
(1)  A person appointed as an inspector under the OHS Act and holding office on the repeal of the OHS Act is taken to be appointed as an inspector under this Act, subject to the regulations under this Schedule.
(2)  An identification card issued to the inspector under the OHS Act (or to a person taken to have been appointed as an inspector under section 47A or 47B of the OHS Act) is taken to be an identity card issued under this Act until its replacement under this Act, and may be used by an inspector under this Act even though it refers to provisions of the OHS Act.
6   Investigative powers and related matters
Part 9 (Securing compliance) extends to the exercise of powers in connection with the OHS Act or a regulation under the OHS Act in relation to offences committed against the OHS Act or the regulation before its repeal or in relation to any other matter that continues to have any force or effect (except as provided by or under this Schedule).
7   Continuation of repealed Regulations
Without limiting clause 1, the regulations under that clause may make provision for or with respect to:
(a)  the continued operation after the commencement of this Act of a regulation or provision of a regulation made or continued in operation by or under the OHS Act or by or under an Act repealed by the OHS Act, or
(b)  anything done under any such regulation or provision and having any force or effect immediately before the commencement of this Act.
8   Existing notices, exemptions etc
A notice, direction, order, requirement, exemption or other instrument that:
(a)  is given, issued or made under the OHS Act, and
(b)  is in force on the repeal of the OHS Act,
has effect for the purposes of any corresponding provision of or made under this Act, unless this Act or the regulations otherwise provide.
9   General saving
Anything done under the OHS Act or a provision of the OHS Act that has any force or effect immediately before its repeal is taken to have been done under the corresponding provision of this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act.
Part 2A Prosecution of offences against OHS laws
9A   Definitions
In this Part:
OHS laws means the OHS Act or the OHS Regulation.
OHS offence means an offence against a provision of the OHS laws.
WHS Act means this Act.
WHS laws means this Act or the WHS Regulation.
WHS Regulation means regulations under this Act.
9B   General transitional arrangements for OHS offences
Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Part.
9C   Arrangements for proceedings commenced after WHS Act commencement
Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows:
(a)  proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b),
(b)  proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment.
9D   Arrangements for offences committed on or after 7/6/11 and prosecuted in Industrial Court
Proceedings for an OHS offence alleged to have been committed on or after 7 June 2011 that were commenced in the Industrial Court before the commencement of the WHS Act but not finally determined by the Industrial Court before that commencement are discontinued in the Industrial Court on that commencement and are then to be dealt with:
(a)  summarily before the District Court in its summary jurisdiction, unless paragraph (b) applies, or
(b)  on indictment in the case of proceedings for an offence against section 32A of the OHS Act.
9E   Requirements for workplace death offence prosecutions
Proceedings for an offence against section 32A of the OHS Act cannot be instituted after the commencement of the WHS Act except with the written consent of a Minister of the Crown (including such a consent given before the commencement of the WHS Act) or by an inspector under the WHS Act.
9F   Enforceable undertakings for OHS offences
(1)  Part 11 (Enforceable undertakings) of the WHS Act extends to a contravention or alleged contravention of a provision of the OHS laws that occurred or is alleged to have occurred on or after 7 June 2011.
(2)  This clause does not apply to a contravention or alleged contravention of section 32A of the OHS Act.
9G   Authority to prosecute for OHS offences
(1)  In addition to the persons authorised under section 106 of the OHS Act to institute proceedings for an OHS offence, proceedings for such an offence may be instituted by an Australian legal practitioner representing a person so authorised to institute the proceedings.
(2)  This clause extends to proceedings instituted before the commencement of this Part and before the commencement of the WHS Act.
9H   Validation
(1)  Any act or omission that would have been valid had this Part been in force at the time of the act or omission is taken to be (and always to have been) valid.
(2)  To remove doubt, this clause extends to the commencement or institution of criminal proceedings (including the purported commencement or institution of criminal proceedings) and any act or omission in connection with criminal proceedings.
Part 3 Provisions consequent on enactment of Work Health and Safety Legislation Amendment Act 2011
10   Definitions
In this Part:
(1)  Section 8B of the Coal Mine Health and Safety Act 2002 (the CMHS Act) extends to matters arising before the commencement of this Act as if a reference in that section to this Act included a reference to the OHS Act.
(2)  A reference to this Act in section 14, 15 or 16 of the CMHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act.
(3)  A site-specific occupational health and safety management plan prepared for the purposes of section 75 of the CMHS Act that is in force immediately before the commencement of this Act is taken to have been prepared as a site-specific work health and safety management plan.
(4)  A reference to this Act in section 175 of the CMHS Act includes a reference to the OHS Act in relation to a failure that occurs before the commencement of this Act.
(5)  A reference to this Act in section 191 of the CMHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act.
(6)  A reference to this Act in section 220 of the CMHS Act includes a reference to the OHS Act in relation to a matter or thing done or omitted before the commencement of this Act.
(7)  A reference to the OHS Act in clause 27 (Validation) of Schedule 3 to the CMHS Act includes a reference to this Act if the relevant date under that clause is after the commencement of this Act.
Section 27 of the Crimes (Sentencing Procedure) Act 1999 continues to apply as it was in force before the commencement of this Act to and in relation to an offence against Division 1 of Part 2 of the OHS Act committed before the commencement of this Act.
13   Amendment of Criminal Procedure Act 1986
Sections 215 and 257D of the Criminal Procedure Act 1986 continue to apply as it was in force before the commencement of this Act to and in respect of proceedings for an offence committed before that commencement.
14   Amendment of Industrial Relations Act 1996
(1)  There is no right of appeal under section 197A (Appeals against acquittals in proceedings for offences against occupational health and safety legislation) of the Industrial Relations Act 1996 (the IR Act) after the repeal of that section, except as provided by subclause (2).
(2)  Section 197A of the IR Act continues to apply (despite its repeal) to and in relation to an appeal commenced under that section before its repeal.
(3)  Section 210 (1) (j) of the IR Act continues to apply as it was in force before the commencement of this Act to and in relation to:
(a)  any complaint made about a workplace matter (as referred to in that provision) before the repeal of that provision, and
(b)  the exercise before the repeal of that provision of any function conferred under Division 2 of Part 2 of the OHS Act.
(4)  Section 383A (a) of the IR Act continues to apply (despite its repeal) to and in relation to the recovery of any amount ordered to be paid under section 114 of the OHS Act by the Local Court constituted by an Industrial Magistrate before the repeal of that provision.
15   Amendment of Mine Health and Safety Act 2004
(1)  Section 8 of the Mine Health and Safety Act 2004(the MHS Act) extends to matters arising before the commencement of this Act as if a reference in that section to this Act included a reference to the OHS Act.
(2)  A reference to this Act in sections 18, 19 and 20 of the MHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act.
(3)  A reference to this Act in section 100 of the MHS Act includes a reference to the OHS Act in relation to a serious breach of a provision of the OHS Act or the regulations under that Act that occurs before the commencement of this Act.
(4)  A reference to this Act in section 164 of the MHS Act includes a reference to the OHS Act in relation to a failure that occurs before the commencement of this Act.
(5)  A reference to this Act in section 189 of the MHS Act includes a reference to the OHS Act in relation to a matter or thing done or omitted before the commencement of this Act.
16   Amendment of Mining Act 1992
A reference to this Act in section 378E of the Mining Act 1992 includes a reference to the OHS Act in relation to an order or direction given before the commencement of this Act.
17   Amendment of Rail Safety Act 2008
(1)  Section 138 (1) of the Rail Safety Act 2008 (the Act) continues to apply as it was in force before the commencement of this Act to and in respect of offences committed before the commencement of this Act.
(2)  Section 138 (2) of the Act continues to apply as it was in force before the commencement of this Act to and in respect of improvement or prohibition notices issued before the commencement of this Act.
(3)  Except as otherwise provided by this clause, an amendment made to the Act by the amending Act does not apply to an act or omission that occurs before the commencement of the amendment.
For the purposes of section 244A of the Road Transport (General) Act 2005, a person who commits an act or omission that constitutes an offence under an applicable road law and under the OHS Act is not liable to be punished twice in relation to that offence if it was committed before the commencement of this Act.
For the purposes of section 20 of the Rural Workers Accommodation Act 1969 (the Act), a person who commits an act or omission that constitutes an offence under the Act (or any regulations made under the Act) and under the OHS Act is not liable to be punished twice in relation to that offence if it was committed before the commencement of this Act.
(1)  A reference in section 245A (Evidence—criminal proceedings under WHS legislation) of the Workplace Injury Management and Workers Compensation Act 1998 to work health and safety legislation includes (in relation to an offence committed before the commencement of this Act) a reference to occupational health and safety legislation within the meaning of that Act as in force before that commencement.
(2)  For the purposes of the operation of section 254 of the Workplace Injury Management and Workers Compensation Act 1998 after the commencement of this Act, an injury reported before that commencement by or on behalf of an employer to an inspector under the OHS Act is taken to have been reported to an inspector under this Act.
(3)  The Workers Compensation and Work Health and Safety Council of New South Wales is a continuation of the Workers Compensation and Workplace Occupational Health and Safety Council of New South Wales as constituted under the Workplace Injury Management and Workers Compensation Act 1998 before the commencement of this Act.
Part 4 Provisions consequent on enactment of Work Health and Safety (Mines) Act 2013
21   Definitions
In this Part:
22   Continued operation of provisions under former Acts
A reference in section 229A or 271A to the WHS(M) Act includes a reference to each of the former Acts.
Part 5 Provisions consequent on enactment of Work Health and Safety Amendment Act 2013
23   Definition
In this Part:
24   Authority to prosecute
(1)  Section 230 (1A) as inserted by the amending Act extends to proceedings brought before the commencement of that Act.
(2)  Proceedings brought or purporting to have been brought before the commencement of section 230 (1A) that would have been validly brought had section 230 (1A) been in force at the time the proceedings were brought are taken to have been (and always to have been) validly brought.
25   Court decisions not affected
(1)  An amendment made by the amending Act does not affect any decision of a court made before the date of assent to that Act, except as provided by subclause (2).
(2)  A decision of a court made before the date of assent to the amending Act that would have been validly made had the amendments made by that Act been in force when the decision was made (and that would otherwise not have been valid) is validated.
26   Recommencement of terminated proceedings
(1)  Proceedings for an OHS offence that were terminated before the date of assent to the amending Act because they were not validly instituted may be recommenced whether or not the time for commencing the proceedings has expired if the proceedings would have been validly instituted if the amending Act had commenced before the proceedings were terminated.
(2)  Proceedings cannot be recommenced under this clause later than 6 months after the date of assent to the amending Act.
(3)  Terminated proceedings that were terminated in the District Court may be recommenced under this clause on the basis of the applications and other documents by which those proceedings were last commenced, and any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings.
(4)  In this clause:
OHS offence means an offence against a provision of the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Regulation 2001.
proceedings includes purported proceedings.
terminated includes stayed, dismissed or not proceeded with for any other reason (including nullity).