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Contents (2011 - 10)
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Work Health and Safety Act 2011 No 10
Current version for 7 July 2017 to date (accessed 22 August 2017 at 15:10)
Part 13 Division 5
Division 5 The Crown
245   Offences and the Crown
(1)  If the Crown is guilty of an offence against this Act, the penalty to be imposed on the Crown is the penalty applicable to a body corporate.
(2)  For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.
(3)  If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness.
(4)  If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the Crown for that offence if the person referred to in subsection (2) made that mistake of fact.
246   WHS civil penalty provisions and the Crown
(1)  If the Crown contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the Crown is the penalty applicable to a body corporate.
(2)  For the purposes of a WHS civil penalty provision, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.
(3)  If a WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the Crown for a contravention of that provision to prove that the person referred to in subsection (2) had that knowledge.
247   Officers
(1)  A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act.
(2)  A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.
248   Responsible agency for the Crown
(1)  A provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice, penalty notice or notice of entry under Part 7 to be given to or served on the Crown under this Act may be given to or served on the responsible agency.
(2)  If a penalty notice is to be served on the Crown for an offence against this Act, the responsible agency may be specified in the penalty notice.
(3)  If proceedings are brought against the Crown for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be specified in any document initiating, or relating to, the proceedings.
(4)  The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the Crown for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused or defendant in the proceedings are conferred or imposed on the responsible agency.
(5)  The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court’s leave.
(6)  In this section, the responsible agency:
(a)  in relation to a notice referred to in subsection (1) is:
(i)  in the case of a provisional improvement notice, improvement notice or penalty notice, the agency of the Crown the acts or omissions of which are alleged to contravene this Act,
(ii)  in the case of a prohibition notice, the agency of the Crown which has control over the activity referred to in section 195 (1) (a) or (b),
(iii)  in the case of a non-disturbance notice, the agency of the Crown with the management and control of the workplace,
(iv)  in the case of a notice of entry under Part 7, the agency of the Crown conducting the relevant business or undertaking or with the management and control of the workplace, and
(b)  in relation to an offence or proceedings for a contravention of this Act, is the agency of the Crown:
(i)  the acts or omissions of which are alleged to constitute the offence or contravention, or
(ii)  if that agency has ceased to exist, that is the successor of that agency, or
(iii)  if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.